Constructing the EU‘s

Political Identity
Edited by
Sabine Saurugger
Mark Thatcher
Constructing the EU’s Political Identity
Sabine Saurugger Mark Thatcher
•

Editors

Constructing the EU’s

Political Identity

Previously published in Comparative European Politics,

“Constructing the EU’s political identity”, Volume 17,
Issue 4, August 2019
Editors
Sabine Saurugger Mark Thatcher
Sciences Po Grenoble Department of Political Science
Institut d’Etudes Politiques Luiss University Rome
Grenoble, France Rome, Italy

ISBN 978-3-031-17406-3

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature
Switzerland AG 2022, corrected publication 2022
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The original version of the book was revised: The affiliation of Mark Thatcher has
been updated. The correction to the book is available at https://doi.org/10.1007/
978-3-031-17407-0_12
Contents

Constructing the EU’s political identity in policy making . . . . . . . . . . . 1

Sabine Saurugger and Mark Thatcher
Constructing and de-constructing the European political identity:
the contradictory logic of the EU’s institutional system . . . . . . . . . . . . . 17
Sergio Fabbrini
Affirming Europe with trade: deal negotiations and the making
of a political identity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Francesco Duina and Ezekiel Smith
Transforming identity in international society: the potential
and failure of European integration . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Thomas Diez
Do central bankers dream of political union? From epistemic
community to common identity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Erik Jones
The EU’s legal identities and the Court of Justice of the EU . . . . . . . . . 89
Sabine Saurugger and Fabien Terpan
Common market, normative power or super-state? Conflicting
political identities in EU asylum and immigration policy . . . . . . . . . . . . 109
Sandra Lavenex
Direct and market governance paths for the creation
of an EU political identity: cultural heritage policy . . . . . . . . . . . . . . . . 127
Mark Thatcher
Understanding the identity of a policy field: the European
Commission and liberal modernization in the domain of labour
and social policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
Georg Menz

vii
viii Contents

Comment: the EU and European identity . . . . . . . . . . . . . . . . . . . . . . . 161

Neil Fligstein
EU Political identity, integration and top-down analyses: a reply
to Neil Fligstein . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
Sabine Saurugger and Mark Thatcher
Correction to: Constructing the EU’s Political Identity . . . . . . . . . . . . . C1
Sabine Saurugger and Mark Thatcher
Comparative European Politics (2019) 17:461–476
https://doi.org/10.1057/s41295-019-00169-2

ORIGINAL ARTICLE

Constructing the EU’s political identity in policy making

Sabine Saurugger1 · Mark Thatcher2

Published online: 29 March 2019

© Springer Nature Limited 2019

Abstract
Questions of identity have returned to the centre of political debates in Europe. A
key issue is that while the EU has greatly expanded its powers in key policy domains
that traditionally have been the preserve of nation states, its political identity remains
weak. The special issue examines the construction of the EU’s political identity (or
identities), variations in its strength and the nature of its content. Drawing on studies
both on European nation-state formation and on the EU’s identity, we take a top-
down approach and analyse how EU institutions in different major policy domains
have themselves sought to create political identity through policy making. We define
the construction of EU political identity and set out empirically applicable indicators
to assess political identity in policy making. We analyse the construction of iden-
tity through a process-oriented approach that explicitly includes contestation and the
existence of rival political identities. Comparing across policy domains, we suggest
that the ability of EU institutions to construct an EU political identity has been lim-
ited not only by existing national identities but also by the coexistence of rival EU
political identities within policy domains. Hence, it has been difficult for EU insti-
tutions to establish a strong identity, with identity being strongest where there are
clear external alternatives and limited rival identities within the EU.

Keywords Political identity · EU · Policy

The chapter’s original version was revised: Mark Thatcher's affiliation has been updated. The
correction to the chapter is available at 10.1007/978-3-031-17407-0_12

* Sabine Saurugger
[email protected]
Mark Thatcher
[email protected]; [email protected]
1
Univ. Grenoble Alpes, Sciences Po Grenoble, Pacte, 38000 Grenoble, France
2
Department of Political Science, Luiss University Rome, Rome, Italy

1 Reprinted from the journal

 S. Saurugger, M. Thatcher

Introduction

Identity has returned to the centre stage of politics in Europe. A key question concerns
the EU’s political identity. The special issue starts with a puzzle: on the one hand, the
EU has greatly expanded its policy responsibilities and powers and indeed has acquired
many ‘state-like’ features—a common currency, system of law with a supreme court,
myths and symbols, political system, external borders and wide legal powers over other
domains traditionally the preserve of nation states, from monetary policy to welfare,
culture and immigration. On the other hand, the EU’s political identity has failed to
match its increased powers and, at the same time, has become increasingly contested,
as questions arise about its content, coherence and conflicts with national identities.
These issues are increasingly at the core of political debates and crises as the EU’s sup-
posed lack of a political identity is used to attack its lack of legitimacy or ability to cre-
ate a political project that matches its legal and economic powers.
Academically, the EU’s identity is generally analysed through the processes whereby
citizens identify with the EU and the strength of such identification. The study of citi-
zen identification is useful but faces preliminary issues of the extent to which the EU
has a coherent and well-formed political identity with which citizens can identify and
the content of that identity. Our interest lies with these latter matters. Our central ques-
tion is: to what extent, how and why have EU organisations and institutions created an
EU political identity and what is the content of that identity? In particular, we focus on
the construction of the EU’s political identity by EU organisations. Drawing on studies
on both the construction of national identities and on the EU as a ‘state’, we take a top-
down approach by looking at how EU institutions (i.e. organisations), such as the Com-
mission, European Court of Justice or European Parliament and Council, have created
(or failed to create) an EU identity in key policy domains.
We examine EU identity construction through the policy-making process. Thus,
we attempt to define political identity and find major indicators that can be studied
empirically in looking at EU policy making. We then develop claims both through pro-
cess tracing and by variations in identity construction over time and especially across
domains. We explicitly incorporate the possibility that there can be several identities in
a domain and contestation about which should become dominant.
This introduction begins by discussing the study of EU political identity, delineat-
ing our approach from those based on identification by individuals and setting out its
inspiration from studies of the construction of national state identities in Europe and
that on the EU more specifically. We then define political identity and offer indicators
and methods for studying it within the policy-making process, before summarising our
central findings and ending with wider claims for further investigation.

Analysing the EU’s political identity

The literature on political identity is vast (for a good review, see Abdelal et al.
2009). The concept is amorphous, contested and multifaceted. One approach is to
focus on the beliefs and attributes of individuals and their feelings of belonging to

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Constructing the EU’s political identity in policy making

a group. For example, in terms of general definitions, James Fearon distinguishes

between personal identity and social identity, with the latter being a ‘social category,
a set of persons marked by a label and distinguished by rules deciding membership
and (alleged) characteristic features or attributes’ (Fearon 1999: p. 2), while Rog-
ers Brubaker and Frederick Cooper (2000) offer three alternative views of social
identity, namely identification/categorisation; individual self-understanding; and
commonality/connectedness/groupness. After reviewing the literature, Abdelal et al.
(2001) (cf Abdelal et al. 2009) offer three different understandings of identity: an
indirect one, namely the way actors understand the world; a theory of action, based
on the distinction between an in-group and an out-group; role theory in which the
behaviour of actors (or attempts to act) is more or less consistent with actors’ role
expectations flowing from their identities which provide socially appropriate roles
that actors perform.
The literature on identification with the EU is also extensive and long standing,
going back to the earliest debates about neo-functionalism and a transfer of identity
from the national to the European level (for a good overview, see Sassatelli 2009: ch
1). It has enjoyed considerable expansion in recent years (e.g. Checkel and Katzen-
stein 2009; Risse 2010; Bruter 2005, special issue International Organization 2005).
The most prominent studies look at individuals by examining citizen identification,
often using Eurobarometer, polling results or focus groups that measure the beliefs
and behaviour of European citizens. They suggest that a European identity, whether
it is political or social, emerges from processes of creating a shared identity at the
level of citizens (Bruter 2003, 2005; Diez Medrano 2003; Katzenstein and Checkel
2009; Risse 2010; Duchesne et al. 2013; van Ingelgom 2014; Hooghe et al. 2017).
Neil Fligstein (2008), for instance, adopts the premise that a specific form of Euro-
pean society is in the process of emerging via horizontal and vertical relationships
between citizens and elites. He argues that this will doubtless lead to a socially
divided Europe, where those who participate more in European integration will feel
more European than those who do not.
The literature on political identity is helpful for a study of the EU by underlining
that identity is constructed through action and the development of social categories.
Equally, that on citizen identification in Europe is valuable for assessing mass views
of the EU and the electoral context within which actors operate. However, given its
focus on citizens, it does not concentrate on the role of elite policy makers in con-
structing an EU political identity with which citizens can identify. The processes of
making EU policies, their content and their presentation are likely to influence the
extent and content of identity, which in turn may well influence identification by
citizens. This relates to identity being created by top-level institutions rather than
just emerging organically from citizens.
Here, we therefore take an alternative perspective, in looking at the construc-
tion of the EU’s political identity by one group of collective elite actors, namely EU
organisations in policy making. Our approach draws inspiration from work on ‘state
building’ and nations and nationalism in Europe. The literature makes a very useful
distinction between nation, based on feelings of belonging, and a state (e.g., Smith
1991; Guibernau 1999). The two can exist or develop at different times. A nation can
precede a state—for instance, Italy had strong nationalist movements well before the

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 S. Saurugger, M. Thatcher

modern Italian state was created in the late nineteenth century. But crucially for our
purposes, a state can precede a nation or indeed exist without it or contain several
nations or having movements that seek to create new states. Indeed, states can exist
despite many great internal diversities—a classic study by Eugene Weber on France
argued that in the late-nineteenth-century and early-twentieth-century organisations
such as the judiciary, education system, army and church (aided by economic and
technological changes) ‘transformed peasants into Frenchmen’ (Weber 1976).
Indeed, an important literature on nation-state building underlines the role
of institutions such as the church, the army or the educational system in building
national identities (Tilly 1975; Poggi 1978; Skowronek 1982; Elias 1982; Evans
et al. 1985; Breuilly 1993; Smith 1999). Studies show how these institutions acted
not only through coercion but also by creating symbols, myths and ‘invented tra-
ditions’ (Hobsbawm and Ranger 1983) in order to create ‘imagined communities’
(Anderson 2006) that came over time to constitute the publicly stated and collec-
tively shared political identities of nations. State organisations can create identity
over time . They can increase their role at certain key periods, notably in times of
crisis such as war, as well as those of rapid economic and technological develop-
ment. But these processes were not without conflicts. Studies on national identity
building have also indicated how identity can be contested—collective sharing does
not mean that everyone accepts or shares the same identity and that its construction
can be highly political, as actors press alternative identities as part of wider political
struggles.
Studies on the EU build on this research and point to the importance of organisa-
tions that create an identity. The literature is very considerable and diverse, rang-
ing from discussions of how a ‘European’ identity fits with other identities, espe-
cially national and regional ones, to the problems of constructing an EU identity
or to detailed ethnographic studies of specific groups (for just a few examples, see
Risse 2004, 2010; Smith 1992, 1995; Foret 2008; Favell 2011). Much work has
focused on culture and EU building a ‘cultural identity’. Thus, for instance, recently,
Kathleen McNamara has underlined that historically political authorities have used
carefully crafted symbols and practices to create a cultural foundation for rule, most
notably in the modern nation state and argued that the EU has sought to create a
‘critical infrastructure’ of culture to support the expansion of its political author-
ity (McNamara 2015). Oriane Calligaro (2013) has studied how ‘entrepreneurs of
Europeanness’, both within and especially outside EU institutions, have developed
representations of the European project. Vincent della Sala has argued that the EU
has created myths that are similar to those of nation states, such as those concern-
ing its foundation and culture as well as exceptionalism (della Sala 2016). Consid-
erable research has looked at how the EU creates symbols and seeks to develop a
‘taken-for-granted’ or ‘banal’ European identity (Cram 2009; Foret 2008; McNa-
mara 2015). In the field of ‘culture’, efforts by EU institutions to create a European
‘cultural identity’ through visible symbols such as ‘cities of culture’, an EU passport
and maps, as well as narratives in the form of histories and ‘memory’, have been
studied (e.g. Sassatelli 2009; Shore 2000; Calligaro 2013; Delanty 1995).
Other work has examined discourse and norms. Vivien Schmidt has argued that
EU institutions such as the Commission and ECB are central to the definition and

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Constructing the EU’s political identity in policy making

operation of the EU, but that the lack of resonance of EU decision-making which
is often dominated by economic issues with citizens and their limited participation
in its decision-making creates ‘policies without politics’ (Schmidt 2006, 2009). She
also suggests that there are at least four discourses about the EU’s identity: a prag-
matic one in which the EU is a problem-solving entity; a normative one based on
being a value-based community; a principles one in which the EU is a border-free
rights-based post-national union; a strategic one in which the EU is a global actor
that breaks out of traditional realpolitik (Schmidt 2009: p. 24). Equally, the role of
norms in the EU’s development and power is at the core of work on ‘Normative
Power Europe’, whereby the EU has been defined as an ‘ideational’ actor charac-
terised by common principles and constituted as an ‘elite-driven, treaty-based,
legal order’, so that its identity and behaviour are fundamentally based upon a set
of common values such as peace, liberty, the rule of law, democracy, human rights,
social solidarity, anti-discrimination, sustainable development and good governance,
which are reflected in the rhetoric of its leaders (Manners 2002: p. 241; Manners
2002, 2006; Smith 2013; Meunier and Nicolaidis 2006).
The studies on state creation of a political identity are highly relevant to our study.
They show that even in countries used as exemplars of nation states such as France,
political identities were constructed over time and despite features such as multiple
languages and strong conflicts between social groups and geographical areas. They
point to the roles that organisations with powers over key domains such as public
order, education and the economy can play in building such identities. The work on
the invention of traditions is particularly relevant to studies about the roles that EU
organisations play in the construction of an EU policy identity. Equally, research
showing that contestation and conflict have been a central aspect in the slow, and
often incremental, emergence of national identities aids in providing a perspective
when looking at the often acrimonious and/or slow development of the EU.
At the same time, the studies on national identity construction need to be treated
as a starting point and adapted and developed rather than simply ‘read across’ to the
EU. While drawing on existing research on the development of national identity,
which offers a valuable set of tools and claims, we are using as it a source of inspi-
ration rather than seeking an exact replication—since we recognise that suprana-
tional political identity construction in the twenty-first century based on a union of
states is likely to have important differences with national identity construction on
the nineteenth century. Hence, for instance, McNamara (2015) suggests that the EU
often ‘localises’ its symbols which thus have a national element. Moreover, ‘national
identity’ is often a mythical and unrealistically high yardstick for identity, while the
historical literature is itself the subject of intense academic debates.
With respect to studies of EU identity, they too are immensely valuable. They
underline the importance of identity being developed through action, which may be
part of deliberate strategies by the EU to gain legitimacy (Sassatelli 2009; Shore
2000). Considerable discussion concerns identification with Europe, albeit using
different methods than Eurobarometer citizen identification studies (notably quali-
tative and ethnographic) and theoretical frameworks (especially various forms of
constructivist and interpretative approaches). They offer definitions—for instance,
Sassatelli (2009: p. 5) usefully defines European cultural identity as having both

5 Reprinted from the journal

 S. Saurugger, M. Thatcher

individual and collective dimensions, namely a shared public and individual under-
standing of what it means to be European and then individual self-understanding of
those meanings.
We seek to build on these studies of EU identity. In particular, we seek to develop
empirically applicable definitions of political identity (which may differ from cul-
tural identity that is based in part on individual understandings, whereas we focus on
the EU as a collective political body) and that link to the EU’s main activity which
is policy making. We also seek empirically grounded explanatory factors or even
hypotheses about when, how and why the EU does and does not develop a politi-
cal identity. Moreover, recognising that there are different EU identities opens many
questions about their coexistence and which prevail. Finally, while many of the stud-
ies on EU identity construction operate either at a detailed level, looking within spe-
cific organisations or sometimes policy domain, or else at very macro level across
the EU as a whole, this leaves space for the meso-level analysis at the level of policy
domains and ‘medium-level theorising’.
Thus, drawing inspiration from work on nation building (while remaining sen-
sitive to the differences between a nineteenth-century nation state) and on stud-
ies of EU identity construction, we examine key EU institutions in central policy
domains, to see how they seek to construct political identity in their activities of
policy making. Thus, we accept the important argument made in both general and
specifically EU studies that identity is constructed through activities and roles. We
look at whether, how and why institutions construct a political identity for the EU
in setting policy aims, choices and criteria, throughout the policy process. Hence,
the construction of a political identity includes announcing reasons rationales for
policies, the policy aims followed by the legislative process and the production of
policy documents as well as explanations for these. The activities may seem rou-
tine, but not only is policy making the central activity of the EU but also it involves
both coercive tools and symbolic or discursive ones that articulate values. Studying
policy making also allows us to look at the substantive content of an identity—as
articulated by EU institutions. Hence, we examine the strategies and capacities of
these institutions in presenting, explaining and interpreting their policy decisions.
We also seek to contribute to the literature on EU identity by focusing on particu-
lar EU institutions (taken here to mean EU-level organisations) and in highlighting
major explanatory factors and causal processes in EU policy making. We operate at
the meso-level of policy domains, seeking to compare domains to see how their fea-
tures affect EU identity creation. The following section presents the indicators used
in the special issues analysis and develops preliminary hypotheses. We are particu-
larly interested in rival identities in domains—which ones exist and why, and then
which are stronger, when and why.

Studying the EU’s political identity in policy making

Given our focus on top-down identity construction by EU institutions in policy mak-

ing, we now face three related questions. How do we define the EU’s ‘political iden-
tity’ in ways that can be applied empirically in the policy process? What processes

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Constructing the EU’s political identity in policy making

and mechanisms in policy making do we envisage as possible means of its construc-

tion? How can and do we study it empirically in policy making?
Laura Cram (2009), drawing on Tönnies (1955), underlines that the EU’s politi-
cal identity involves belonging to a political community (Gemeinschaft) as distinct
from a functional society (Gesellschaft). As the literature on nation-state building
underlines, constructing such a community involves political institutions that artic-
ulate values publicly—i.e. public communication and discourse that offer narra-
tives, symbols and myths—so that they can be shared (cf. Foret 2008; Cram 2009;
Schmidt 2009). But it also requires a political content or ‘values’, so the EU’s iden-
tity refers to more than just an interstate agreement for economic benefits (Foret and
Calligaro 2018). Values can be seen as building blocks of identity. We refer to val-
ues in this special issue as an understanding that is ‘produced by a social convention
and asserted by an institution’ (Foret and Calligaro 2018: p. xx). As such, conflicts
and controversies lead to situations in which specific values are questioned, and can
then be defined and asserted. Equally, establishing a hierarchy by claiming that such
values take priority over others—e.g. that they are claimed to be ‘fundamental’,
unalterable or at least enjoy precedence over others—is essential in an identity and
separating it from other, lower ranked aims. Indeed, Calligaro distinguishes ‘Euro-
peanness’, which she defines as ‘the presentation of the European project capable of
arousing the citizens’ feelings of belong’ (a definition that itself separates represen-
tations of Europe from actual citizen identification), from European identity which
she says has more fixed characteristics (Calligaro 2013: p. 8, 7); identity does indeed
need to have claims to endure over time and to be fundamental. Moreover, ‘values’
need to be shared, as identity has an internal dimension across the EU. Finally, being
distinct involves an external dimension or differentiation from other polities, as the
studies both on nation-state formation and on the EU as a ‘normative power’ under-
line; such differentiation can be vis-à-vis EU member states or other European poli-
ties or organisations or non-European polities. (Although this does not mean that
such identity must be exclusive—it may well be possible to feel a sense of belonging
to both the EU and other polities, just as one can belong to both a nation and a sub-
national unit or social group.)
Hence, we define EU ‘political identity’ as the articulation of political values that
are claimed to be:

• Fundamental—i.e. unalterable and take precedence over others

• Shared across the EU—i.e. an internal dimension
• Distinct, differing from other polities—i.e. an external dimension (such differen-
tiation can be from EU member states or other European polities or organisations
or non-European polities).

