There are two strange arguments in the pro EU Labour Movement campaign. Both hold no water. In one we are told that all of the EU workers' rights as well possibly as some of our own, will disappear as soon as we leave. We have dealt with this in a previous Newsletter and will return to it again.
The other is that in order to prevent World War Three the 'Left' must follow capitalist scion Yannis Varoufakis with his long track record of helping to impose misery on the Greek people on behalf of the EU and IMF and instantly transform the EU into a socialist paradise.
This might sound a nice idea, but it is actually impossible, a delusion fostered by pro EU fanatics. Forget the lurch to the right in most European countries, forget the dominance of the unelected Commission and ECB by right wingers and forget even the dominance of the toothless EU Parliament by the right wing parties, as Tony Benn consistently pointed out the EU constitution is unique in the world in that it enshrines a commitment to capitalist politics and economics.
To change this constitution the simultaneous approval of 28 member states is required. Some hope! Not even Varoufakis could write a book and give such an after dinner speech that 28 governments would agree with him and put the EU's 23 million back to work and restore collective bargaining and workers' rights. For some the idea provides book sales and the press limelight they crave.
Professor Danny Nichol, a constitutional specialist, is much closer to the truth when he writes:
"Even the dogs on the streets know that David Cameron’s EU “reforms” are pitiful. Indeed, even he no longer mentions them. So why assume that reforming the EU into a “real Social Europe” is any more feasible? It’s when one examines the constitutional obstacles to reform that one realises that the whole idea just doesn’t stack up.
A Social Europe should exclude the TTIP. It is hardly necessary to repeat the arguments against the TTIP and how it will accord companies the right to sue governments to invalidate measures which harm their profitability. Let us assume TTIP is ratified before we secure a Labour government. The EU Treaties contain no provision for denouncing the EU’s agreements with non-EU countries. How, if at all, TTIP may be terminated will depend on TTIP’s own detailed terms. In all likelihood, remaining in the EU means having TTIP for good.
A Social Europe should respect trade unionism. EU law prohibits industrial action which “disproportionately” obstructs the free movement of goods, services, capital and workers – see the Viking and Rüffert rulings of the EU’s Court of Justice. Overriding these rulings would require Treaty amendment, needing common accord of all Member States.
A Social Europe should permit state aid. Thankfully Labour is now an anti-austerity party. As part of its public investment programme, Labour should be able to support domestic industries in order to promote full employment and greater equality. However, EU Treaty provisions mean that the European Commission must approve all state aids for their compatibility with the single market. This includes state aids to the public sector. The system also allows corporations to challenge grants of state aid on competition grounds. Reforming the state aids regime would require Treaty amendment, needing common accord of all Member States.
A Social Europe should respect public ownership. Member States should determine the size of their own public sectors. However, EU legislation consolidates privatisation. Nationalising sectors such as gas, electricity, telecommunications and postal services is unequivocally forbidden by EU liberalising directives, which accord rights of market access to corporations. New public enterprises have to compete with private firms in a capitalist market. Similar legislation on railways is presently going through the EU institutions. Repealing these directives would require a proposal by the Commission – the very instigators of EU “liberalisation”.
Any such Commission proposal would require unanimous approval by the EU Council and the consent of the European Parliament. Furthermore EU Treaty provisions grant companies the right of freedom of establishment – they have the right to establish branches and subsidiaries in other Member States. The EU Court of Justice would almost certainly deem nationalisation of branches and subsidiaries of companies based in other Member States a disproportionate limitation on freedom of establishment. For good measure the Treaties also give corporations the right to sue governments whenever any public monopoly infringes EU competition rules – including within the NHS. These Treaty provisions could only be repealed by common accord of all Member States.
A Social Europe should permit non-racist immigration policies. The EU free movement of persons discriminates against non-whites. EU citizens, overwhelmingly white, enjoy a constitutional right of free movement: non-EU citizens don’t. The refugee crisis shows this systemic discrimination in action. Reform would necessitate Treaty change, requiring the common accord of all Member States.
A Social Europe should allow Labour Party democracy. The supremacy of EU law, first proclaimed by the EEC’s Court of Justice in 1964, remains its foremost constitutional principle. The doctrine means national courts and tribunals must give priority to EU law, setting aside any incompatible national measure however framed. Supremacy drives a coach and horses through Labour party democracy: any policy decisions of Conference which contravene EU law (such as renationalisation for example) may as well be thrown in the bin. To overturn supremacy would require Treaty amendment, and therefore the common accord of all Member States.
To sum up, EU Treaties provide no means of discarding the TTIP; and the other reforms would require a complete absence of neoliberal governments throughout the EU. Sadly these policies are so heavily protected against repeal that a “Social Europe” is in practise impossible to achieve. No doubt “another Europe is possible” – but outside the European Union."
Danny Nicol was Assistant Secretary of the Campaign for Labour Party Democracy from the mid-1980s to the mid-1990s. He is Professor of Public Law at the University of Westminster and author of The Constitutional Protection of Capitalism (Hart, 2010). Reply Reply to All Forward More
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Published by Trade Unionists Against the EU, PO Box 71625 London E17 0RJ