Brussels bites back

Anthony Browne reports on the EU’s unabated lust for control of national policies, from law and order to universities, from biotechnology to tax

Brussels

It was perhaps inevitable that the crash in central London of Banana Republic Airlines Flight 101, which killed 453 people and created a swath of destruction across Islington, provoked Britain’s withdrawal from the EU. Few could understand how the judges in the European Court of Justice in Luxembourg had the power to overturn the secretary of state’s ban on the airline for its poor safety record, giving it the right to enter UK airspace. As the body-count mounted, not even the most ardent Europhiles wanted to justify the fact that a panel of unelected and unaccountable judges with no known expertise in aviation safety had the power to overrule the British government on banning airlines from flying into Britain. Public blame of the EU was sealed when it emerged that the reason no one could remember the British government handing over this power to the EU’s supreme court in Luxembourg was that ministers had never publicly announced it — no statement in Parliament, not even a press release. They had gone along with the usual EU method, agreeing things behind closed doors.

You may think I am making this up, but the only bit that’s not true — yet — is the accident. You won’t have read about it in the papers or heard it in Parliament, but the government has indeed agreed in principle to give up its final say on which airlines fly into Britain as part of a harmonised EU aviation-safety regime. The main part of the regime — which, an official admitted to me, involves a wholesale transfer of powers from the UK’s Civil Aviation Authority to the European Aviation Safety Agency in Cologne — was announced last week by the European Commission. Whatever the merits of transferring control of aviation safety in Britain’s skies from London to Brussels, Luxembourg and Cologne — and they do exist — don’t expect to hear a debate about it. ‘It is very politically sensitive,’ one EU official told me.

The day after the Commission announced it was taking control of ‘the entire field of aviation safety’, it announced plans to control the regulation of much of the biotech industry. It unveiled ‘new EU-wide rules to facilitate gene, cell and tissue-based therapies’ which will cover ‘all advanced therapies within a single, integrated and tailored European regulatory framework’ — a potentially critical development for the UK, which leads in this vital technology. A few days later, European governments took a major first step to creating a single European defence market, as part of their strategy of turning the EU from simply an economic and political power into a military power, with a military-industrial base to rival America’s. The following day the EU declared an ‘historic’ agreement by its members to harmonise their overseas aid policies, saying it will add to the geopolitical clout of the Union.

And that was all in one week, during the so-called period of reflection after the Dutch and French rejected the European constitution. Reflection is, apparently, EU-speak for exhausting action — and for doing things the same old way.

Newspapers have declared that the EU is in ‘paralysis’, stymied by the anti-constitution No votes and debilitated leadership in France, Germany and Britain. The Financial Times, the Commission’s unofficial in-house newspaper, declared, ‘The prognosis is poor for EU integration.’ But the death of European integration has been very much exaggerated.

Like a disabled person on crutches who defies his disability by climbing a mountain, or the cancer victim who runs marathons, the threat of paralysis seems to have spurred the EU into a frenzy of activity. But the crisis has done nothing to make the EU reassess its most damaging habits, from its protectionist instincts at the world trade talks to its addiction to farm subsidies.

We had to have the constitution, we were told, otherwise Europe would grind to a halt. We don’t have the constitution, but as one senior Brussels official admitted to me, the Commission can actually do pretty much all that it wants without it. Of course, it would be nice to have the constitution, but there are always other ways. The real problem for the Brussels officials is not to appear too energetic without the constitution — or people might think they never needed it.

From immigration to defence, from law and order to biotechnology, from satellite networks to air-traffic management, from energy to university policy, from taxation to research and development, this paralysis is a dizzying frenzy. With Eurosceptics lulled into a false sense of security, power that governments once kept telling us was the sine qua non of sovereignty is being sucked from national capitals to Brussels.

There is nothing inherently wrong with pooling sovereignty — if the EU didn’t exist you would have to invent it. But because democracy, accountability and flexibility work best at the national level, you should legislate at the national level whenever possible, and only at the EU level when absolutely necessary. The government should also openly debate what powers it is giving away and why, if it wants to avoid the mother of all backlashes, far greater than that seen in France or the Netherlands.