How can such an articulation be found empirically in the EU? Given that the EU is
very much a ‘policy state’ (Richardson 2012), we focus on its policy making. More
specifically, we seek to identify the EU’s political identity by looking at the articula-
tion of values and claims made for them. This may occur in many ways, including:
stated policy aims and priorities, the paradigms/frameworks/models used in making
or justifying decisions, symbols and myths, and claims of community put forward

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 S. Saurugger, M. Thatcher

by EU institutions. These are located in institutions’ statements and discourse,

explanations of policy choices or in legal norms, but also the wording of legisla-
tion and decisions. Hence, we can ask questions such as: Are a coherent set of aims
and criteria for decisions put forward or many contradictory ones? Which aims are
repeated and which not? Which aims are set out as fundamental and which are pre-
sented as subordinate? Which are set out as being ‘shared’ across Europe and how is
such sharing presented?
The political identity of a policy can differ from the content of a policy, which
can be hidden or differ from public claims made for it or the values that led to its
adoption. Thus, for instance, in looking at EU foreign policy, Hebel and Lenz (2016)
suggest that the link between EU identity and policy has two steps: identity con-
struction, in which a collective EU identity is formed from the constituent norms of
its members; identity operationalisation, in which they formulate and apply regula-
tive norms. This offers a useful division (although we may debate whether a col-
lective European identity is only composed of the norms of its members). We are
most interested in identity construction. The articles of this special issue share the
same process-oriented approach, studying the values put forward by EU institu-
tions. Such a process does not take place in a vacuum, since the construction of
identity can be observed inside and through the interactions taking place inside the
EU institution and with external actors such as non-EU institutions, non-govern-
mental organisations and the media. We see political identity as being constructed
by actors, who pursue their own aims, which may range from increasing their power
to legitimating policies, shifting blame or deepening European integration. Identity
construction can be an incremental, non-strategic act or a conscious one (to con-
struct identity strategically). Multiple causal mechanisms are possible—e.g. ranging
from cost–benefit calculation to constructivist/socialisation mechanisms such as role
playing and normative suasion (cf. Checkel 2005). Indeed, our approach draws on
or is similar to strategic constructivism in looking at the strategies, resources and
constraints of actors in constructing an EU political identity. This does not mean that
we see actors as having an overall plan but does mean that we focus on their directed
actions concerning the creation of political norms that can construct an EU political
identity. (We can of course also include unintended effects of their efforts, but the
starting point is their behaviour as they seek to create a political identity.) We adopt
a specifically actor-centred perspective, insisting that although actors are embedded
in cognitive frames they are equally able to develop a strategy that will help them to
achieve their goal (McNamara 1998; Parsons 2002; Blyth 2002; Hay and Rosamond
2002; Jabko 2006; Hay 2004, 2006; Zeitlin and Vanhercke 2018; for a critical view,
see Bell 2011). From this perspective, cognitive frames do not solely constitute the
environment in which actors are embedded (a constitutive logic), but are also tools,
consciously used by these same actors to attain their goals (a causal logic) (Gofas
and Hay 2010), in an environment in which power is unequally distributed amongst
actors (Saurugger 2013, 2016).
In terms of empirical coverage, we focus on the closest EU equivalents to
those suggested by studies both of European and American state building, such
as the European Commission, Court of Justice of the EU, European Council and
European Parliament, who make policies in key domains. While accepting that

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Constructing the EU’s political identity in policy making

there are contrasting views and individuals ‘entrepreneurs’ within these organisa-
tions (cf Calligaro 2013), for our purposes, we treat them as actors who set out
values in the policy-making process. In terms of time periods, although ‘identity’
has been an EU policy since the 1973 Declaration on European Identity made
at the European Summit of 14–15 December 1973 at Copenhagen, we focus on
recent years, when identity has become part of wider responses to economic,
financial and political crises which have called into question membership of
the EU, the euro or the goal of ‘ever closer union’. We compare across different
domains that are usually central to national political identities (without claiming
that the models of a Western nation state can just be read across to the EU)—i.e.

• Constitutional identities—e.g. the articulation of the right allocation of pow-

ers between different levels of government and also the overall norms of the
polity
• Judicial identity—e.g. the role and limits of the power of the judiciary, espe-
cially over politics
• Cultural identity—the ‘common heritage’ and past of the polity
• External identity—the borders of the polity and whom is included and who is
a ‘foreigner’, who is a migrant, immigrant, etc.
• Macroeconomic policy—e.g. the allocation of fiscal and monetary powers, the
aims of the central bank and the paradigm used for governing an economy.
• Social or welfare identity—the rights and protections that workers and citizens
can expect.

We explicitly include conflict, since one of the basic assumptions of this spe-
cial issue is that political identity is contested—within EU organisations, among
EU organisations and then by other non-EU actors. EU organisations can face
opposition to the creation of an EU identity in a domain. Equally, there can be,
and often are, rival political identities—about EU aims (e.g. for constitutions,
between a union des patries and an ever closer union), models (e.g. how mon-
etary policy should work and its relationship with national fiscal policy) or pri-
orities (e.g. rights of workers versus those of capital). We examine how actors
such as some national governments, or civil society actors, offer opposing identi-
ties, to those currently presented by EU institutions. Hence, contributors examine
whether, to what extent and when EU has overcome opposition to create a politi-
cal identity in a domain and if there are rival identities, which ones are pressed
and which dominate.
It may be useful to state briefly what we are not doing. As noted, we do not look
at whether citizens actually identify with the political identity that EU organisa-
tions create. Equally, we do not seek to examine the effects of the EU’s identity on
national identities (on this, see Cram 2009; Smith 1995). Nor do we study the inter-
nal identity of EU organisations, such as the views and norms of their staff in their
dealings with each other or the role of individual entrepreneurs (for such studies,
see, for example, Hooghe 2002; Kassim et al. 2013; Calligaro 2013). Equally, we do
not look at the effects of the EU on national identities. While these are all important,
space and focus put them beyond our reach.

9 Reprinted from the journal

 S. Saurugger, M. Thatcher

Findings

The articles of this special issue approach these issues through three groups of stud-
ies. Contributions encompass a broad understanding of the EU’s internal and exter-
nal political identity (Fabbrini 2019; Diez 2019) and then concentrate on specific
European institutions in the construction of EU’s policy identities in various policy
domains—external trade and internal single market through case studies of GMO
foods and audiovisual services (Duina and Smith 2019), law (Saurugger and Ter-
pan 2019), monetary policy (Jones 2019), ‘social Europe’ and labour markets (Menz
2019), immigration (Lavenex 2019) and cultural policies (Thatcher 2019).
The first finding is that the EU institutions have sought actively to create politi-
cal identities in policy making. They have developed and articulated values that go
beyond the benefits of economic exchange. They have promoted values that limit
and harness economic competition, sometimes in surprising circumstances. Thus,
for instance, the ECB has tried to encourage greater political union; the Commission
has sought to introduce ‘social Europe’ or cultural exceptions to free movement of
goods, while the European Court has expanded values of social and human rights
alongside market creation (Jones 2019; Menz 2019; Thatcher 2019; and Saurugger
and Terpan 2019). Sometimes the articulation of political values has formed part of
economic strategies (e.g. in trade) and sometimes it has been an alternative (e.g. in
immigration) (Duina and Smith 2019, and Lavenex 2019).
However, the second finding is that the extent and coherence of a distinct EU
identity vary greatly. In some domains, the EU has developed a well-established and
consistent identity. The two clearest examples are external trade and external bor-
ders, where the EU has developed a clear identity (Duina and Smith 2019 and Diez
2019). In others, there are several distinct and well-formed EU identities—the clear-
est example is the constitutional nature of the EU between a supranational approach
and intergovernmental approaches, and in immigration and asylum policy among
three identities (statist, normative power and market) (Fabbrini 2019 and Lavenex
2019). But in other fields, EU identity is less developed—wavering over time in
labour policy (Menz 2019) or less differentiated from national ones in certain parts
of cultural heritage policy (Thatcher 2019).
The third finding is change and development over time, with an expansion of
identity and also modifications in its content. In almost all cases, EU institutions
have expanded their attempts to create an EU identity. Sometimes this has gone
hand in hand with the expansion of policy powers or soon after expanded powers
were granted. Examples are macroeconomic policy, where after monetary union, the
ECB began to press for a stronger EU political identity (Jones 2019) or the European
Court’s contribution to the creation of an integration through law identity of the
EU (Saurugger and Terpan 2019). But expansion of EU policy has not always led
to the growth of a supranational EU identity—on the contrary, intergovernmental
approaches have expanded in the 2000s (Fabbrini 2019). Nor is such an expansion a
necessary condition for EU institutions striving to develop an EU identity—EU poli-
cies in cultural heritage remain modest but attempts to expand its identity through
symbols and discourse began before the EU gained competencies and have grown
(Thatcher 2019).

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Constructing the EU’s political identity in policy making

The cases studied, as well as cross-case comparison, can help identify explana-
tory factors and attendant causal processes that aid or constrain the expansion of
the EU’s political identity—or often identities—and the content of those identities.
The first and powerful factor seems to be whether the domain is external or internal
to the EU. In the former, EU organisations have found it much easier to craft an EU
identity in matters that involve non-EU actors. Thus, for instance, Francesco Duina
and Zeke Smith (Duina and Smith 2019) show the contrasts between the Commis-
sion’s capacity to find common values and a public discourse in international nego-
tiations concerning food and GMOs and its ability to do in the internal market on
communications. Using a constructivist approach, Thomas Diez (Diez 2019) argues
that setting borders is constitutive of identity, as apparently economic or technical
matters such as customs rules establish an identity of being ‘within the EU’ or out-
side of it. The authors point to several processes and factors that can apply strongly
in external domains. One is institutional—for instance, exclusive powers in external
trade negotiations. Another is opposition to other countries—such as the USA in
food standards or Turkey and Russia in setting borders. In contrast, the efforts by EU
organisations to build a differentiated EU identity in internal matters face stronger
several constraints that relate to four other explanatory factors.
Indeed, the second factor concerns the existence of long-standing and powerful
rival national identities. This is clearest in heritage policy where national identities
are closely associated with conceptions of the nation state or in immigration and
asylum policies where the right to exclude ‘foreigners’ is seen as a key preroga-
tive of the modern nation state (Thatcher 2019; Lavenex 2019). (Of course, whether
these national policies are really fundamental to national identities can be ques-
tioned—many ‘national traditions’ were invented in the nineteenth century and/or
belong to specific groups and not the entire nation, especially the contemporary one,
while many legal restrictions on immigration are relatively recent, but beliefs about
their relationship with nation states are powerful and can impede an EU identity.)
Hence, in certain domains, EU institutions face stronger and better formed national
identities and opponents armed with arguments that such domains should remain the
preserve of the national level as they are essential for national identity, than in other
domains.
Third, however, there are also conflicting EU identities. As Sergio Fabbrini (Fab-
brini 2019) underlines, the EU has a supranational identity which is challenged by
an intergovernmental one. Which identity predominates is linked to institutional
rules and allocation of powers. Supranational institutional arrangements create
strong incentives for organisations such as the Commission and Court to promote a
supranational identity, whereas the Council is keener on an intergovernmental one.
Hence, in policy areas that are more intergovernmental, there are stronger conflict-
ing identities. One good example is in immigration and asylum policy, where inter-
governmental arrangements predominate, and hence, a ‘statist’ identity whereby
member states have great autonomy predominates over other, more supranational
identities such as an economic one or a rights-based one (Lavenex 2019). In con-
trast, in domains which are more supranational, EU organisations have greater
capacities to build an EU identity. Thus, for example, the Court of Justice has been
able to pass judgements and set out the values of integration through law as well as

11 Reprinted from the journal

 S. Saurugger, M. Thatcher

balancing economic values with other ones thanks to its position as the EU’s high-
est court (Saurugger and Terpan 2019). But supranational organisations may also
have stronger incentives to do so. The most striking example here is macroeconomic
policy, where Erik Jones (Jones 2019) argues that the unelected ECB has promoted
the development of an EU political identity in order to have greater legitimacy in
the domain and also to share if not offload responsibilities for inherently political
decisions.
The fourth factor is whether EU policies have expanded, in either a domain or
a related domain. Sometimes such expansion has seen EU organisations engage
in strong and successful attempts to build an EU identity, as in the social market
policies under Delors or external trade policies in battles with USA over GMOs
(Menz 2019 and Duina and Smith 2019). The example of macroeconomic policy
also indicates that as the EU’s policy competencies expand, so policy makers seek
an identity to legitimate their actions (Jones 2018). Sometimes this has occurred
as EU policy in one area led to pressures for more a policy identity in a related
one—for instance, as the single market developed in the 1980s, the Commission
led by Jacques Delors sought to offset liberalisation with a ‘social market’ identity,
although this was then reduced in the 2000s (Menz 2019). But there is no automatic
link between such expansion and the creation of an EU political identity—relatively
limited policy powers in cultural heritage have not prevented a series of attempts by
the Commission to build an EU identity, although these have largely been unsuc-
cessful (Thatcher 2019).
The fifth explanatory factor is the interests and preferences of member states.
They affect the scope and content of the EU’s political identity(ies). Georg Menz
shows how the content of the EU’s identity in labour market policy has evolved over
time according to not only the preferences of its leaders but also those of national
leaders—from a ‘social market’ under the Delors Commission to a more liberal
one based on values of competitiveness in the 2000s as even social democratic gov-
ernments at the national level also adopted such values (Menz 2019). Moreover,
although frequently national politicians have sought to limit the development of an
EU domain, being able to do so most strongly in intergovernmental domains, they
have also aided its growth by ascribing values to the EU that they oppose or wish
to contrast with their own. In turn, EU organisations have reacted, sometimes by
rejecting the labels attached to their actions—for instance, in macroeconomic pol-
icy—and sometimes by underlining the distinctiveness of EU identity—as in a set
of common European values that are opposed to nationalistic ones in parts of cul-
tural policy. The current populist wave that identifies the EU with values such as
economic neo-liberalism, openness to immigration and austerity may thus have the
effect of strengthening the EU’s identity.

Conclusions

Studying the EU’s political identity from a top-down perspective adds important
insights to our understanding of state building. While we do not enter debates about
whether the EU is a state or what kind of state it might be, the articles of this special

Reprinted from the journal 12

Constructing the EU’s political identity in policy making

issue show under which circumstances supranational institutions contribute to the

creation of specific policy identities. The contributions to this special issue provide
five explanatory factors that could be the basis for hypotheses on the construction
of European—or even wider regional integration-wise—policy identities. First,
it seems that external policies are more prone to have a clear identity, as they are
established against an external opponent, be it the third country or another regional
organisation. Second, the more coherent a national policy identity, the more difficult
it is for European institutions to establish a European policy identity, as we have
seen negatively in the area of the European heritage or social policy or positively
in the field of the contribution of the ECB to the political identity construction of
EMU. Third, when the preferences and interests of member states differ widely, a
window of opportunity can allow European organisations to establish a distinct pol-
icy identity, as we have seen in the field of market integration through law. Finally,
the existence of conflicting interests does not necessarily lead to an impossibility of
European policy identities. The coexistence of different policy identities is a real-
ity in the EU as it is at the national level. Instead, the key issue for us is to whether,
how and why EU institutions can construct policy identities and the content of such
identities.

Acknowledgements We wish to warmly thank the Centre d’Etudes Européennes at Sciences Po Paris,
the research centre Pacte at Sciences Po Grenoble and the School of Advanced International Studies,
Johns Hopkins University Bologna and especially the Patrick McCarthy fund for funding and host-
ing workshops in which papers were presented and discussed; we also wish to thank the discussants at
those workshops, notably for this article, Florence Haegel, Colin Hay, Matthias Matthijs and Manuela
Moschella, as well as Kathleen McNamara and Sophie Jacquot; we also express our gratitude to the edi-
tors of the journal for their support.

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Publisher’s Note Springer Nature remains neutral with regard to jurisdictional claims in published
maps and institutional affiliations.

Sabine Saurugger is Professor of Political Science and Research Dean at Science Po Grenoble (France)
and research fellow at Pacte.

Mark Thatcher is Professor of Political Science at Luiss University, Rome, and visiting professor, London
School of Economics.

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Comparative European Politics (2019) 17:477–490
https://doi.org/10.1057/s41295-019-00171-8

ORIGINAL ARTICLE

Constructing and de-constructing the European political

identity: the contradictory logic of the EU’s institutional
system

Sergio Fabbrini1

Published online: 29 March 2019

© Springer Nature Limited 2019

Abstract
The article investigates the forms that political identities have assumed in the EU
through the functioning of its institutions. On the basis of the analytical distinction
between supranational and intergovernmental institutional settings, the article shows
that such a dual decision-making system has generated a contradictory logic with
regard to the construction of political identity. If the supranational institutions have
aimed to construct a European political identity with state-like features, the inter-
governmental institutions have instead operated to de-construct that identity in order
to preserve the national identities of the member states. With the multiple post-Lis-
bon Treaty crises, not only has the contrast between the two concepts increased, but
the competition among national identities within the intergovernmental setting has
triggered their transformation into nationalist claims.

Keywords European political identity · National identities · Nationalism · EU

supranationalism · EU intergovernmentalism

Introduction

The article aims to answer the research question of this special issue through a macro-
institutional analysis. How is it possible that the European Union (EU) has increased
its powers after 60 years of integration, while a European political identity has become
highly contested? So contested in fact as to see the first secession from the EU, as hap-
pened with Brexit. It is the article’s argument that such a mismatch is the result of the
institutional system (here understood as the Brussel’s political institutions) set up to
govern that expansion of powers. The EU’s political system consists of institutions pro-
moting different views on the EU’s identity, views which became a significant source

* Sergio Fabbrini
[email protected]
1
Luiss, Rome, Italy

17 Reprinted from the journal

 S. Fabbrini

of contrast in the period of the 2010s multiple crises (the article will not consider tech-
nical institutions, such as the European Central Bank and the European Court of Jus-
tice, although they certainly contribute to the process of identity’s formation within the
EU, see Jones, and Saurugger, both this volume). On the base of the analytical dis-
tinction between supranational and intergovernmental institutional settings, the arti-
cle investigates the process of identity formation in the former and in the latter. If the
supranational institutions have incentivised the political actors (operating within them)
to promote a European political identity, the intergovernmental institutions have instead
incentivised the national leaders (coordinating within them) to de-construct that iden-
tity on behalf of the preservation of the national identities of the member states. This
has not prevented the formation of interstitial institutional forms pragmatically combin-
ing the two approaches (Heritier 2007), particularly in new policies such as the bank-
ing union (Fabbrini and Guidi 2018). However, the two approaches have continued to
structure the EU decision-making process. The 2009 Lisbon Treaty, indeed, formalised
a sort of truce between the two approaches. With the clause celebrating the necessity
to “respect the equality of Member States…as well as their national identities”, it rec-
ognises the importance of national identities in the functioning of the EU. At the same
time, with the clause confirming the necessity to create “an ever closer union”, it lends
legitimacy to the state-like view of European political identity. That truce has ended
with the post-Lisbon Treaty multiple crises. Those crises have shown the unrealistic
character of the state-like approach pursued by supranational actors, but also the de-
constructing nature of the multiple “statenesses” approach pursued by national leaders.
In those crises, moreover, the defence of national identity has ended up in triggering the
resurgence of nationalism. The contrast between the supranational and intergovernmen-
tal decision-making framework has thus generated a contradictory logic regarding the
construction of political identity in the EU.
The article will be structured as follows. First, it will introduce the basic concepts
of the analysis, those of political identity and institutional differentiation. Second, it
will discuss the incentives of supranational political institutions (the Commission
and the European Parliament or EP) to construct a European political identity, iden-
tifying the fundamental grammar that has allowed members of those institutions to
think and speak European. Third, it will discuss the implications of the recognition
of national identities as institutionalised in the intergovernmental political institu-
tions of the EU. The aim is to show how those national identities have become the
source of nationalist claims by national leaders at times of crisis. Finally, the conclu-
sion will bring the main argument back home, namely that the EU’s political iden-
tity will continue to be a contrasted and contested process, unless a different institu-
tional system reassesses relations between supranational and national identities in a
union of states.

Political identity and institutional system

The very concept of a European political identity continues to be the object of

intense theoretical debate (McNamara 2015; Risse 2010; Checkel and Katzenstein
2009; Brubaker and Cooper 2000). According to the co-editors of this special issue

Reprinted from the journal 18

Constructing and de-constructing the European political …

(Saurugger and Thatcher, this volume), political identity consists of “the self-under-
standing of a group of political actors as expressed in the institution’s norms, val-
ues and aims”. In this interpretation, political identity is not a static concept but a
constructed social reality (Saurugger 2013). It is the outcome of strategic action,
pursued by political actors endowed with decision-making power, aiming to use the
logic of the institution for maximising their influence within it and promoting the
institution’s mission. According to Saurugger and Thatcher (this volume), in inves-
tigating political identity, the “central question is to what extent, how and why have
EU organisations and institutions created an EU political identity and what is the
content of that identity?”. The construction of a European political identity thus
requires the existence of institutions that support that aim and actors who have an
interest in pursuing or are willing to pursue it. The purpose is the construction of
a sense of belonging to a European polity, distinct from the member states, a senti-
ment necessary to give legitimacy to the decisions taken through the polity’s insti-
tutions. Here I will focus on the Brussels’ political institutions (Commission, EP,
European Council and Council), thus discussing their institutional logic as the con-
ceptual structure within which ideas and views (on the identity of the institution)
emerge. If it is true that institutions think (Douglas 1987), they do that through a
grammar that combines their legal text and political logic. Here resides a crucial dis-
tinction between the construction of political identity in the EU and in nation states.
If national political institutions have mostly fostered and supported a shared national
identity among the actors operating within them, the same cannot be said in the case
of the EU. In the EU, the understanding of institutions’ norms, values and aims is
highly differentiated. The institutional functioning of the EU encourages a pluralism
of different political identities, a European identity through the supranational institu-
tional framework and national identities through the intergovernmental institutional
framework. Thus, the decision-making models institutionalised in the EU justify dif-
ferent strategic actions, leading to the maximisation of incompatible political iden-
tities. Identities are operationalized in conceptual terms, not on data derived from
opinion polls as the Eurobarometer.
In fact, the expansion of the EU’s powers and competences has not been accom-
panied by the same decision-making structure. Whereas the evolution of the sin-
gle market has been, and continues to be, regulated by a supranational institutional
framework (based on the triangular relations between the Commission, the Council
and the EP), the Europeanization of the new strategic policies which entered the
EU agenda after Maastricht has been managed mainly through an intergovernmen-
tal institutional framework (based on the special relation between the Council and
the European Council) (Fabbrini 2015a). The supranational EU of the 1957 Rome
Treaties, set up to create a common market which then became a single market with
the 1986 Single European Act (SEA), has been joined, since the 1992 Maastricht
Treaty, by an intergovernmental EU to decide those strategic policies traditionally
at the core of state power (Genschel and Jachtenfuchs 2014), such as Common For-
eign and Security Policy (CFSP), Justice and Home Affairs (JHA) and the economic
side of Economic and Monetary Union (EMU). While the supranational EU epito-
mises the project of integration through law, the intergovernmental EU celebrates
the idea of integration through voluntary policy coordination among member state

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 S. Fabbrini

governmental leaders and ministers. The former type of integration is based on

legally binding decisions imposed on member state governments in the name of the
European interest, the latter is based on the voluntary implementation of political
decisions taken consensually by national leaders and ministers (Fabbrini and Puet-
ter 2016). Certainly, new intergovernmental treaties as well as old pacts forecast
sanctions for those member states dis-respecting the rules, but the final sanctioning
decision is always in the hands of national governments (i.e. in the Treaty on Stabil-
ity, Coordination and Governance in the Economic and Monetary Union, where the
Commission can decide a sanction against a national government, the national min-
isters of the Council can stop it, although through a ‘reversed qualified majority’).
To be sure, other mixed decision-making methods are used in one or other policy or
sub-policy fields of the EU. However, assuming the existence of just two structurally
different decision-making regimes or constitutional frameworks facilitates the inves-
tigation into the process of political identity’s formation. The institutional systems
of the EU convey different incentives regarding European political identity, a dif-
ferentiation that has ended up creating contrasting views about that identity, particu-
larly at times of crises.
Certainly, one might ask whether European and national identity are (or are not)
incompatible. Legally speaking, they are not. Indeed, the 2009 Lisbon Treaty for-
malises their coexistence within the EU. In the Preamble, it confirms the resolu-
tion of the signatory states “to continue the process of creating an ever closer union
among the peoples of Europe”, a closer union and not a more perfect union, that is a
union that is expected to supersede its constituent states. At the same time, TEU Art.
4(2) confirms that “the Union shall respect the equality of Member States before the
Treaties as well as their national identities, inherent in their fundamental structures,
political and constitutional, inclusive of regional and local self-government”. The
Lisbon Treaty thus mirrors a compromise between different interpretations of the
nature of the EU and its political identity. In the former case, it claims a political
identity superior to (or inclusive of) national identities, in the latter case a politi-
cal identity subordinated to (or ancillary to) national identities. This compromise
has been purposely ambiguous. After all, ambiguity is a necessary device for deal-
ing with unsolvable dilemmas. However, the multiple post-Lisbon Treaty crises have
called into question that compromise. Having exploded in policy fields under the
management of the intergovernmental framework, the redistributive effects of those
crises (such as the euro or migration crises) have deepened the divisions within the
intergovernmental institutions (Genschel and Jachtenfuchs 2017), the unintended
consequence of which has been the re-assertion of nationalism as a tool of interstate
negotiation. Indeed, according to Bastasin (2015), the euro crisis has led to the first
European war of interdependence. Brexit is the dramatic outcome of the successful
mobilisation of those sentiments. Through the intergovernmental institutions (Euro-
pean Council and Council), national interests are directly projected into the centre
of the EU institutional framework. Those interests have inevitably circumscribed
the attempt to construct a European political identity, let alone to give ‘stateness’
or ‘statehood’ to the EU. In the dual constitutional system formalised by the Lis-
bon Treaty, European and national identities can coexist legally, but not necessarily
politically. While the supranational framework favours the formation of a European

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Constructing and de-constructing the European political …

political identity, the intergovernmental framework functions according to the oppo-

site logic of fostering the preservation of national identities. Let me more precisely
clarify the correlation between institutional system and political identity in the EU.

Supranational institutions and the European political identity

Since the 1941 Ventotene Manifesto, the founders and promoters of European inte-
gration as a political project have aimed to form a new state (called as “interna-
tional state”) and a new people, the United States of Europe with its European citi-
zens. In the supranational approach adopted to build a common market, there was
the implicit assumption that such a market is the necessary step in order to move
towards a closer (political) union. Two myths seem to have influenced the supra-
national actors engaged in constructing a European political identity distinct from
the national identities of member states, a statist myth and a demos myth. Myths,
indeed, matter also in the EU (Della Sala 2009). The statist myth is entwined in
the design and logic of the Commission and the demos myth in the development
of the EP. Since the 1957 Rome Treaties, the Commission has clearly been viewed
as the institution in charge of representing the European interest as distinct from
the national interests represented by the (then) Council of Ministers (subsequently
only Council). This identification of the Commission with the European interest has
never been questioned by the following treaties. As TEU, Art. 17 (1) asserts, “The
Commission shall promote the general interest of the Union and take appropriate
initiatives to that end”. In order to fulfil its role, the Commission, states TEU Art.
17 (3), “shall be completely independent. (…) the members of the Commission
shall neither seek nor take instructions from any Government or other institution,
body, office or entity”. Although the members of the Commission shall be chosen
from among the nationals of the member states, as both individuals and as a body
they must act in a fully autonomous manner. The European mission entrusted to
the Commission is epitomised by its monopoly of legislative initiative. Although
this monopoly is not celebrated as a defining feature of the institution (in the “Insti-
tutional Provisions” of the TEU) but only as a procedural aspect of the legislative
process (TFEU, Art. 289 and Art. 294), only the Commission (and not the Council
or for that matter the EP) can submit a proposal of regulation or directive to one or
other legislative chambers.
It seems clear that the design and role of the Commission correspond to a mainly
French myth on state building from above. The Commission as a body of highly
qualified civil servants recalls the public administrators who promoted, if not led,
the construction of the French state (Greenfeld 1992). The myth of the French
experience has influenced the formation of the EU’s civil and legal order, from the
administrative structuring of the general directorates of the Commission (which
brings to mind the technocratic body at disposal of the French state’s planning activ-
ities) to the founding of the College d’Europe in Bruges (recalling the model of the
French École Nationale d’Administration) where to train and then select the future
functionary elite of the EU supranational institutions. The Commission’s officials
have developed the ethos of functionaries whose duty is to build (from above) the

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 S. Fabbrini

European political identity (Kassim et al. 2013). The Commission has continued to
display the most pronounced predisposition, among the EU supranational institu-
tions, to interpret the EU as a state in the making. Through its highly efficient solu-
tions to common problems, this has been the traditional assumption of the Com-
mission, the loyalty of national citizens would gradually transfer from domestic to
European institutions. The neo-functional belief (Haas 1958) has represented the
new rationale for an old myth, i.e. the building from above of a state and a political
identity at the European level as the further or ultimate step of a historical process of
removing boundaries (Bartolini 2005). Successive generations of Commission offi-
cials and leaders have continued to be committed to the building of a supranational
Europe. It is within the Commission that the most determined constructors of the
European political identity have continued to operate—constructors who use their
technical expertise in providing public goods to national citizens on the assumption
that this would help transfer their political identity from the national to the Euro-
pean level. For the Commission’s actors, the claim to take on more and more com-
petences and powers has been justified by the necessity to increase the EU’s output
capacity, in its turn a condition for building a EU with its own political identity.
The Commission with its administrative structure is not only the closer approxi-
mation to the French concept of gouvernement, but it is also the institutional embod-
iment of the project to build a European state. The statist myth is predominant
in the French political culture where the state is considered to be the epitome of
political modernity. Since France was a state before than a people, for many French
politicians engaged in the European project (from Jean Monnet to Valéry Giscard
d’Estaing to Emmanuel Macron) the formation of a European state (or, as Macron
said in his 26 September 2017 speech at La Sorbonne, “la refondation d’une Europe
souveraine, unie et démocratique”) was and is considered a necessary condition for
creating a European demos. The absence of a European state would leave the rights
of European citizens unprotected. Indeed, several leaders of the French left opposed
the EU Constitutional Treaty (CT) in the 2005 referendum, precisely because that
Treaty was assumed to advance the cause of a private market unconstrained by pub-
lic institutions (or, in the campaign’s jargon, the cause of a neo-liberal society and
not of democratic citizenship). For others (on the right), the absence of a European
state makes democratic order implausible. Several neo-Gaullist leaders opposed the
CT during the same referendum because of that Treaty’s presumption that a consti-
tutional order might be built without the support of a state as centralised organisa-
tion of public authority (Lacroix 2010).
If the Commission’s construction of the European political identity has had an
administrative bias derived from the French myth of state building, the perspective
pursued by the EP and its members (MEPs) for constructing that identity has instead
had a demos bias derived from the post-second world war German myth of nation-
building. For the main political parties of the EP (as the Christian democrats and
the Socialist democrats within which German politicians have been traditionally the
most influential), the construction of a European political identity has been consid-
ered as the necessary outcome of the politicisation of the EP elections along the tra-
ditional left vs right cleavage (Hix 2008). Since the direct election of the EP in 1979,
the leaders of the main political parties have tried to politicise the EP elections, on

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Constructing and de-constructing the European political …

the assumption that politicisation would reduce the appeal of national political pro-
cesses, thus creating a European demos divided along partisan rather than national
lines. For the parliamentary party leaders, the formation of a European demos con-
stitutes the systemic condition for moving onwards in the building of a European
polity. It was this supranational conception of a European demos that caused the
transformation of the EP from a legislature representing the citizens of the member
states (as established by the 1992 Maastricht Treaty) to a legislature representing
European citizens (as celebrated by the 2009 Lisbon Treaty). In fact, TEU Art 10 (2)
states: “Citizens are directly represented at Union level in the European Parliament”.
The assertion that the MEPs are the representatives of European citizens is equiva-
lent to the assumption that there is a European people that is waiting to be politically
represented. Other proposals, advanced by several MEPs and EP advisers and offi-
cials, go in the same direction (Duff et al. 2015: 8), namely “to create a pan-Euro-
pean seat from which 25 MEPs would be elected from transnational party lists”, or
to introduce a compulsory clause that requires national parties to compose multi-
national lists for the EP elections. Finally, as Brexit leaves open 73 parliamentary
seats held by British MEPs, the European Parliament Committee on Constitutional
Affairs voted, in January 2018, to replace them (or few of them) with transnational
lists representing multiple countries. In short, the EP mission should be to create
a European demos, divided along party and not national lines (as happens within
member states). This aim was explicitly expressed by the main European political
parties when they decided to run the EP elections of 2014 with a spitzenkandidat for
the office of the Commission president (for different views, see Christiansen 2016;
Fabbrini 2015b). Also this parliamentary approach to political identity has a statist
view of the EU. Making the EP the centre of the EU decision-making process and
freeing the EP from national divisions means creating the conditions for a centrali-
sation of public authority in the (only) institution representing the European demos.
Certainly, the Council cannot be excluded from the legislative process. However, it
is only the EP that can encourage the construction of a European demos. The out-
come should be the formation of a parliamentary state whose centralising thrust will
be necessarily mitigated by the legislative chamber representing member state gov-
ernments (the Council). According to the main EP leaders, in fact, the latter institu-
tion should go back to including, as its highest level, the European Council of the
heads of state and government, thus abolishing the distinction between the two inter-
governmental institutions (a distinction, however, prescribed by the Lisbon Treaty).
Here the mobilising myth comes from Germany because of the latter’s experi-
ence of building a nation before the state (Spruyt 1994). Indeed, this was, and
continues to be, the German approach not only to democracy, but also to Euro-
pean integration. For German institutions, such as the Bundesverfassungsgericht
or Federal Constitutional Court, the pre-existence of a European demos is the
very condition for transferring powers and competences to the EU. Since Ger-
many started from a demos, for German lawyers it follows that the EU can claim
autonomous power (from the member states) only if legitimised by the exist-
ence, at the continental level, of a politically homogeneous people. This theoret-
ical frame has accompanied the German Federal Constitutional Court from the
decision in Manfred Brunner and Others vs The European Union Treaty of 1994

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 S. Fabbrini

to the 2012 ruling on the constitutionality of the Fiscal Compact (or Treaty on
Stability, Coordination and Governance in the Economic and Monetary Union).
Since a European demos does not yet exist, as stated in the 1994 decision that
the EU “is not a State based on the people of one European nation”, then the
EU powers should be limited and put under the direct control of national demo-
cratic institutions (courts and parliaments). Indeed, the German lawyers’ criti-
cism has gone as far as to call into question even the distribution of EP seats, a
distribution that does not correspond to strictly proportional representation (PR)
criteria (over-representing the small states like Malta vis-à-vis the larger states
like Germany through the principle of ‘degressive proportionality’). In short, as
a German legal scholar (Grimm 2000: 254) observed, “The European level of
politics lacks a matching public”. The myth of the German experience has influ-
enced EP political leaders in their efforts to create a political community out of
the politicisation of the parliamentary elections. The construction of a European
political identity would correspond with the formation of supranational partisan
identities superseding national ones. This is why EP political leaders have tried
to construct a European demos through the politicisation of party competition
(Hoeglinger 2016). In its turn, the construction of a European political identity
through either the Commission or the EP has taken advantage of the decisions
of the ECJ that have defined a transnational legal space where a supranational
political identity can prosper. Through its decisions, the ECJ has indeed trans-
formed the Treaties into a quasi-constitutional document, increasing the politi-
cal salience of the market-building process. Through the interplay of the Com-
mission, the EP and the ECJ, the supranational institutions of the EU, which
dominate the institutional framework of the single market, have aimed to trans-
form the EU into a parliamentary state in the making, supported by an efficient
administration and legitimised by a European demos. The socialisation taking
place within those supranational institutions has fed their sense of mission of
creating a Europe with its own political identity.
However, since the Maastricht Treaty, the EU has come to institutionalise
also an intergovernmental institutional framework to manage the new strategic
policies which entered the EU agenda with the end of the Cold War. The Lisbon
Treaty abolished the pillar structure where those policies were contained, but it
left unaltered their intergovernmental decision-making process. Indeed, because
the post-Lisbon Treaty multiple crises have concerned policies (such as the eco-
nomic policy of EMU, the security policy for dealing with terrorism, the migra-
tion policy as a sub-field of justice and home affairs) under intergovernmental
control, it has been inevitable that the European Council and the Council have
come to play a central decision-making role. Owing to the redistributive effects
of those crises, within those intergovernmental institutions interstate divisions
have emerged which have hardened the national identities constituting them.
The implication of intergovernmentalism has been the institutionalisation, at the
Brussels level, of the differentiation between national interests and identities.
The multiple post-Lisbon Treaty crises have transformed the latter into national-
ist sentiment or claim.