At the Hampton Court summit a few weeks ago, EU leaders agreed to create a ‘common energy policy’, stretching from the joint buying of fuels to developing a joint policy on nuclear power. Britain has spent ages fighting off demands for a common energy policy because — guess what? — we are the only country in Europe with major energy supplies and we want to keep those Luxembourg judges’ and Brussels officials’ hands off them. But when asked why he had performed this dramatic U-turn on this strategically critical issue, Tony Blair said that the Commission would no longer interfere so much — it is such a British-style Commission now — and so it made sense to combine forces. Sceptics might say it was a sop to the French and other Europeans annoyed at Britain insisting on modernising the EU budget by spending some money on things other than French farmscape management — but what would sceptics know?

The same summit agreed that the Commission should draw up policies to ensure that European universities stay as competitive as American, Indian and Chinese ones. Education has always been one of those areas that national governments were still allowed to control, but no more. Now it’s a European issue. Just for good measure, they agreed to set up a European Research Council to co-ordinate researchspending across the Continent. Shortly afterwards, the Commission announced a network of spy satellites which, among other things, will be used to check that EU policies are being enforced.

Another foundation stone of national sovereignty used to be taxation — at least of the non-VAT sort. But at Hampton Court all European leaders including Mr Blair approved a Commission paper calling for a ‘more co-ordinated approach at the EU level’ on tax, claiming that it was essential for the Continent’s economy that countries align their tax systems. As if to prove it was serious, the EU hatched a plan for an inner core of countries to move ahead with companytax harmonisation.

I remember British ministers insisting that the ability to control borders was an indivisible part of being a nation state, which is what we all officially still are (it even said so in the constitution). But the government recently got caught red-handed giving up the veto on immigration policy while denying doing any such thing — although it did retain the right to opt out of any policies it doesn’t like. The EU has now developed a full set of policies on illegal immigration — the treatment and protection that illegal immigrants and failed asylum-seekers can expect, the countries they can be automatically returned to, and re-admission agreements with immigrantsending countries.

In December, a few days before Christmas, it will announce a full legal migration programme, including harmonised conditions for legal entrants (such as length of residency before being granted citizenship), and a European Green Card, like America’s, allowing immigrants to work in any member state (despite record un-employment on the Continent, the Commission insists that Europe needs more immigration because of labour shortages). Another policy to be announced — neatly combining education and immigration — is that all non-Europeans who complete a PhD in Europe will automatically be given EU citizenship. As one Brussels official said to me, ‘Five years ago, anyone calling for a common immigration policy would have been seen as mad. Now we’ve got one!’ Earlier European summits have nearly collapsed because of the insistence of EU countries that they should at least retain control over their law and order systems. Only national governments have the authority the monopoly of legitimised violence, as political scientists say — to jail people. But that was last month. The Luxembourg judges have spoken, and now law and order is a Brussels affair. Socialist MEPs, as federalist as they come, are bouncing up and down declaring that the development is ‘historic’.

First of all, the judges overruled national governments and declared that the Commission had the right to require member states to impose criminal sanctions including possibly prison sentences — for the worst infringements of EU law. Previously, the Houses of Parliament had a monopoly on creating criminal offences, but this ruling opens the way to the EU forcing the British government against its wishes to introduce crimes into British law. If the government is a little slack in actually jailing people for something it doesn’t think should be a crime, the all-powerful Luxembourg judges can insist that the British government upholds EU law by sending British people to jail.

Then, in a second loss of control over criminal policy, the Home Secretary Charles Clarke — so Europhile that he recently told a Brussels magazine that Britain should have joined the euro when it was launched caved in to the Luxembourg court and agreed that Brussels and all its institutions should have a say over a key part of Britain’s counter-terrorism strategy. He had been trying to forge an agreement among EU governments — leaving out the Brussels institutions — that they should all retain data from phone-calls and emails to help in anti-terrorist investigations. The governments agreed, but the European Parliament, the Commission and the Court didn’t — they insisted it was an illegal interference by national governments in an internal market matter, meaning that the EU institutions should be fully involved.

Mr Clarke now supports this measure going through the European Parliament, giving federalist MEPs and Luxembourg judges a say over a policy that Mr Clarke had told us was an essential policy for jailing terrorists.

It is awe-inspiring, living in Brussels, to see the fight for power between national governments and the EU capital. What is even more awe-inspiring is how the EU capital’s determination to gain power always — one way or another — trumps the national capitals’ rather limp insistence on the need to keep it. The French and Dutch ‘No’ votes may have killed off the constitution. They certainly didn’t kill off European integration.

Anthony Browne is the Europe correspondent of the Times.