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Constructing and de-constructing the European political …

Intergovernmentalism and the resurgence of nationalism

The supranational EU was thus the only game in town from the 1957 Rome Trea-
ties to the 1992 Maastricht Treaty, but no longer after the end of the Cold War.
The unitary structure of the EU has been differentiated and the decision-making
process for new policies has been structured by a different method where national
governments play a dominant role (Puetter 2014; Bickerton et al. 2015). National
governments coordinate within fully institutionalised arenas, such as the Council
and above all the European Council. With the Lisbon Treaty, the European Coun-
cil has become a genuine executive institution, separated from the Council that
remains a legislative institution, equipped with a quasi-permanent president that
epitomises its distinctive nature. Although the Commission and the EP have tried
to promote a state-inspired idea of European political identity, their attempts have
necessarily come to be constrained, if not curtailed, by the growing decision-
making role played by the institutions representing national governments in Brus-
sels, i.e. the European Council and the Council, with their multiple ‘statenesses’.
By their very nature, these latter institutions represent the national identities of
the EU member states, national identities whose respect is guaranteed by TEU
Art. 15 (4) which explicitly states: “Except where the Treaties provide otherwise,
decisions of the European Council shall be taken by consensus”.
If political identity derives from the actors’ understanding of the institution’s
norms, values and aims, then national government leaders coordinating within
the European Council and Council have ended up interpreting their role as rep-
resentatives of national views, although operating within a EU framework. A
difficult balancing act. Indeed, that equilibrium has come to be shaken by the
explosion of crises with dramatic redistributive effects. It is incorrect to detect
causation between the intergovernmental logic and the resurgence of nationalism,
but correlation has certainly been at work. It is arguable that it has been through
intergovernmental institutions that nationalism has re-entered the EU political
process. Of course, nationalism has never disappeared in Europe. However, if an
institution, based on the coordination of national governments, is allowed to play
an exclusive decision-making role, then it is plausible to assume that its members
are incentivized to stress their national interests and claims in that decision-mak-
ing process. In any case, nationalism has continued to be a feature of the political
process of the islands and peninsula of north Europe and of the east European
countries. Since its accession to the EU, the United Kingdom (UK) came to head
a coalition of member states that viewed integration primarily as a process of
strengthening the single market without, however, affecting national sovereignty.
These member states regarded the deepening of the integration process, which
has taken place from the Maastricht Treaty onwards, as a threat to their national
sovereignty and identity, that needed to be countered by pressing for further
enlargement in order to increase the patchy nature of the Union (Geddes 2013).
As the then British Prime Minister David Cameron said on January 23, 2013:
“The European Treaty commits the member states to lay the foundation of an
ever closer union among the peoples of Europe … We understand and respect the

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 S. Fabbrini

rights of others to maintain their commitment to this goal. But for Britain—and
perhaps for others—it is not the objective”. Indeed, the UK decided to leave.
If the British defence of national sovereignty sprang from the distinct histori-
cal phenomenon of democratic nationalism epitomising the political identity of
the country (Garton Ash 2001), the same cannot be said, instead, for the national-
ism of east European countries. It was nationalism that enabled the UK to preserve
democracy in two world wars (MacCormick 1996), whereas nationalism operated
in the opposite direction in east Europe in the same period. For the leaders of both
groups of countries, nevertheless, the intergovernmental institutions of the EU have
represented the most favourable environment for asserting their national interests,
expressing their presumed untouchable or non-negotiable national red-lines. The lat-
ter have been used by those national leaders for carving out a differentiated politi-
cal status for their countries in the EU. Before 2016, in addition to opting out from
adopting the euro (with Denmark and Sweden), the UK (and Poland), in exchange
for signing the Lisbon Treaty, obtained the possibility of opting out from the Char-
ter of Fundamental Rights. The Czech Republic joined the two countries in opting
out from the Charter with the 2013 Treaty on the accession of Croatia. The UK,
Ireland and Denmark also opted out from legislation adopted through qualified
majority voting (QMV) in the field of police and judicial co-operation in criminal
matters. Ireland and the UK opted out from the Schengen Agreement on the free
circulation of persons. Denmark opted out from foreign and security policies. The
UK, Ireland, Denmark and Sweden (and later also the Czech Republic) asked and
obtained regular opt-outs from parts of the Treaties or from recognising the juris-
diction of the ECJ concerning specific social and economic rights. The UK did not
sign the Fiscal Compact Treaty (the only then member state not to do so, given that
the Czech Republic finally signed it in March 2014). The governments of the east
European member states have fought to defend their restored national sovereignty
after almost half a century of enforced Soviet domination. The so-called “Visegrad
group” (Poland, Hungary, the Czech Republic and Slovakia) was particularly vocif-
erous in opposing, within the European Council, the quota system devised by the
Commission for the re-allocation of refugees in the migration crisis of 2015–2016.
Those opt-outs and opposition have represented the institutional or political protec-
tion of specific national identities in crucial policy fields (becoming, in some cases,
EU hard law), negotiated within the intergovernmental institutions.
The national leaders of the west continental European member states have played
a different game within the intergovernmental institutions. For the western continen-
tal states, nationalism was historically the force that erased democracy, owing to a
set of cultural and ecological factors. Nationalism sustained the centralist ambitions
of dominant authoritarian groups. Inevitably, for the member state leaders inheriting
this historical experience and memory, integration has represented the antidote to
the virus of authoritarian nationalism. It was this group of countries that needed to
sign the peace pact to bring to an end the long era of European wars (Hendricks and
Morgan 2001). Even though these countries recognised the process of integration
as a political necessity, they, however, came to interpret it in different terms in dif-
ferent historical periods (Lacroix and Nicolaidis 2010). This is the case particularly
of France, which has displayed quite ambivalent and oscillating sentiments towards

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Constructing and de-constructing the European political …

an integrated Europe. At the beginning of the integration process a federal Europe

was considered, by statesmen such as Robert Schuman and by public officials such
as Jean Monnet, as the only solution to rivalry with Germany and particularly in
relation to the threat represented by the reconstruction of the latter; in the 1960s the
Gaullist component of the French political elite moved the country in the opposite
direction, aggressively contrasting any significant transfer of sovereignty from the
national to the European level. French ambivalence towards the form of the political
project of the union has been the cause of the cyclical stop-and-go in the integration
process. The new demographic and economic asymmetry between France and the
re-unified Germany led French politicians to fear a European state that might think
and speak German.
Since then, French governments have generally supported the perspective of
an intergovernmental union, functioning according to a logic of unanimity, within
which the French government could check and veto decisions it was against. Thus,
French élites managed their ambivalence through the strengthening of the intergov-
ernmental logic. It has been in the European Council that such French ambiguity has
been traditionally expressed (Calleo 2001). French government leaders have oper-
ated within the European Council to prevent Germany from transforming its demo-
graphic and economic superiority into political influence. It was the French political
elite that put forward, since Maastricht, a model of integration based on the pool-
ing (not the sharing) at the European level of national sovereignties on the sensitive
areas of foreign policy and the Eurozone governance. In promoting the intergov-
ernmental model, the French political elite have assumed that the model could be a
powerful defender of national interests and identities. Indeed, political intergovern-
mentalism has become the mainstream perspective of the French political elite, par-
ticularly after the popular rejection of the Constitutional Treaty or CT in the 2005
referendum (Grossman 2008) and the electoral growth of the Front national (now
Rassemblement national). It is not yet clear whether this intergovernmental perspec-
tive, with its nationalist implications, will be also adopted by president Emmanuel
Macron as the institutional tool for creating a new European sovereignty.
Ambivalence towards the supranational model has emerged also in the other
western continental member states. Although in countries like Germany, Italy, the
Netherlands or Spain, there has been a widespread (although not always majori-
tarian) acceptance of the EU as a political project, nevertheless the latter has not
always been interpreted in supranational terms. Consider the German case. In Ger-
many, a country favouring supranational (if not federal) solutions in the first decades
of integration, with the 1990 reunification, the national predisposition has moved
in direction of intergovernmental perspectives. Supported by powerful sectors of
the financial and legal establishment, the intergovernmental governance of the eco-
nomic policy side of EMU has come to fit well with the post-unification German
national interests. Becoming a member just like the others, German chancellors and
ministers have pursued or defended openly their national interests in the intergov-
ernmental institutions. The predominant role played by Germany in the intergov-
ernmental institutions of the euro-area (like the Euro Summit and the Eurogroup),
and the perception (although controversial) held by the German public that indebted
euro-area member states have played moral hazard against their country’s finances,

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 S. Fabbrini

has paradoxically increased the nationalist sentiment of German elites and public
opinion (Bulmer 2014). A sentiment that has led to the formation and electoral influ-
ence of a party, the Alternative für Deutschland or AFD, claiming an unprecedented
nationalist agenda. Indeed, in the Bundestag’s elections of September 24, 2017, the
AFD conquered 94 seats getting 12,6 per cent of the popular vote (and becoming the
first or the second party in the five eastern Länder).
The constitutional decision to create a specific intergovernmental regime to man-
age policies which are traditionally close to national interests has been justified by
the necessity to guarantee the respect of each national identity when managing those
policies (Wessels 2016). The intergovernmental logic formally excludes recourse to
majoritarian solutions to resolve interstate disputes. The intergovernmental institu-
tional framework aims to guarantee the plurality of national identities and interests.
However, in facing unprecedented crises, the consensual approach of national lead-
ers has been overtaken by nationalist urges (because of the necessity to be accepted
or re-elected back home). Thus, a number of those leaders have turned to national-
ism as a tool of interstate negotiation and domestic legitimacy. One has only to think
of the deep divisions, induced by the euro crisis or the migration crisis, between the
leaders (in the former case) of north and south member states and (in the latter case)
of west and east member states. Lacking internal and external supranational checks,
the intergovernmental institutions have become the vehicle for expressing nationalist
views, thus transforming the acknowledgement of national identities into the affir-
mation of national interests (sometimes in an antagonistic manner). The quasi-per-
manent president of the European Council and Euro Summit or the president of the
Eurogroup have not always been able to keep that antagonism in check. Although
the intergovernmental institutions have created a European space for policy discus-
sion, that space has been also filled with nationalist leaders and claims.
National identity and nationalism frequently overlapped in their historical devel-
opment (Smith 1991). However, their distinction is crucial within (and for) the EU.
National identity is an empirical reality, embodying not only the fundamental politi-
cal and constitutional structures of a country, but also the political culture of the
latter (Von Bogdandy and Schill 2011). Nationalism, instead, is a strategy of mobi-
lisation, used by ruling elites, to generate, among citizens, a sentiment of political
support for their action, particularly when they are in contradictory relations with
other member states or EU supranational institutions. Through the institutionalisa-
tion of the intergovernmental framework, the distinction between national identity
and nationalism has waned.

Conclusion

After 60 years of integration, the EU oscillates between construction of a European

political identity and its de-construction through the re-affirmation of national politi-
cal identities. This is due to the logic supporting the EU institutional system. Dis-
tinguishing between supranational and intergovernmental constitutional settings,
the article has investigated the process of identity formation in the former and in
the latter. If the supranational institutions have incentivised the political actors to

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Constructing and de-constructing the European political …

promote a European political identity with state-like features, the intergovernmental

institutions have instead incentivised the national leaders to de-construct that iden-
tity on behalf of the preservation of the national identities of the member states.
Whereas the supranational logic has incentivised the Commission and EP actors to
pursue a state-oriented European political identity, the intergovernmental logic has
re-affirmed the national identities of its members with their own statist bases. The
Lisbon Treaty formalised a sort of truce between the two approaches. That truce
has ended with the multiple post-Lisbon Treaty crises. Those crises have shown the
unrealistic character of the state-like approach pursued by supranational actors, but
also the disintegration’s implications of the multiple “statenesses” approach pursued
by national leaders. In those crises, in fact, the defence of national identity has trig-
gered the resurgence of nationalism, as Brexit dramatically epitomised. If the inter-
governmental EU fosters contraposition between national identities and the suprana-
tional EU ends up claiming an unrealistic statist view of European political identity,
what kind of institutional framework might instead help to construct a compound
political identity, inclusive of European and national identities?

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Publisher’s Note Springer Nature remains neutral with regard to jurisdictional claims in published
maps and institutional affiliations.

Sergio Fabbrini is Professor of Political Science and International Relations and Dean of the Political
Science Department at the LUISS Guido Carli in Rome.

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Comparative European Politics (2019) 17:491–511
https://doi.org/10.1057/s41295-019-00180-7

ORIGINAL ARTICLE

Affirming Europe with trade: deal negotiations

and the making of a political identity

Francesco Duina1,2 · Ezekiel Smith3

Published online: 29 March 2019

© Springer Nature Limited 2019

Abstract
Drawing from economic sociology, this article argues that trade liberalization is
never devoid of cultural and symbolic content. As such, when pursued by interna-
tional entities, it can help affirm collective identities. The EU Commission’s recent
external trade negotiations with the USA (TTIP) and Canada (CETA) over food
quality offer excellent examples. Pitting itself against North American neoliberal-
ism and business-oriented commercialism, the Commission has championed a Euro-
pean understanding of food integrity and social responsibility. In so doing, it has
also emphasized its role as the institution protective of European values on the world
stage. Internally, the Commission’s pursuit of a digital single market has in parallel
revealed a different approach. Here, the Commission has stressed the values of effi-
ciency, the transcending of national borders, and consumer and business freedom. In
that context, the Commission has presented itself as the political entity capable of
advancing a dynamic and competitive vision of Europe. These differences point to
the complexity associated with crafting ‘European’ values. They also point to preex-
isting domestic regulatory traditions in certain sectors as key factors influencing the
Commission. We close by reflecting on the fact that the Commission’s rhetoric has
not gone unchallenged externally or internally.

Keywords CETA · Identity · Values · Trade · TTIP

* Francesco Duina
[email protected]
1
Department of Sociology, Bates College, Lewiston, USA
2
Department of Sociology, University of British Columbia, Vancouver, Canada
3
Bates College, Lewiston, USA

31 Reprinted from the journal

 F. Duina, E. Smith

The Commission and the EU’s political identity

The Commission has affirmed the EU’s political identity through trade. The claim
should not be all too surprising to those familiar with the foundational tenets of
economic sociology: All kinds of economic activity are ‘embedded’ in, reflec-
tive of, and generative of symbolic and cultural material. Trade is no exception
(Appelbaum et al. 2001; Goff 2007). The insights of economic sociology extend
to all aspects of any given economic activity. The formal and informal rules of
negotiations and exchange—agreed upon at some point—not only facilitate and
make possible trade but also reflect basic societal values (of fairness, for instance,
or trust) (see, for example, Barrientos and Dolan 2006). The very objects being
traded require informal and often formal definition, and this necessarily embodies
shared understandings of the essential qualities of those objects as well as norma-
tive perspectives around those objects (for example, safety features or the quali-
ties of ingredients or composite parts) (Brown 2013; Potter and Biukovic 2011).
Crucially for the discussion in this special issue, the insights also extend to the
actors involved in whatever economic exchange one looks at (Duina 2011).
For economic sociologists, actors can enter into economic exchanges already
pre-constituted by virtue of having undergone certain societal processes. At the
micro-level, we can see this, for example, with different types of profession-
als, such as accountants and doctors, who undergo training via the adoption of
agreed-upon skills and values that is then symbolically certified by way of diplo-
mas and degrees ahead of engagement in the marketplace. Something similar
applies at the more macro-level, with firms, trade unions, and states entering into
exchanges with pre-established characteristics.
But actors can also articulate and define themselves through the economic
interaction itself (Spillman 1999; Hass 2007, pp. 29–30). This process can be
rather tacit and even unconscious but can also be very intentional: Actors use eco-
nomic events as valuable occasions for the assertion of their very identity. This
inevitably involves the use of cultural and symbolic material and can be done in
a positive manner (through the articulation of what the actor stands for) or in a
negative fashion (by stating what the actor rejects or stands in opposition to). It
may also involve assimilation into a group or antagonism toward other actors. For
the purposes of self-definition, all these are functionally equivalent: They all help
define actors.
We can leverage these insights to propose that economic activity, which is
always about trade, affords actors excellent opportunities for the articulation and
affirmation—in other words, construction—of identities. This, this paper sug-
gests, is precisely what the EU, and the Commission in particular, have done. The
attention turns to some of the most recent and important of the Commission’s
trade efforts externally with third parties and internally with its member states.
On the external front, the Commission’s negotiations over two comprehensive
trade agreements with the USA (TTIP) and Canada (CETA) have stumbled over
divergent approaches to food quality, specifically in relation to genetically modi-
fied (GM) foods and beef from hormone-fed cows. Pitting itself against North

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Affirming Europe with trade: deal negotiations and the making …

American neoliberalism and business-oriented commercialism, the Commission

has championed a European understanding of food integrity and social respon-
sibility. In so doing, it has also emphasized the importance of political oversight
over market activity and, with that, its own role as an institution capable of pro-
tecting European values on the world stage.
On the internal front, the Commission’s pursuit of a digital single market (DSM)
has revealed a different discourse. Here, again, the Commission has presented itself
as the EU institution capable of advancing a European vision while underscoring
the idea that market creation cannot happen without political support. In this case,
however, its language has emphasized the values of efficiency, seamless national
borders, and consumer and business freedom. This is a second perspective on the
European project: One that aims at the creation—through the Commission’s leader-
ship—of an economic space that supersedes national differences.
This article examines the Commission’s external and internal trade initiatives
to highlight its articulation of European values and the related emergence of a EU
political identity—in line with the primary argument put forth in this special issue.
In the process, attention goes to the challenges associated with crafting coherent cul-
tural and symbolic material across different issue areas—a second theme the edi-
tors of this special issue stress in their introduction. The process is messy and sel-
dom coordinated. In the two cases considered here, we note that with food the EU
entered the negotiations with already developed, for its own market, quality regula-
tions on health and food integrity. These reflected the concerns and national regula-
tory regimes of certain member states especially. The Commission has thus in effect
‘uploaded’ the principles inherent in those regulations onto its transatlantic efforts.
In the case of the DSM, the Commission has by contrast operated in a much looser
historical context. As such, it has adopted a more market- and future-oriented com-
petitive discursive approach.
Table 1 summarizes the findings.

Table 1 Trade, political identity, and values

TTIP and CETA: GMOs and hormone European digital single market
beef

Preexisting Extensive EU-level regulations, reflective Limited and fragmented member state
regulatory of domestic regimes in some member regulatory regimes
conditions states
Commission’s Protector of European culture on world Promoter of a modern and integrated
role in craft- stage with political oversight over market space
ing an EU market
identity
Invoked values Environmental protection Efficiency
Animal welfare Seamless national borders
Food quality Consumer and business freedom
Consumer health and safety
Protectionism
Precautionary principle
Plant health

33 Reprinted from the journal

 F. Duina, E. Smith

Methodologically, the spotlight goes to the statements—made in public forums,

meetings, press releases, and official documents—by prominent actors in the Com-
mission as they work on trade promotion that assert shared ‘European’ values:
claims, by those officials, about what Europeans care for, believe in, see as unique
about themselves, and stand for in the contemporary world. In parallel, attention
also goes to statements by the same officials about the role of the Commission in
advancing those values. To be clear, the goal is to identify what Commission actors
have said about their initiatives. It is not to arrive at an objective description of those
initiatives.
We begin by situating this analysis in the broader literature on the ‘actorness’ of
the EU as a trade entity. We then proceed to examine the Commission’s assertions
during the TTIP and CETA negotiations, and during its pursuit of the DSM. We
close by summarizing the findings and noting that the Commission’s rhetoric has not
gone unchallenged externally or internally.

The EU as a trade ‘Actor’: the broader literature

This article builds on the literature on the ‘actorness’ of the EU: Can the EU be
thought of as a cohesive actor on the world stage? Some of the most sophisticated
analyses so far have concerned the EU’s activities in the area of democracy pro-
motion (Börzel and van Hüllen 2015), foreign aid (Carbone 2013), human rights
(Balfour 2012), and the diffusion of its regional integration model (Lenz 2012). But
perhaps the most conclusive data concern trade. The EU has engaged in trade nego-
tiations and disputes with third countries, whether bilaterally, regionally, or in the
WTO context. By and large, in this area, most analyses conclude that the EU does
indeed operate as a genuine and unitary actor (Elsig 2013).
The main preoccupation of scholars has been with identifying the institutional—
legal and administrative above all—mechanisms that have helped the EU function as
an actor. First, by virtue of being part of a common market, the EU member states
participate in a shared external tariff regime. It logically follows that the EU has
historically represented those member states, as a bloc, in any international nego-
tiation. This is a constitutional matter that endows the EU with a good degree of
agency (Gehring et al. 2013; Strange 2015, p. 866)—an agency made even more
consequential by the fact that negotiations increasingly involve standards in multiple
issue areas (Nicolaïdis and Egan 2001; Young 2016).
Second, and related to the first point, the EU has in place processes for the artic-
ulation of national interests and the resolution of conflicting standpoints. In par-
ticular, the Council of Ministers decides via qualified majority voting on a broad
mandate for the Commission regarding any given external deal. At the ratification
stage, in turn, through either qualified majority voting or unanimity depending on
the issues involved, member states have further input (da Conceição-Heldt 2014, p.
982). These processes enable the EU to assume a cohesive position in negotiations
with third parties and in the approval stages. They allow the EU to act as a unitary
entity on the world stage and ‘look’ like a sort of federal state.

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Affirming Europe with trade: deal negotiations and the making …

Third, the Commission, and its DG Trade in particular, has operated as the pri-
mary representative of the entire bloc: While the Council sets the negotiating guide-
lines for any given deal, and the Commission consults and at times coordinates its
position with the European Parliament, the Commission, per treaty law, drives the
process (da Conceição-Heldt 2014, p. 982). This has enabled it to act with purpose
and latitude—precisely what we would expect from a legitimate international actor.
Not all of these institutional mechanisms function smoothly. Some scholars
point out, for instance, that bureaucratic complexities and procedural nuances can
preclude the formulation of a cohesive position. Divergent member states’ prefer-
ences can also mean failure to arrive at a shared position in the first instance—not
unlike what has happened in areas such as foreign aid (see Carbone 2013 but also
Macaj and Nicolaïdis 2014 for arguments for why such differences may not be too
problematic). Others note that member states can in certain areas retain consider-
able control over trade policies and regimes—because of security considerations, for
instance, opt-out clauses, or other reasons (Meunier and Nicolaïdis 2006). These are
fair observations but do not detract from the overall picture of the EU and the Com-
mission functioning as real, and often powerful, actors on the world stage.
To the list of internal institutional mechanisms, scholars add external institutional
ones. International forums, such as the GATT and later WTO, by allowing for EU
representation, effectively grant it legitimacy as an actor (Elsig 2013; Senti 2002;
Gehring et al. 2013). Of course, caveats are in order here too. The makeup and rules
of international organizations make a difference (Marsh and Mackenstein 2005, p.
56). At the WTO, the EU but also its 28 member states participate. Though the lat-
ter should not play a role in formal negotiations, they do so anyway, and sometimes
reach formal agreements on their own (Senti 2002, p. 114). In bilateral negotiations,
the Commission alone is present. Consultations with interest groups can vary too
across settings. But, even with these caveats in mind, the consensus is that, by and
large, the EU Commission functions as an actor (Meunier and Nicolaïdis 2006).
These contributions have helped us understand better the ‘actorness’ on the world
stage of the EU, and the Commission especially, in the realm of trade. Yet, their
focus on the enabling institutional mechanisms have shed light on why the EU is able
to function as an actor but have told us less about how it operates and the qualities
or characteristics it displays. This is especially so when it comes to its political iden-
tity. Political identities emerge from, and reflect, cultural and symbolic material that
articulates and projects particular perspectives on the world. Political actors with
identities, when taking policy positions, express and refer to distinct values, norms,
and beliefs that help them define and differentiate themselves from other political
entities. Have the EU, and its Commission in particular, as actors been involved in
the process of articulation of such cultural and symbolic material (Cerutti 2003, pp.
27–29)?
This paper contributes to the discussion around the EU’s ‘actorness’ by arguing
that, in pursuit of trade objectives, the EU Commission has indeed affirmed quite
strongly distinct sets of European values. The typically very technical nature of those
negotiations has by no means precluded this from happening. This has occurred not
only in the EU’s pursuit of external trade negotiations with other countries—bilat-
erally, as regional blocs, or multilaterally—but also, importantly, during the push

35 Reprinted from the journal

 F. Duina, E. Smith

for the completion of a truly integrated internal market and the negotiations with
the member states and relevant actors such as interest groups and citizens associa-
tions. The outcome of this process has been the articulation of a European political
identity.1

Food, earth, and tradition: protecting Europe at the CETA and TTIP
negotiations

The EU is currently in the midst of a protracted negotiation over TTIP. It was first
pursued in the 1990s, then 2007, and a new round started again in 2013. Brexit and
Donald Trump’s elections to the US Presidency have, however, for now stalled pro-
gress. The EU began negotiations over CETA in 2009. An agreement was signed in
2014 and ratified by the EU Parliament in early 2017, and is at the time of writing
awaiting ratification by all the national parliaments of the EU countries. In Canada,
both the House of Commons and Senate adopted it in 2017. Much of the negoti-
ations on both deals have been kept secret: This, however, has not prevented the
Commission from invoking, from the earliest phases and in various forums, an array
of ‘European’ values that distinguish Europe from North America and from present-
ing itself as the institutional entity uniquely positioned to protect those values on the
world stage.
Those efforts were especially prevalent in the area of food and technology. To
investigate these, we should first note that, by the time the negotiations on TTIP (the
latest round) and CETA were launched, divergent approaches between the EU and
North America had been developing for some time. Table 2 highlights those differ-
ent trajectories.
As Table 2 indicates, the regulatory regimes in the EU in the years leading up
to TTIP and CETA can be described as restrictive and ‘precautionary’: If harm is
a possibility, and if there is no scientific consensus on the issue, the product should
not be made available. Priority has therefore been given to consumer health, animal
rights, and product quality over business and industry wants. GM products became
effectively banned unless positive scientific proof of their harmlessness could be
rendered. A moratorium was put into place for all new genetically modified organ-
isms (GMOs) in 1999 (which was eventually replaced with a very restrictive regime
four years later), and member states retain extensive rights to introduce their own
additional restrictions.
Such a remarkably tight regulatory regime did not come easily: The member
states had different domestic traditions and perspectives. Early on, in countries with
strong eco-farming practices or regional food specialties (such as France, Italy, and
Austria), environmental and consumer associations shaped political opinion and vot-
ing at the EU level against GM foods (Kurzer and Cooper 2007). But in countries

1
Our argument thus intersects with recent work on the Commission’s use of cognitive ‘frames’ to legiti-
mate its own authority (Thomas and Turnbull 2017) and scholarship on the emergence of a EU identity
through political symbolism, narratives, and debate (Lucarelli et al. 2011).

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Affirming Europe with trade: deal negotiations and the making …

Table 2 Food and technology in the EU and North America

Regulatory Principles Outcomes

EU ‘Precautionary’ principle for Only 58 GMOs approved for use; only 1 approved
GMOs prioritizing consumer for cultivation
and environmental health: use Between 1999 and 2003, a moratorium on GMO
allowed if proved harmless approvals. Afterwards, a very strict approval
(Bernauer 2003: Vogel 2003; process (European Parliament, 2015)
Scholderer 2005) As of 2015, member states (a) can ban cultivation of
Complex GMO approval process any GMO, (b) have final say on which GMOs are
involving the European Food sold in own territory (Geelohed 2016)
Safety Agency, member states, As of 1989, ban on all importation and production of
and Commission’s Appeal hormone (natural or synthetic) treated meat (Kerr
Committee and Hobbs, 2002; Vogel 2003)
For hormone beef, protection of
animal welfare, food quality,
consumer health and safety
(Johnson 2015)
North America Market prioritization, with Liberal use of GMOs and hormones in food supply
GMOs and hormone-fed beef chain
regulated as any other food
product

where neither eco-farming nor food specialty was in place and the biotech industry
had a bigger stake in GMOs (like the UK and the Netherlands), political opinion
favored GM foods. The EU responded by ultimately favoring the first set of coun-
tries and issuing regulations (such as Directive 90/220/EEC) centered on the pre-
cautionary principle (Scholderer 2005; Bernauer 2003, p. 45), which was in turn
accompanied by strict labeling requirements for approved GMOs (European Com-
mission 2016a). An even stricter approach developed with regard to hormone beef:
Following the 1989 mad cow crisis, the EU moved to ban altogether hormone beef
from its food supply chain.2
In contrast, during the same time period, the USA and Canada developed liberal
regimes toward both GMOs and hormone beef. The approval process is relaxed. In
the USA, GMOs fall under the FDA classification of ‘generally recognized as safe’
and do not require pre-market approval or special labeling unless their level of toxic-
ity is unusually high or they contain reduced levels of important nutrients.3 Thus,
GM foods are treated like any other food product—something that also applies to

2
The Commission’s 2002 European General Food Law laid the foundations on food and feed by stating
that European citizens should ‘have access to safe and wholesome food of the highest standard’ (Euro-
pean Commission 2016b). This was preceded by a regulation proposal on feed, adopted by the Com-
mission in December 2001, establishing ‘animal and public health as the primary objective of EU feed
legislation’ (Commission of the European Communities 2000). Article 100a EEC of the Single European
Act also mandated a ‘high level of protection’ in light of ‘any new development based on scientific facts’
(Coggi and Deboyser 2016) when it comes to environmental or consumer protection, health, and safety.
3
For a summary of the US approach, see http://sitn.hms.harvard.edu/flash/2015/same-science-different-
policies/.

37 Reprinted from the journal

 F. Duina, E. Smith

Canada. The direction is opposite the EU’s: Unless something can be proved harm-
ful, it is allowed. As to hormones, they must be approved by the relevant agencies in
the USA (USDA) and Canada (the Veterinary Drugs Directorate). The threshold is
comparatively low, and both countries have approved the same six hormones.4
These differences have led to clashes between the EU and the USA and Canada
well before the recent TTIP and CETA negotiations. In the 2000s, the USA and Can-
ada turned to the WTO to complain about the EU’s GMO moratorium, with very
limited success (Library of Congress 2015). Regarding beef hormones, in 1989, in
response to the EU’s ban of hormone beef, the USA imposed a $93 million tariff on
selected EU imports. In 1996, the USA and Canada took the EU before the WTO
and won the right to impose sanctions on EU products (Charlier and Rainelli 2002;
Johnson 2015). In 2004, the EU opened its own dispute at the WTO against North
American sanctions. The WTO found all three parties at fault (Johnson 2015). After
the USA escalated tariffs in 2009, Canada, the USA, and the EU signed an MOU to
stop using sanctions over other foods to address the issue.5 But the conflict over hor-
mone beef remains fully in place: The EU does not import it.
These events set the stage for the TTIP and CETA negotiations and, more spe-
cifically, for the Commission’s assertion—or in fact ‘uploading’—of European val-
ues and its own role in protecting those values. In both cases, the Commission has
spoken unambiguously about Europe’s needs, beliefs, and traditions: Food quality,
environmental protection, plant health, consumer health and safety, animal welfare,
protectionism, and precaution define Europe’s standpoint. There will be little com-
promise. Indeed, as EU Trade Commissioner Cecilia Malmström put it immediately
after the Brexit referendum, the debates on TTIP have ‘focused very much on how
to reconcile preserving identity and our individuality.’ ‘Identity,’ she added, ‘hasn’t
always been part of trade negotiations, but [is] very much today’ (emphasis added).6
The Commission has accordingly invoked European values that it will protect: If the
North Americans have caved to big business, likely because of a lesser appreciation
for food quality, the Commission will fight to ensure Europe will stick to its core
standards and norms. This stance had already been taken as early as 2000, after the
first attempt at TTIP.7
Press releases by Karel De Gucht, when he was EU Commissioner for Trade,
offer key evidence in this regard. Two from 2014 concerned TTIP. In the first, in
January, De Gucht stated that the gains Europe will experience from the TTIP will
only exist if Europe ratifies ‘the right deal,’ specifically a deal that Europeans ‘con-
sider worth supporting. A deal which pursues our interests and preserves our values’
(European Commission 2014a). Then De Gucht addressed GMOs and hormone beef

4
Estrogen, progesterone, testosterone, zeranol, melengestrol acetate, and trenbolone acetate.
5
See http://trade.ec.europa.eu/doclib/press/index.cfm?id=685 and http://trade.ec.europa.eu/doclib/press
/index.cfm?id=126.
6
See the transcript section of https://www.c-span.org/video/?c4608594/cecilia-malmstrom-says-tpp-
negotiations-will-move-forward-brexit-vote&start=561.
7
In a white paper, the Commission stated that ‘the key principle for imported foodstuffs and animal feed
is that they must meet health requirements at least equivalent to those set by the Community’ (Commis-
sion of the European Communities 2000).

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Affirming Europe with trade: deal negotiations and the making …

directly by stating that ‘If—as a result of the negotiations—the EU was going to

lower standards of protection for citizens regarding food or the environment … if we
were going to abandon our policy on genetically modified food or on beef hormones
… That would indeed be unacceptable’ (European Commission 2014a).
In the second press release, in February following a meeting with US Trade Rep-
resentative Michael Froman, De Gucht further affirmed the Commission’s stance:
‘No standard in Europe will be lowered because of this trade deal; not on food, not
on the environment.’ He gave a personal assurance that the TTIP would not become
a ‘dumping agreement’ (European Commission 2014b) and then proceeded with
these remarkable words: ‘Yes, there will be areas where we will not be able to agree.
That’s ok. Hormone beef is such an example. Let me be very clear again: we do not
even discuss hormone beef in TTIP and we will NOT at any point in our discus-
sions. Why? Because hormone beef is prohibited in Europe, and we do not intend
to change this. And our American partners know this very well.’ In the same press
release, De Gucht added that ‘our standards on consumer protection, on the environ-
ment … and on food are not up for negotiation’ and proceeded to assert that ‘there is
no “give and take” on standards in TTIP.’
A flurry of other public statements and initiatives preceded and followed these
statements. One, by Trade Commissioner Malmström, stressed that the TTIP will
not change European laws on hormone beef or GMOs: ‘negotiating TTIP respon-
sibly,’ she noted, ‘means recognising that a closer alliance with the United States
will help protect European values in a changing world.’ It also means ensuring that
‘European values [are] more protected not less so’ (Malstrom 2016). In the same
year, the Commission released on its Web site a fact sheet titled Food Safety and
Animal and Plant Health in TTIP. It reminds readers that the EU has a strict regula-
tory regime with respect to GMOs, and that ‘this will not change through TTIP.’
Regarding animal welfare, the sheet declares that ‘TTIP will not affect EU animal
welfare laws.’ The EU, it adds, will discuss animal welfare with the USA ‘so as to
promote the highest standards of animal welfare possible.’8 And, of course, the ban
on hormone beef will remain.
To be sure, these assertions by the Commission have not gone uncontested.
Groups such as Global Justice Now have questioned their sincerity and the Commis-
sion’s ability to deliver on its promises (Inman 2015). Internally, member states took
different stances in EU decision-making bodies such as the Council of Ministers,
where there is a split regarding the cultivation of GMOs (Dudek 2015, p. 227). This
should be expected: Any attempt to articulate ‘European’ values, by any entity, will
inevitably be questioned. The Commission’s rhetoric should therefore be seen as an
effort to defining matters, rather than an articulation of pre-accepted ideas.
In this context, when it comes to identity, the Commission has presented itself
as the institutional entity defending and advancing those values. Statements have
reminded the public that the EU sees as ‘part of its actual mission’ a commitment
to high food standards (Coggi and Deboyser 2016). As De Gucht put it in 2014, the

8
See: http://trade.ec.europa.eu/doclib/docs/2015/january/tradoc_153004.3%20Food%20safety,%20a+p%20
health%20(SPS).pdf.

39 Reprinted from the journal

 F. Duina, E. Smith

‘standards’ at play in the TTIP negotiations ‘are already being set by our different
regulatory agencies on both sides of the Atlantic, not by TTIP negotiators. What
we aim to achieve in TTIP is that these regulatory agencies coordinate more closely
with each other’ (European Commission 2014b).
Hence, the Commission has directed people to a TTIP-dedicated Web site with
a Q&A space.9 The central message focuses on values and its mission: ‘basic laws,
like those relating to GMOs … are there to protect human life and health, animal
health and welfare, or environment and consumer interests [and] will not be part of
the negotiations’ (Harvey 2014). With regard to American hormone-fed beef, it adds
that the ‘tough EU laws designed to protect human life and health, animal health and
welfare, or the environment and consumers will not be changed because of TTIP.’
Thus, as one official remarked to The Guardian in 2014, ‘the EU has its red lines in
the negotiations and GMOs is one of them’ (Harvey 2014).
In related statements in media and Internet outlets, officials have stressed the rep-
resentative role of the Commission and its connection to the people. In 2015, for
instance, in response to lobbying from American organizations such as the National
Grain and Feed Association and the American Soybean Association (Harvey 2014),
and to the statement by US Trade Representative Michael Froman claiming his
country was ‘very disappointed’ at the Commission’s move to allow national bans
of the cultivation of GMOs, Vytenis Andriukaitis, the Commissioner for Health
and Food Safety, said he was ‘pleased to deliver on one of the important commit-
ments taken by this Commission.’ Indeed he added, the EU executive ‘has listened
to the concerns of many European citizens’ who, he said, were in line with the posi-
tions of their own governments (Jacobsen 2015). Similarly, Commissioner for Trade
Malmström wrote on a May 2016 blog post that the EU’s negotiating team consults
regularly with an advisory group consisting of representatives from every type of
TTIP stakeholder, including public advocacy groups, and health and environmental
organizations (Malstrom 2016).
In the same spirit, Commissioners have reminded the public of their 2013 Public
Consultation study involving roughly 43,000 EU citizens on the topic of food pref-
erence: The Commission should be seen as connected to the people. The Commis-
sion knows what Europeans care about: 83% of participants reported eating organic
food regularly, with half saying that they try to buy organic as much as possible.
The reasons for their appreciation of organic foods are that 83% worry about the
environment, 80% want to avoid pesticide residues, 63% believe organic products
are healthier, 55% think organic production respects animal welfare, and 90% pre-
fer GMO-free products. Furthermore, 67% reported that animal welfare standards
should be strengthened for both organic and non-organic farming (Directorate-Gen-
eral for Agriculture and Rural Development 2013).
The negotiations over CETA have followed a similar pattern. The Commission
has refused to open Europe to ‘chemically washed’ meat products or non-authorized
GMOs. Leading up to the negotiations, it made public the EU–Canada Trade Nego-
tiating Mandate in 2009. It stated that while the objective is to expand market access

9
See: http://ec.europa.eu/trade/policy/in-focus/ttip/about-ttip/questions-and-answers/index_en.htm.

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Affirming Europe with trade: deal negotiations and the making …

it must be done without undermining public, animal, and plant health (Council of
the European Union 2009). This was especially true in the realm of GMOs and hor-
mone beef. This must be so, De Gucht stated, because European legislators ‘will not
in the end approve a trade deal that undermines our European values or the social
standards we have built over so many years’ (European Commission 2014a).
Though its rhetoric was again contested, as with the TTIP, by various stakehold-
ers,10 the Commission praised its own accomplishments at the conclusion of the
deal. ‘CETA ensures,’ it stated, that ‘economic gains do not come at the expense of
consumer health and safety.’ It continued by describing its future aims:
CETA will not affect food-related or environmental regulations in the EU.
Canadian products can only be imported and sold in the EU if they fully
respect the relevant European regulations - without any exemption11 … Both
the EU and Canada will keep the right to regulate freely in areas of public
interest such as environment, health and safety (European Commission 2016c).
The conclusion from the above is straightforward. Over the years, the Commission’s
transatlantic negotiations on food have been consistent with preexisting EU regula-
tory principles and have helped it assert for itself an institutional role that is clearly
grounded in European values (Acuti 2009).

Cutting edge and efficient: the EU Commission and the pursuit

of the internal digital single market

As with GMOs and hormone beef, the Commission’s activities in the DSM space,
despite their technical nature, have also been laden with cultural and symbolic mate-
rial. This time, however, the language emphasizes rather different values: more
forward-looking, globally oriented, and competition-driven. The Commission has
touted the ideals of seamless national borders, efficiency, and consumer and business
freedom—values opposite those invoked during the TTIP and CETA food negotia-
tions. This is explained, at least partly, by the absence of any long-held domestic
regulatory traditions in the area of digital services: The Commission has worked
with a relative tabula rasa other than some national, but not deeply rooted, protec-
tionist tendencies. In the process, it has positioned itself as the promoter of progress
in Europe, eager to build a world-class digital marketplace.
The DSM effort was launched in 2015. The Commission envisions an online
space where people and businesses can trade and innovate, and where exchanges are
secure and inexpensive. From the start, its language has evoked ideas of ‘openness,’

10
See, for instance, the protests during the deal’s October 2016 signing (https://www.rt.com/news/36474
3-ceta-canada-eu-signed-protest/) and the months leading up to it (http://www.bbc.com/news/world
-europe-37450742).
11
Thus, CETA granted Canada preferential access to the EU for its own hormone-free beef, with
expanded export quotas and the elimination of a 20% tariff (Canadian Cattlemen’s Association 2013).

41 Reprinted from the journal

 F. Duina, E. Smith

‘competitiveness,’ and the need to ‘transcend national borders.’ The primary online
gateway to the DSM and the Commission’s efforts thus states that:
the internet and digital technologies are transforming our world. But existing
barriers online mean citizens miss out on goods and services, Internet compa-
nies and start-ups have their horizons limited, and businesses and governments
cannot fully benefit from digital tools. It’s time to make the EU’s single mar-
ket fit for the digital age—tearing down regulatory walls and moving from 28
national markets to a single one.12
‘In a Digital Single Market,’ reads an accompanying Commission press release,
‘there are fewer barriers, and more opportunities: it is a seamless area where people
and businesses can trade, innovate and interact legally, safely, securely, and at an
affordable cost, making their lives easier’ (European Commission 2016d).
Several Commission officials have voiced similar ambitions. In early May 2015,
for example, Commission President Jean-Claude Juncker expressed his hopes for
‘pan-continental telecoms networks, digital services that cross borders and a wave
of innovative European start-ups. I want to see every consumer getting the best deals
and every business accessing the widest market—wherever they are in Europe’
(European Commission 2015a). Andrus Ansip, Vice President for the DSM,
explained in 2015 that ‘Europe’s online market is really fragmented. We have 28
countries with 28 different sets of rules. We need to tear down those barriers’ (Scott
2015). In addition, Ansip noted that ‘as companies aim to scale up across the Single
Market, public e-services should also meet today’s needs: be digital, open and cross-
border by design’ (European Commission 2016e). From the outset, Commissioners
have also spoken about Europe meeting its ‘full potential,’ and thereby being ‘glob-
ally competitive.’ Günther H. Oettinger, Commissioner for the Digital Economy and
Society, reasoned that:
Europe has a very competitive industrial base and is a global leader in impor-
tant sectors. But Europe will only be able to maintain its leading role if the
digitization of its industry is successful and reached fast. Our proposals aim to
ensure that this happens. It requires a joint effort across Europe to attract the
investments we need for growth in the digital economy (European Commis-
sion 2016e).
Consistent with this, the Commission has monetarized the DSM’s benefits: Inte-
gration will contribute 415 billion euros and hundreds of thousands of jobs to the
economy (European Commission 2016d). In practical terms, it has clustered initia-
tives around three ‘pillars’: (1) better access for consumers and businesses to digital
goods and services, (2) shaping the right environment for digital networks and ser-
vices to flourish, and (3) creating a dynamic European digital economy and society.
Let us consider the language and positioning around each pillar.

12
See http://ec.europa.eu/priorities/digital-single-market_en.

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Affirming Europe with trade: deal negotiations and the making …

First pillar: access to digital market

Under the first pillar, specific initiatives have focused on creating a single European
telecommunications market, establishing EU-wide Internet neutrality rules, increas-
ing cross-border e-commerce sales, tackling geo-blocking, consolidating fragmented
consumer contract laws, and making cross-border parcel delivery more affordable.
Invariably, officials have welcomed the approval of laws or early drafts by noting the
benefits they will generate for consumer and business freedom, efficiency, and the
dismantling of harmful national borders. We examine some of that language here
and the related positioning of the Commission as the entity capable of advancing
those goals.
A Commission press release announcing several new initiatives in 2015 on tel-
ecom and net neutrality asserted, for instance, that ‘these common EU-wide internet
rules will avoid fragmentation in the single market, creating legal certainty for busi-
nesses and making it easier for them to work across borders’ (European Commission
2015b). Roaming charges were set to end starting in June 2017. Commissioner Oet-
tinger introduced the new rules by stating that ‘I welcome today’s crucial agreement
to finally end roaming charges and establish pragmatic net neutrality rules through-
out the EU. Both are essential for consumers and businesses in today’s European
digital economy and society’ (European Commission 2015b). Avoiding ‘fragmen-
tation,’ being ‘pragmatic,’ recognizing a ‘European dimension:’ These are praised
values in the DSM space. In the process, the Commission has emphasized that it has
acted as the engine behind these initiatives: as the modernizing entity willing to take
the initiative. As Ansip proclaimed, ‘Europeans have been calling and waiting for
the end of roaming charges as well as for net neutrality rules. They have been heard’
(European Commission 2015b).
Regarding e-commerce, in December 2015 the Commission presented two pro-
posals designed, it said, to tackle legal fragmentation and boost consumer freedom
and trust. Věra Jourová, the Commissioner for Justice, Consumers and Gender
Equality, for instance, announced that ‘harmonizing contractual rights throughout
the EU will facilitate the supply of both digital content and goods across Europe.
Consumers will benefit from simple and modernized rules; businesses from more
legal certainty, and cheaper and easier ways to expand their activities. This in turn
will bring more choice at competitive prices to consumers’ (European Commission
2015c). Ansip in turn added that these proposals ‘will give more rights to consumers
on-line—allow them to enjoy products and services from other EU countries in full
confidence. Businesses, especially the smallest ones, can grow across borders at less
cost, with a common set of EU rules instead of a patchwork of national laws’ (Euro-
pean Commission 2015c). The Commission monetarized the benefits with impres-
sive figures (European Commission 2015c).
Additional measures to boost e-commerce followed: Unjustified geo-blocking
would end, while cross-border parcel delivery would become more affordable (Euro-
pean Commission 2016f). Again, the Commission made use of value-laden lan-
guage. Ansip remarked that ‘all too often people are blocked from accessing the best
offers when shopping online or decide not to buy cross-border because the delivery
prices are too high … We want to solve the problems that are preventing consumers

43 Reprinted from the journal

 F. Duina, E. Smith

and businesses from fully enjoying the opportunities of buying and selling online
products and services’ (European Commission 2016f). Elżbieta Bieńkowska, Com-
missioner for the Internal Market, Industry, Entrepreneurship and SMEs, stated in
parallel that ‘discrimination between EU consumers based on the objective to seg-
ment markets along national borders has no place in the Single Market. With clearer
rules, better enforcement and more affordable cross-border parcel delivery, it will be
easier for consumers and companies, especially SMEs, to make the most of the EU
Single Market and the cross border e-commerce’ (European Commission 2016f).
Geo-blocking will be made illegal and price transparency will become a priority
(European Commission 2016g).
What have all these initiatives under the first pillar suggested about the Commis-
sion, and the EU institutions more broadly, as entities representing Europe and its
people? The overall package, Oettinger reasons,
shows that the European Union can deliver tangible results to improve the
daily life of Europeans. Roaming charges will soon be old memories and we
will get for the first time ever net neutrality rules in EU law. These rules pro-
tect the right of every European to access the content of their choice, with-
out interference or discrimination. They will avoid fragmentation in the single
market, creating legal certainty for businesses and making it easier for them to
work across border… Digital challenges need strong action at the European
level, and we should continue in this direction to create a Digital Single Mar-
ket.
The EU, in other words, operates at the correct scale to address the challenges of
the moment. Thus, as Ansip put it, the EU activities demonstrate that ‘the voices of
Europeans have been heard’ (European Commission 2015d) and that the EU, above
all, should be entrusted with their advancement.

Second pillar: the right business environment

The second pillar centers on supporting digital networks and services. In terms of
institutional roles, action by the Commission here is depicted as a must. As a 2016
Commission press release put it, ‘several EU Member States have already launched
strategies for the digitization of industry. But a comprehensive approach at [the]
European level is needed to avoid fragmented markets and to reap the benefits of
digital evolutions’ (European Commission 2016e). The thrust to modernize Europe
must be at the EU, not national, level. Ansip affirmed as much when stating that ‘I
want online platforms and the audiovisual and creative sectors to be powerhouses
in the digital economy, not weigh them down with unnecessary rules. They need
the certainty of a modern and fair legal environment: that is what we are providing’
(European Commission 2016h). The EU, not its member states, operates at the right
level to offer this. Thus, as Bieńkowska stated, ‘the digital economy merges with the
real economy. We need leadership and investment in digital technologies in areas
like advanced manufacturing, smart energy, automated driving or e-health’ (Euro-
pean Commission 2016e). That leadership will come from the EU.

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Affirming Europe with trade: deal negotiations and the making …

In terms of values, the Commission has employed symbolically laden language

around a number of initiatives: reforming European data protection legislation,
digitizing public services, and updating the Audiovisual Media Services Direc-
tive. With respect to the first initiative, it negotiated in April 2016 two reforms to
ensure cross-national uniformity of data protection and thus advance consumer
and business freedom. As Jourová remarked,
today we deliver on the promise of the Juncker Commission to finalize data
protection reform in 2015. These new pan-European rules are good for citi-
zens and good for businesses. Citizens and businesses will profit from clear
rules that are fit for the digital age, that give strong protection and at the
same time create opportunities and encourage innovation in a European
Digital Single Market (European Commission 2015e).
Ansip described in parallel the legislation as follows:
today’s agreement … will remove barriers and unlock opportunities … With
solid common standards for data protection, people can be sure they are in
control of their personal information. And they can enjoy all the services and
opportunities of a Digital Single Market. We should not see privacy and data
protection as holding back economic activities. They are, in fact, an essential
competitive advantage. Today’s agreement builds a strong basis to help Europe
develop innovative digital services (European Commission 2015e).
Monetary and efficiency benefits for these initiatives, set to take place in 2018,
were again touted. Businesses that handle personal data, for instance, will only
have to interact with one supervisory authority (European Commission 2016i).
Notifications, a formality costing businesses 130 million Euros annually, will be
eliminated. And even police forces will save time and money, since information
will be exchanged more easily (European Commission 2015e).
Similar language has surrounded the Commission’s move to digitize industry
and public services. In April 2016, Ansip pronounced that ‘the industrial revolu-
tion of our time is digital’ (European Commission 2016e). A string of measures
put forth in April 2016 were presented as capable of mobilizing 50 billion Euros
in investment—both public and private—expected to generate major savings of
time and money (European Commission 2016e).
Interestingly, the Commission has faced more of a thematic challenge around the
third initiative: the Audiovisual Media Services Directive. The directive protects
European culture by requiring on-demand providers to promote European works.
European TV broadcasters currently invest roughly 20% of their revenue in Euro-
pean original works; on-demand providers only invest 1%. The new rules would
require these on-demand providers, such as Netflix and iTunes, to ensure 20% of
their catalogues have European content, and to promote European works in their
special offers. TV broadcasters must continue to air European content in 50% of
their viewing time (European Commission 2016j). The proposed laws could be seen
as protectionist (not unlike with food) and as departing from the market-minded per-
spective present in all the other initiatives (and the three pillars more generally).

45 Reprinted from the journal

 F. Duina, E. Smith

Yet here, too, the Commission has voiced a more progressive and market-friendly
stance. The tactic involves presenting the requirement for European works as one
promoting diversity and ultimately consumer freedom. As remarked in a May 2016
factsheet, ‘strengthening the promotion of European works for on-demand services
will lead to a broader and more diverse offer for Europeans. This will have a posi-
tive impact on cultural diversity and bring more opportunities for European creators’
(European Commission 2016j). Consumers increasingly want on-demand services.
Oettinger, understanding the shift, explained,
the way we watch TV or videos may have changed, but our values don’t.
With these new rules, we will uphold media pluralism, the independence of
audiovisual regulators and will make sure incitement and hatred will have no
room on video-sharing platforms. We also want to ensure a level-playing field,
responsible behavior, trust and fairness in the online platforms environment,
our today’s [sic] Communication sets out our vision for that (European Com-
mission 2016h).

Third pillar: growth potential

The Commission has needed fewer twists of language in the case of the third pillar.
The objective, it claims, is to maximize the growth potential of the digital economy
and society, primarily by exploiting European-wide big data and cloud services, and
ensuring the general population is educated enough to utilize a digital economy. The
Commission has already presented a blueprint for the creation of a new big data
infrastructure—one that can leverage the research output of scientists across the EU.
The infrastructure will consist of two components. The first is the European Open
Science Cloud. All of Europe’s 1.7 million researchers and 70 million science and
technology professionals will be able to store and share their data in the same virtual
environment together (European Commission 2016k). The second is the European
Data Infrastructure, which essentially acts as the backbone to the European Open
Science Cloud.
Terms like ‘efficiency,’ ‘productivity,’ and the transcending of ‘borders’ have
been evoked on this front. As Carlos Moedas, Commissioner for Research, Sci-
ence and Innovation, put it, ‘our goal is to create a European Open Science Cloud to
make science more efficient and productive and let millions of researchers share and
analyse research data in a trusted environment across technologies, disciplines and
borders’ (European Commission 2016k). Oettinger echoed these sentiments: ‘The
European Cloud Initiative will unlock the value of big data by providing world-class
supercomputing capability, high-speed connectivity and leading edge data and soft-
ware services for science, industry, and the public sector.’ The new infrastructure,
in turn, will benefit more than just the European research community. According
to the Commission, ‘Public services will benefit from reliable access to powerful
computing resources and the creation of a platform to open their data and services,
which can lead to cheaper, better and faster interconnected public services.’ Relat-
edly, businesses, and particularly SMEs, ‘will have cost effective and easy access

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Affirming Europe with trade: deal negotiations and the making …

to top level data and computing infrastructure, as well as a wealth of scientific data
enabling data-driven innovation’ (European Commission 2016k).
And, with this pillar too, the Commission has presented itself and the EU more
broadly as the only actors that can help Europeans capitalize on technological
advances. Europeans have needs, and the EU responds. As Moedas noted, ‘we lis-
tened to the scientific community’s plea for an infrastructure for Open Science and
with this comprehensive plan we can get down to work. The benefits of open data
for Europe’s science, economy and society will be enormous.’ With the EU’s help,
because of ‘this initiative, our ambition is to be in the global top-three in high per-
formance computing by 2020’ (European Commission 2016k).13

Conclusion

As with traditional nation states, the EU Commission’s affirmation of a European

political identity has involved more than policymaking and other activities through
coordinated and cohesive institutional mechanisms. It has also entailed the expres-
sion of distinct values. We have considered the Commission’s assertions in two very
different trade-related areas: the TTIP and CETA negotiations in the area of GMOs
and hormone beef on the external front, and the DSM on the internal market front.
We noted divergent discursive approaches. In the case of the TTIP and CETA, the
Commission has expressed a commitment to food quality, consumer health, animal
welfare, and environmental protection. In the process, it has positioned itself as the
protector—against North American big business—of traditions and long-standing
approaches to cultivation and food. In the case of a DSM, by contrast, the Commis-
sion’s language has been more progressive: It has presented itself as uniquely posi-
tioned to bring its member states up to speed with the realities of a fast-changing,
global marketplace where efficiency, seamless national borders, and consumer and
business freedoms are essential for competing.
The findings thus highlighted, in line with the insights of economic sociol-
ogy, both the cultural and symbolic materials that trade inevitably necessitates as
well as the malleability and flexibility of that material. Put simply, trade is never
purely an economic matter, and the specific type of cultural and symbolic mate-
rial that is bound to accompany it is open to articulation and specification. This,
of course, offers opportunities for self-definition but also challenges: Indeed, as
we learned, the Commission can adopt rather contradictory approaches even as it
is ultimately aiming, in economic terms, for the establishment and promotion of
European-level standards and goals. If too prevalent or extreme, these differences
might prevent the EU from asserting itself, with clarity, in the world and across its

13
The EU’s initiatives on the DSM have largely been praised for their transparence and vision. How-
ever, some criticisms—albeit much less vocal than with food—have been raised. While the Open Science
Cloud, for instance, has not attracted many objections (see https://www.nature.com/news/don-t-let-europ
e-s-open-science-dream-drift-1.22179), the choice of Elsevier—a for-profit company that has historically
benefited from restricting access to scientific data unless users pay—as monitor of the database has irked
some observers (see, for instance, Tennant 2018).

47 Reprinted from the journal

 F. Duina, E. Smith

population—something that has certainly plagued the EU generally over time (see,
for instance, Schmidt 2014 and Meunier and Nicolaïdis 2006, but for a different per-
spective Macaj and Nicolaïdis 2014) and that EU officials do not seem particularly
cognizant of. Ultimately, the EU’s political profile, to succeed, will need to be easily
graspable and recognizable.
We noted that the Commission’s stance on TTIP and CETA has reflected estab-
lished protectionist traditions around food within the member states and at the EU
level. In the case of the DSM, by contrast, the Commission, operating in a much
looser historical context, has adopted a more market- and future-oriented competi-
tive discourse and set of policies. Preexisting regulatory regimes at the national and
EU levels, then, have influenced the EU’s trade positions. But, of course, this is not
to say that other factors are irrelevant when it comes to EU trade policy. The strate-
gic or opportunistic behavior by the Commission itself, the preferences of domes-
tic and internal political actors, the bureaucratic logic of the EU itself, and whether
the effort concerns external versus internal trade likely all play a role. The papers
in this special issue, even if not about trade policy, point as well to other possible
drivers: EU institutions besides the Commission shape how policies are presented,
while varying levels of EU supranational competence across policy areas also mat-
ter. Future research could examine all these factors in more detail.
In closing, it is important to recall how, during the TTIP and CETA negotiations,
the Commission’s discourse has not gone unchallenged in the public sphere or inter-
nally within the EU itself. This suggests that rhetoric about values by the Commis-
sion should be seen as efforts to define a vision, rather than reflecting definitive or
unquestioned views of Europe. Thus, the extent to which the Commission’s efforts
are in practice successful remains a question in need of further investigation. This
applies to both the values it promotes and the sort of roles it claims for itself.

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Publisher’s Note Springer Nature remains neutral with regard to jurisdictional claims in published
maps and institutional affiliations.

Francesco Duina is Professor of Sociology at Bates College (USA) and Honorary Professor of Sociology
at the University of British Columbia (Canada).

Ezekiel Smith is an undergraduate student at Bates College (USA) majoring in Economics and Environ-
mental Studies.

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Comparative European Politics (2019) 17:512–529
https://doi.org/10.1057/s41295-019-00170-9

ORIGINAL ARTICLE

Transforming identity in international society: the potential

and failure of European integration

Thomas Diez1

Published online: 29 March 2019

© Springer Nature Limited 2019

Abstract
This paper relates the theme of integration and identity to the fundamental question
of political organisation. It starts from the premise that regional integration contains
the potential to transcend the organisation of societies in mutually exclusive territo-
rial containers. Against this, the work of David Mitrany and Hedley Bull cautions
against too much optimism: in Mitrany’s case because the reinsertion of territory in
regional integration; in Bull’s case because of the power of the existing rules of the
society of states. The paper develops these arguments and makes a plea for taking
them serious while still upholding the transformationalist promise of integration. It
argues that the potential and problems of the identity-transforming effects of inte-
gration become visible in particular at regions’ borders. In the case of the EU, its
involvement in the Cyprus and Ukraine conflicts is instructive. In both cases, the
paper shows how interested parties within the EU and in the conflict cases them-
selves, as much as the political effects of seemingly technical rules, have played
their role in the reproduction rather than the transformation of conflict identities.
This ultimately raises the question of how we imagine regional integration projects
to relate to each other without replicating the territorial boundaries of nation states.

Keywords Identity · Integration · Borders · Orders · Cyprus · Ukraine · Conflict

transformation · European Union

* Thomas Diez
[email protected]
1
University of Tübingen, Tübingen, Germany

53 Reprinted from the journal

 T. Diez

Introduction: integration and the challenge of identity and borders

1
To what extent does regional integration challenge or rather replicate prevailing
conceptions of political identity? The contributions to this special issue focus on the
ways in which EU institutions engage in the construction of an EU identity. They
demonstrate that these identity constructions tend to follow modernist lines: the
instruments and mechanism used, the symbols invoked are not that different from
the attempts to forge state identities. Yet if integration does not make good on its
potential to alter the territorial inside/outside conceptions of identity, what would be
its significance?
In this piece, I argue that we cannot fully understand the construction of EU
identity without including an analysis of EU foreign policy, and without taking into
account the linkage between identity, borders and bordering practices. Identity, fol-
lowing the introduction to this special issue understood as “the articulation of politi-
cal values and norms that are claimed to be fundamental, shared and different from
other polities” (Saurugger and Thatcher, this volume), is intimately tied to borders
(Albert et al. 2001). Borders construct identities, setting self and other apart. They
define the reach of political orders, and the values and norms enshrined in their
rules.
I claim that EU engagement with its Near Abroad suggests that the transforma-
tive effect of EU policy at its own borders on the basic structure of political identi-
ties is limited. Indeed, rather than contributing to a fundamental change of how we
understand political identities, the EU, or those representing the EU and its member
states, seem to replicate traditional, modernist border practices. Sometimes, they do
so explicitly in demarcating the EU against significant others—Russia, for instance.
More interestingly, however, I also show how EU institutions, including the Com-
mission, engage in bordering policies and thus in identity construction without nec-
essarily intending to do so through the pursuit of functional policies with border-
ing implications. More specifically, my cases show how the integration into the EU
market requires the implementation of specific rules and standards, which not only
insert trade boundaries, but also signify a European “standard of civilisation” as part
of EU identity.
The focus of this paper is on how the transformationalist potential of integration
is challenged at the EU’s outer borders in a situation in which enlargement is widely
seen to have reached a limit, and in which therefore disputes at the border serve to
articulate particular identities for the EU and its neighbourhood. My particular inter-
est is in the resistance to the transformationalist potential and in the re-inscription of
territorial identities into the prevailing understanding of the integration process. To
capture this resistance and locate it within the contradictions of the present integra-
tion project, the following section revisits two core thinkers of international society,

1
I initially presented this paper at the 2016 Pan-European Conference on European Union Politics
in Trento, and revised versions at various conferences and workshops since. I am grateful to the other
authors of this special issue, but in particular to Sabine Saurugger, Mark Thatcher and the two anony-
mous reviewers for their excellent, challenging and constructive comments.

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Transforming identity in international society: the potential …

David Mitrany and Hedley Bull, both of whom, for different reasons, have been
sceptical of the transformationalist credentials of European integration. While Mit-
rany alerts us to the internal contradictions of European integration when it comes
to alternative conceptions of identities, Bull reminds us of the external constraints
of articulating an alternative political order in the context of the prevailing society
of states. Both of these argumentations are well known. Yet the analysis of regional
integration has marginalised them, even though they allow us to reflect on the rela-
tionship of borders and identity in a way that speaks directly to some of the current
problems of the EU, its emerging foreign policy, and the ambiguities that EU pol-
icy makers find themselves in between their integrationist stance and their location
within a statist order (Ahrens 2018).
On the back of this, Sect. 3 outlines a general theoretical approach about the
formation of regional identities, borders and orders in international society. This
approach takes up some tenets of strategic constructivism as it informs this special
issue insofar as it takes the articulation of particular positions towards integration
from within a specific context and its advocacy of specific identities and interests
seriously. Yet it exceeds strategic constructivism by drawing on both a broadly criti-
cal discursive and an English School framework to question the context in which EU
policymakers operate.
Sections 4 and 5 then illustrate this (outline of an) approach by applying it to the
cases of Cyprus and the Ukraine. I use these cases because each of them brings to
the fore the problems of presently prevailing articulations of EU borders and tradi-
tional territorial identity. In the Cypriot case, this is a contested outer border emerg-
ing because of enlargement and folding an unresolved border conflict into the EU.
The Ukrainian case represents a contested border beyond present, formal EU bor-
ders, but in which claims about the extent to which EU borders in practice exceed
these formal borders and inscribe identities and orders beyond them are central to
the dispute. In both cases, we see how the problems that Bull and Mitrany have
identified constrain the transformationalist potential of integration and allow for the
articulation of resistance. Such articulations in turn put forward the identities and
interests of specific political actors to strengthen their position in the two conflicts
on the one hand, and their position in national and EU political institutions on the
other. Articulations of EU identity thus not only work towards the “inside” but have
an effect on actors and conflicts beyond the EU itself—yet not always in the way this
may be intended by EU institutions.
These illustrating analyses then lead to a concluding plea to take the politics of
EU engagement at its borders more seriously and to see it as an ongoing struggle
over the appropriate political order and identity.

Limits of transformation: revisiting Mitrany and Bull

In this section, I first turn to two basic challenges to the transformationalist poten-
tial of European integration by invoking two eminent thinkers of international soci-
ety, David Mitrany and Hedley Bull. I derive from their works what I call the “Mit-
rany” and the “Bull problem”, respectively. They both tackle two core issues when

55 Reprinted from the journal

 T. Diez

it comes to the transformation of political identity and borders: How radical is the
transformation of identity and borders through integration, and how likely is it that
such a transformation will succeed?
In the society of states, political order traditionally has been equivalent to state
order. The modern territorial state was the main reference point for political identi-
ties and a container of norms and values considered to be fundamental to a society.
Yet the relationship between borders and identity is never fixed. It is continuously
rearticulated in a struggle over the “right” order with its appropriate borders and
identity. Consider one of the core questions at the heart of political struggles at the
beginning of the twenty-first century, which has been the focus of debates over EU
identity as well. Do we want to live in a world of a global market in which the state
and the economy have different extensions and assume a double identity of political
citizen and market participant? Or do we prefer a world of nation states, in which the
identities and borders are clearly defined but exclusionary? Or are there alternatives
to this dichotomy?
On a fundamental level, political struggle thus is about articulating a specific
“node” of identity, borders and order (Laclau and Mouffe 1985). Such articula-
tions do not have to explicitly deal with identity or borders. On a superficial level,
they may advocate particular market policies or safety standards. Yet they may still
invoke basic assumptions or “fundamental values” about the “true” nature of soci-
ety, economy, knowledge, progress, to name but a few. In order to make their claims,
such articulations must represent these values as ontological truths. Yet it is in the
nature of things that values are contested. Thus, even policy statements that seem
to be unrelated to matters of identity tend to continuously inscribe these values as
fundamental into public discourse, and thus engage in the construction of identities
(Diez 2001).
Articulations of regional integration are no exception. Regional integration and
the resulting governance structure as a kind of political order is a political ordering
project that promotes new forms of identities and borders. “Speaking Europe” (Diez
1999) is to make claims about where Europe “is supposed to be” (Walker 2000),
how it is to be legitimately organised (Jachtenfuchs et al. 1998), and what its identity
is (Wodak and Boukala 2015). At the beginning of the European integration project,
in the aftermath of World War II, the most radical articulation of integration con-
structed it as a revolutionising challenge to the traditional state order. Many in the
resistance movement during the war who carried the move towards integration in
the European Movement saw the nation state, with its exclusionary and revisionist
tendencies, as the origin of the devastation of two world wars. They saw integration
as a means to rearticulate borders and identities to transcend the order of the inter-
national society of states into an order of regions. Yet contestation over how exactly
such regions were to be constructed was and remains a matter of fierce dispute.
In this dispute, some advocated a wholesale transformation of international soci-
ety. Let us call them transformationalists. These included functionalists for whom
territory was not the appropriate reference point for political orders to produce
welfare and who emphasised the role of experts and transnational interest groups.
For integral federalists, overlapping identities on multiple levels necessitated the
construction of loose, flexible and criss-crossing political orders within a broad

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Transforming identity in international society: the potential …

framework (Diez 1997). This transformationalist position embodied an ethos of inte-

gration that aims at a new order of peace in which territorial identities, and thus
the linkage between fundamental values and a specific territory, no longer dominate
our conceptions of the political. This does not make such an order unproblematic—
it, too, privileges some identities and interests over others, and would necessitate a
radical re-thinking of democracy without its state container that we have still not
accomplished. Yet with the transformationalists, I share the basic critique of the
exclusionary and conflict-laden effects of a territorial state order and the identities
it embodies.
Mitrany and Bull, although they differed widely in their conceptualisation of
international society, were both sceptics when it came to the transformationalist
potential of European integration. Bull is the main theorist of a pluralist international
society. In his main work, The Anarchical Society (1977), he outlines the contours
of an international order among states despite their coexistence within an anarchi-
cal structure, that is, in the absence of hierarchy and thus of instruments that would
allow the enforcement of international law. To Bull, such anarchy does not mean
that there is no society. Instead, he posits that states have common values and inter-
ests that bind them together and which they pursue through common institutions,
which Bull identifies as international law, diplomacy, great power management, bal-
ance of power, and war. The main purpose of these institutions, according to Bull,
is to ensure sovereignty and non-intervention. To Bull, these are core norms that
all states share, and he argues that there are good reasons for these norms, as they
allow the coexistence of different cultures and thus of identities within the plurality
of states. A defining element of Bull’s international society is therefore the existence
of sovereign states with clear and mutually recognised borders. In this world order,
universal human rights claims, for instance, are mediated through states and cannot
take on a legitimate significance of their own. This sets the pluralist international
society apart from more solidarist conceptualisations, in which state responsibilities
exceed state borders and identities, such as in the Responsibility to Protect. Conse-
quently, Bull, as I will elaborate in a moment, although entertaining the idea of a
transformationalist potential, could not envisage European integration to challenge
the order of the society of states fundamentally. Instead, he thought that ultimately,
this order will force the EU to become a state itself or fall apart.
For Mitrany, this statist order is neither appropriate nor ethically defensible. It
inhibits the free articulation of interests, is prone to violent conflict between states
and prevents the fulfilment of crucial welfare needs by imposing a national struc-
ture and identity on what are essentially transnational problems. A replacement of
the existing nation states with federal states on a higher level would not do away
with these problems because not only would it be unrealistic to expect states and
national publics to easily give up their sovereignty claims; such a federal state would
still privilege the dysfunctional territorial order and think of identities as territorially
bound. Mitrany (1966) thus sees the order of a “working peace system” in a subver-
sion of national identities and state structures through functionalist arrangements,
the borders of which are not set and territorially defined but fluid and dependent on
functional linkages to a particular policy area. Functional identities would replace
territorial ones.

57 Reprinted from the journal

 T. Diez

While the European integration project of Monnet built on these functional-

ist ideas, its neofunctionalist reformulation of European integration changes two
important parameters. First, it ties functionalism to a particular region (rather
than devising a global peace system) and thus ultimately to territory. Second,
such a reintroduction of territory into political order opens up the possibility to
insert a centralised authority (viz. the European Commission) to foster and “cul-
tivate” the spill-over processes that functionalism sees unfolding between linked
policy areas, thus spreading the drive towards political reorganisation to ever
more policy fields.
Therefore, despite being the father of functionalism, Mitrany always rejected
regional integration as the wrong path towards world peace. The following quote
captures his reservations:
Could a European union, in the long run, benefit its own peoples if it tends in
the least to split the world afresh into competing regional sovereignties? Is not
breaking through that dour barrier of sovereignty the ultimate test? In a world
of a hundred and more states sovereignty can in simple fact never be disman-
tled through a formula but only through function, shedding national functions
and pooling authority in them; unless we are to give up all purpose of wide all-
round international sharing in the works of peace (Mitrany 1965: 145).
Mitrany’s worry was that European integration would lead to the formation of a
regional bloc with quasi-sovereign qualities and thus re-produce the nation state
and national identities on a higher level. To him, the regional (and thus necessar-
ily bordered) re-vamping of functionalism and the insertion of a centralised, quasi-
federal political structure through neofunctionalism undermined the basic idea of
the organisation of politics through functional rather than territorial linkages. In
identity terms, European integration thus reinserts a territorial identity in a sense of
European-ness, whereas Mitrany’s peace system works because actors align along
functional rather than territorial lines.
Building global governance on functional linkages may seem utopian, and it may
especially have done so in the 1940s and 1950s, which is why the reformulation of
functionalism as a neofunctionalist European integration project seemed necessary
in the first instance. Here, Hedley Bull’s scepticism towards the EU as an alterna-
tive model for international society and towards the idea of “civilian power Europe”
is instructive. In his Anarchical Society, Bull (1977) introduces the idea of a “new
medievalism” which he sees developing in Europe, and in which political identities
and borders, and thus of political order and power, would be overlapping. However,
he dismisses such a neomedievalism as a future permanent feature within interna-
tional society. Ultimately, he sees the norms of the pluralist international society
prevailing, and Europe, Bull forecasts, would either disintegrate or become itself
like a state. For the same reasons, he rejected Duchêne’s notion of civilian power
Europe, as he would have had objections to the argument’s later rendition as norma-
tive power Europe (Manners 2002). You could not, Bull (1982) argued, be a great
power without some military might that would allow you to persist in the context
of the Cold War. It was the member states who had that might but did not play it to
their full capacity, and on what was then EC level, they would be well advised to

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Transforming identity in international society: the potential …

coordinate their defence activities rather than engaging in transformations of politi-

cal identity.
For a long time since the end of the 1980s, integration scholars were quick to
dismiss Bull’s sceptical assessment of the EU’s transformationalist potential. And
yes, the EU has become a widely accepted actor in international society even if it
is not recognised as being on a par with states. Yet the enthusiasm of the late 1980s
to early 2000s in terms of the effects of the EU on changing identities, borders and
orders has at least dampened, if not evaporated. The normative power argument,
in the spirit of the transformationalist integration ethos, presumes that the EU is
able to shape what is considered “normal” in international society (Manners 2002:
239–240). It would do so by fundamentally altering the status of territorial borders,
and thus of national (or for that matter pan-European) identities through the advo-
cacy of an alternative order of overlapping regions in which the territorial borders
of national orders and identities lose significance. But what if, rather than changing
the rules of the game, Bull is right and the rules socialise the EU into the existing
game? What if, rather than transcending territorial borders as such, the EU merely
engages in producing “new geographies” (Casas-Cortes et al. 2013)? What if there
is a “return of geopolitics” in EU external relations (Diez 2004a), and thus a return
to territorial, exclusive identities?
As I have outlined in the introductory section to this piece, articulations of iden-
tities, borders and orders are always contested in a struggle to achieve hegemonic
status. The hegemony of one order today may cede to the hegemony of another
order in the future, as in fact it has done historically: we neither live in a world of
city states nor of colonial Empires anymore. Yet contestation is not equivalent to
transformation: hegemonic structures may prevail; they may even be strengthened
through resistance. So despite the contingency of identities and the state order, there
are some aspects of the integration process which have limited the ability of the EU
to change the “normal” in international politics, and instead furthered its socialisa-
tion into existing international society practices. The Bull and the Mitrany problems
identify these aspects as the difficulties to make a regional order translatable into the
discourse of the prevailing state order and the inconsistency of inserting a territo-
rial dimension into functionalism. Both of these problems of regional integration
provide vantage points for the articulation of resistances to the transformationalist
project and thus of statist identities and orders in disputes over Europe’s borders.

Regional order, identity and border formation in international

society

The discussion so far suggests a number of core propositions for the development of
a theoretical approach to analyse the construction of regional identities in interna-
tional society. These propositions can be summarised as follows:

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 T. Diez

1. Political identities, borders and orders form a triangle of interlinkages. Their

respective meaning depends on the constructions of the other two concepts. Dis-
putes about borders are therefore always also disputes about identities and orders.
2. Political identities, borders and orders cannot be taken as given. Instead, they must
continuously be reproduced and reconstructed, or “articulated”. Such articulations
are an attempt to achieve at least a temporary hegemony in which the meaning
and relation between identities, borders and orders seems settled. They take place
in multiple settings, and do not have to explicitly invoke conceptions of identity.
The articulations of identities and borders are performed by actors with their own
identities and interests, which emanate from specific, contingent and historically
formed subject positions. These actors are strategic in the sense that they pursue
their interests and particular constructions of identity, knowingly or not, in their
advocacy of specific regional orders and borders. At the same time, their interests
themselves emerge from the specific historical and discursive context from which
they speak.
3. In the traditional international society, identities, borders and orders are tied to
the modern territorial state so that, in ideal typical fashion at least, identities are
national, borders are clear and contiguous, and the prevailing order is that of the
state and institutions that states have formed in order to protect their core norms
and interests of sovereignty and non-intervention. Regional integration challenges
this specific rendition of political identities and borders, and the orders they sup-
port. In its most demanding version, this challenge is a revolutionist agenda to
replace states with overlapping regions, but at the very least, it would involve
significant steps towards a solidarisation of international society.
4. Yet this challenge to the prevailing hegemony is contested, and meets with resist-
ance from actors both inside and outside, who continue to privilege and articulate
statist conceptions of identities and thus reproduce territorial borders. Both the
institutional set-up of the EU as well as the context of the presently hegem-
onic conception of a pluralist international society as a society of states provide
resources to draw on in the articulation of regional identities, borders and orders.
Supporters and contestants of transformation utilise and appropriate these dis-
cursive resources to articulate their competing visions of identities, borders and
orders.

These propositions require us to put the politics of border articulations at centre

stage. Border policies do not simply respond to objective security demands or
functional market requirements. EU engagement is not that of a doctor curing
sicknesses of nationalism or economic malpractice. In these policies and engage-
ments, EU institutions and their representatives articulate specific visions of
borders, political identities and orders. Yet these articulations are contested, and
other actors instrumentalise them to support their own positions and legitimise
their own articulations of political identities. The following two cases illustrate
how such a framework helps us to capture the complexities of EU border engage-
ment and the construction of European identity. However, the cases also show

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how both EU and other actors do not want to or cannot escape the modernist,
statist conceptions of identities, borders and orders, and the inside/outside logic it
entails (Walker 1993).

Case I: Cyprus

Cyprus is an instance of border and identity articulations in at least two senses.

Cyprus itself constitutes the outer border of the EU towards the Middle East. This
raises fundamental questions about the identity of Cyprus: Is it part of a “Western”,
“Eastern”, i.e. orthodox, or “Middle Eastern” civilisation? Note that to pose this
question in such a way is already a particular representation of identities as exclusive
and unified, whereas in places such as Cyprus, they present us with a historically
grown mix of influences from a variety of backgrounds. Yet in the debate about EU
enlargement, such questions have strongly surfaced in the support or opposition to
EU membership, and they did not only articulate the identity of Cyprus but also that
of the EU or more broadly “Europe”.
The Greek-Cypriot government thus redefined Cyprus as the cradle of European
civilisation in the context of the membership campaign, rather than the mixture of
West and East that it is. Against the opposition of the Cypriot Orthodox Church,
and ignoring the Islamic influence on the island, the campaign emphasised ancient
classic aspects and in particular the birthplace of Aphrodite—never mind that the
ancient Aphrodite cult with its involvement of prostitution is perhaps not exactly
what we would associate with “civilisation”. Based on this definition as a European
state, Cyprus played the same rhetorical game as most of the Central and East Euro-
pean states, keeping the EU to its promises of a belonging to Europe and thus of
membership (Fierke and Wiener 1999; Schimmelfennig 2001). Such membership
claims in turn emanate from the Mitrany problem of having to determine who is in
and who is out once territoriality is reinserted into a functionalist system.
These articulations not only construct Cypriot identities but also European ones,
and accepting Cyprus based on its classicist narrative therefore likewise asserted
a specific identity of Europe as a whole, including a focus on a Hellenic-Western
instead of a more plural identity. In the context of Eastern enlargement, this meant
a marginalisation of Eastern orthodox and Islamic identities in the new Europe as
well, which fitted and reinforced the “return to Europe” narrative and the othering of
Russia in that context (Kuus 2004).
Cyprus secondly presents us with a border conflict that the EU initially had lit-
tle direct impact on, although the UK as an EU member state and former colonial
power on the island had significant influence on the development of the conflict.
The Republic of Cyprus became independent in 1960 with a consociational consti-
tution, sharing power between Greek and Turkish Cypriots in a complex system of
balance, and thus proposing a specific kind of political order that was designed to
transcend identitarian divisions yet at the same time presupposed and reinscribed
them (Jarstad 2001). Not being supported wholeheartedly by politicians on both
sides, the constitution quickly ran into crisis, with civil unrest and atrocities, largely
on Turkish Cypriots, following from late 1963, leading to one of the oldest UN

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 T. Diez

peacekeeping missions UNFICYP. When the then Greek junta, together with Cyp-
riot national terrorists EOKA-B, staged a coup to oust President Makarios, Turkey
as one of the three guarantor powers of the constitution (the others being Greece and
the UK) intervened militarily in the summer of 1974. This led to the partition of the
island, with UNFICYP now patrolling the Green Line separating north from south.
In 1983, the north unilaterally declared independence, but the “Turkish Republic of
Northern Cyprus” has never been recognised by any state other than Turkey (who,
in turn, does not recognise the Republic of Cyprus for violating the core premises of
the 1960 constitution).
The EU got involved in Cyprus when in 1990, the Republic, supported by
Greece, filed a membership application. While the Commission viewed this scepti-
cally, it eventually accepted the application in 1993, in a bargain that paved the way
for the customs union with Turkey at the same time. Formal negotiations began in
1998, and Cyprus was part of the “big bang” enlargement of 2004. Hopes that there
would be a solution to the conflict before membership were dashed when a major-
ity of Greek Cypriots rejected the UN-sponsored Annan Plan, which would have
introduced a new constitution of a United Cyprus Republic. Since then, legally the
Republic of Cyprus (including the north) is an EU member, but the acquis com-
munautaire is not applied in the north, although the EU has set up a number of aid
programmes for Turkish Cypriots. Then Turkish-Cypriot President Rauf Denktash
opened the border in 2003 (until then only tourists could cross, and only for a day,
from south to north and back), and trade between north and south post-2004 has
become possible through the Green Line Regulation. Yet nonetheless, the border
still functions as a de facto boundary of the EU in terms of immigration and direct
trade between north Cyprus and other EU countries. Such trade remains impossi-
ble because the Cypriot government has continuously vetoed the Commission’s pro-
posal for a Direct Trade Regulation, which would have circumvented the problem
of a possible indirect recognition of the TRNC because of an acceptance of state
certificates for export goods. Meanwhile, the discovery of gas fields around Cyprus
has opened up new possibilities for cooperation yet also for staking out territorial
claims; and the election of Mustafa Akinci as new Turkish-Cypriot president has
provided peace talks with a new impetus.
What are we to make of EU involvement in Cyprus? Integration has evidently not
led to a solution of the conflict as the advocates of membership as a “catalyst” for
a solution had thought. In many ways, the border has persisted and to some extent
been “normalised”. While enlargement has pushed the need to find a solution and
thus contributed to the Annan Plan, the rejection of this plan has scuppered the
initial idea of unification. The EU became a reference point of the regime change
within the north of the island after 2001, but the actual cause was a financial crisis
and adjustment policies imposed by Turkey to which Turkish Cypriots reacted with
hostility. Likewise, the election of pro-solution Mustafa Akinci as President of the
TRNC had less to do with the EU than with domestic developments. Meanwhile, the
continued vetoing of the Direct Trade Regulation is evidence of how Greek Cypriots
have used integration and EU membership to pursue their own agenda.
Cyprus is thus an example of how the EU impact on borders is a lot more
ambiguous and politically charged than is often assumed. Integration does open up

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Transforming identity in international society: the potential …

possibilities of border re-framing, and with it the reconstruction of identities, but

how this happens is dependent on local actors and how they deal with these pos-
sibilities in their articulation in specific political orders. In Cyprus, the dominant
positions on both sides have used the EU to support their own claims and thus repro-
duced the border rather than undermining it. The logics and demands of the internal
market have further contributed to the continued relevance of the border.
The (re)inscription of the border has also had to do with inherent if unintended
effects of seemingly technical rules in relation to market integration. While liberal
logic sees markets as principally unbounded, markets need organisational structures
that regulate production and set common standards for consumer protection, among
other things. In addition, in the absence of a truly global, all-encompassing market,
market access is an issue that requires agreement on tariffs and duties and thus on
borders that would function as entry points for goods.
The particular importance of this issue is that market integration is a seemingly
technical project at the heart of European integration, which creates a particular
order focused on the market and thus, for instance, on market citizenship (Haltern
2004), and thereby also constructs a particular market identity. The fact that it was
the European Court of Justice and not the member states that in 1994 decided that
Turkish-Cypriot citrus fruit could not be traded in the EU without the appropriate
certification by legitimate authorities is highly illustrative for a technical market
understanding. This applies even though it was the Republic of Cyprus via a court
case in the UK that instigated the case, and even though the member states inter-
preted the ruling extensively and not limited to the citrus fruit at stake (for an analy-
sis of the case, see Talmon 2001).
Yet as the Cyprus case demonstrates, the market as envisaged within a regional
order is not apolitical. As the Mitrany problem suggests, the insertion of a territorial
dimension into the market logic leads to the necessity to define borders and authori-
ties, and thus to contestation over the nature of borders, the allocation of authority,
and the concrete construction of political order. Thus, in the Cyprus case, the cer-
tification of goods became a major issue: Who is authorised to perform this certi-
fication? Conflict parties have used the answer to this question to reproduce their
respective orders, identities and the borders between each other. The Greek-Cypriot
government has vetoed the Direct Trade Regulation that would have allowed certifi-
cation of goods by the Turkish-Cypriot Chamber of Commerce as undermining the
sovereignty of the Republic of Cyprus, thus reproducing a particular understanding
of political order on the island. Vice versa, many Turkish Cypriots see it as inap-
propriate that a Greek-Cypriot authority would certify their goods, thus rejecting
the political order claims of Greek Cypriots and at the same time inserting their own
identity and order.
In all of this, the Cyprus case also shows the limitations of the transformationalist
potential of regional integration. If integration is to transcend the society of states,
in Cyprus it has served the opposite purpose. Cypriots have utilised it in their “dis-
course of recognition” (Constantinou and Papadakis 2001), reinscribing their own
sovereignty and identity claims. Met with these resistances in a society of states, the
transformationalist claim was pushed back, and its only hope remains for a long-
term subversion of the borders (Diez 2004b). Yet in the meantime, a combination

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 T. Diez

of political interests in Cyprus and some EU member states, in the context of sup-
posedly ethnic conflict marked by a strong emphasis on exclusive identities, and in
combination with the unintended, territory-reinforcing effects of a technical market
requirement have led to the reification of national identities in Cyprus and the con-
struction of a classicist–idealist identity on the EU level.
This is not to say that there are not many actors on the island or in fact in the
EU who consciously try to foster alternative conceptions of borders and identities
on the island. Civil society actors in the Home4Cooperation in the buffer zone, for
instance, have worked to envision an open Cyprus of multiple identities in spite of
the de facto border (e.g. Hadjipavlou 2017, on the limitations of these efforts, see
Vogel 2018). The Direct Trade Regulation was an attempt from the EU side to break
through the idea of clear-cur geographies. So alternatives do exist, as my framework
suggests, but the power configurations both in terms of real actors and in terms of
hegemonic discourses serve to marginalise these alternatives (as Bull suggested) and
continuously re-insert a territorial logic (as Mitrany warned). One of the core les-
sons of this case in terms of the question of how European institutions construct
political identities thus is that even if they do so in an explicitly transformationalist
spirit, the logic of their policies and the resistances of other actors re-impose a mod-
ernist frame.

Case II: Ukraine

The case of Ukraine shares some similarities with Cyprus. As in Cyprus, the logic
of market access plays an important part in the unfolding of the conflict against
the deliberate efforts of EU policymakers to provide alternatives, and the technical
provisions of the association agreement implied deeper questions of economic and
political identity. Again as in Cyprus, a strong external actor (in this case Russia)
occupies part of the territory, unrecognised by the international society. The con-
flict itself is also part of a quasi-colonial setting, and arises from the dissolution
of the Soviet empire. It draws on existing divisions between identity groups, which
however are even more contested than in the case of Cyprus, where the bifurcation
of society had developed over a longer period and is marked by more obvious divi-
sions in language and religion. And again, this is a case where local populations
have instrumentalised the EU to stake out their identity and political order claims,
supported by allies among EU member states who had specific interests in bringing
the Ukraine closer to the EU.
Yet the EU role in the development of the Ukrainian conflict differs from that in
Cyprus. In Cyprus, the EU has not worsened the conflict and has reified the border
at worst, and partially punctuated it at best. In the Ukraine, EU involvement, at least
after the 2014 Euromaidan, has contributed to a worsening of border conflicts and
to the development of new territorial and identity claims (MacFarlane and Menon
2014; Mearsheimer 2014).
Because of the end of the Cold War, and as part of the broader development of
enlargement, Ukraine ended up in the immediate neighbourhood of the EU, border-
ing EU member states. In 1994, both sides signed a Partnership and Cooperation

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Agreement, which went into force in 1998. The Orange Revolution in the country
overthrew a Russian-friendly government in 2004. The new government negotiated
an Association Agreement that is heavily contested between the two sides as well as
between Russia and the EU, and the Ukraine became party to the EU’s Eastern Part-
nership programme. In 2013, President Yanukovych put the Agreement on hold. The
failure to sign the Agreement led to further heavy protests in the “Euromaidan” and
yet another change in government in early 2014. The new Prime Minister Yatsenyuk
signed the agreement in March 2014, with its economic parts signed in June. The
implementation of the trade-related regulations of Title IV was then suspended until
the end of 2015. Russia reacted by annexing the Crimea in March, followed by fur-
ther insurgencies and ultimately war in various parts of Eastern Ukraine, focussed
on the Donbass region.
Ukraine is interesting not only in and of itself, but because it raises the broader
question of EU–Russia relations at their borders of influence, and stands in marked
contrast to the development in Europe’s north in the 1990s and early 2000s. There,
the EU found creative solutions to the border problems raised by enlargement by
establishing visa-free zones and engaging in cross-border regional cooperation pro-
jects (Browning and Joenniemi 2008), even though a degree of othering of Russia
persisted (Browning 2003). This reflected a conception of more fluid and overlap-
ping political identities in the spirit of what I have called a transformationalist ethos.
The differences between Ukraine and Europe’s North are due to a variety of circum-
stances—the different standing of Russia in the late 2000s, the change from Yelt-
sin to Putin, differences between enlargement and association, and a different con-
flict behaviour displayed by the parties, among others. Yet even so, they highlight a
development to less fuzzy, harder EU borders and thus political identities since the
turn of the millennium (Sakwa 2015).
Of course, on the ground diplomats still have to engage in “borderwork” (Rum-
ford 2008) that engages in both “boundary-spanning” and “boundary-drawing”
(Hofius 2016). Yet even EU diplomats in Ukraine during Euromaidan constructed
the EU and Ukraine in predominantly modernist ways: with a European identity, but
with an organisational mentality that “we” Europeans still have to teach them how to
do things “properly” before they can fully be part of the EU (Hofius 2016: 961–964).
Such a temporal ambiguity however is not a break with modernity; it rather follows
long-standing practices in the society of states from the “standard of civilisation” to
outright colonialism (see Nicolaidis et al. 2014).
As in the case of Cyprus, the dispute over EU policy towards Ukraine culminates
in a seemingly technical issue of the extension of a market area of free trade. Such
issues are not normally in the focus of political attention. Yet the Ukraine case illus-
trates once more how such issues are not the low-politics, purely functional issues
that they may seem at first sight. Instead, in such conflict situations, they may be
highly politicised and heavily contested, and thus reproduce rather than overcome
borders and reinscribe identities. In this case, as the conflict intensified leading up
to and following Euromaidan, local actors used the association agreement to stake
out their claims of Ukrainian identity and political order, a Western-liberal order and
identity set against an Eastern, Russian-dominated one. Actors within the EU, such
as Poland, acted as champions for Ukraine in an articulation of European identity

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 T. Diez

and order claims towards the East. Meanwhile, Russia made counter-claims about
this identity and order.
Ukraine thus is clearly a case demonstrating the failure of the transformationalist
logic of integration to actually change the norms and rules of international society.
Many observers in the early 2000s still thought of Ukraine’s turn towards Europe
as opening up the possibility for a post-sovereign conception of identity that would
overcome the historically grown traditions in the country (e.g. Wolczuk 2000). Yet
they underestimated how the pluralist conception of international society allowed
actors both within Ukraine and in Russia as well as among EU member states to
impose a narrative onto the conflict that saw identities as exclusive and political
orders as fundamentally competing (Haukkala 2015; Kuzio 2017). As Wolczuk
(2016: 70) observes, this has led to a weakening of identity differences between at
least large parts of the Ukrainian political elite and the EU, while at the same time
reinforcing “the geopolitical boundary” towards Russia.
This problem is related to Mitrany’s argument in that the insertion of a regional
dimension necessarily will lead to the inclusion of some and the exclusion of others
and thus insert inside/outside logics into seemingly functional issues. In Ukraine,
access to the EU market means raising new tariffs towards Russia and thus interrupt
trade linkages that had developed in Soviet times—an argument accepted within the
EU to the extent that trade provisions were ultimately postponed. Yet behind the
question of trade flows lurks the question of where we belong and what kind of order
we want. Those in favour of association articulated Ukrainian identity as western,
liberal, “European”, othering a “backward”, illiberal, Eastern order, and playing
into similar constructions on the EU level. Meanwhile, those resisting the associa-
tion agreement engaged in the very same identity “games” from the other side. In
that sense, the Ukrainian case brings to the fore all those fears that Mitrany raised
towards European Integration, and it demonstrates the weaknesses of an EU that
on the one hand aspires to overcome territorial borders and at the same time allows
their articulation through its own self-definition as a regional actor.

Identity and the transformative challenge for EU external policy

This article started from the assumption that articulations of identities, borders and
orders are closely connected, and that the very ethos of integration was to break
through the inside/outside distinctions of the territorial state and its reliance on
exclusive identities. While the integration process may have rescued the nation
state in Europe (Milward 1992), it did so in a transformed way. Member states have
been increasingly enmeshed in a web of rules and regulations. The initial focus was
on the transformation of borders within Europe and the newly founded European
Communities—partly because that was where many saw the main problem to be,
partly because the context of the Cold War provided a bordering framework that
was beyond the Europeans to transform. Yet once the Cold War had ended, enthusi-
asm of the European Union’s potential to transform borders beyond its internal ones
quickly ensued. The EU developed “fuzzy” outer borders with conceptions of over-
lapping and fluid identities, although analysts were quick to point out that its policies

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Transforming identity in international society: the potential …

at these borders were equally fuzzy, and in fact contradictory and full of inherent
tensions (Christiansen et al. 2000). Furthermore, a variety of authors explored the
possibility of the EU, through the promotion of integration and association, to trans-
form border conflicts and the underpinning identity constructions, although they,
too, highlighted the inconsistencies of EU policy and impact, and pointed out that
conflicts at the EU outer borders may actually intensify (Diez et al. 2006; Tocci
2007). It was fitting that in 2012, the EU received the Nobel Peace Prize.
The implications of regional integration therefore exceed the region itself. The
potential of integration is to alter our geographies of political identity and the bor-
ders of governance both within regions and beyond. Thus, within the normative
power debate in which the EU is seen as “shaping conceptions of the normal” (Man-
ners 2002), regionalisation is one of the norms that the EU pushes (Adler and Craw-
ford 2006; Ahrens and Diez 2015). Ultimately, as Manners (2008: 60) contends, the
ultimate litmus test for the EU as a normative power is whether it can ultimately
contribute to a fundamental change in international society so that such a society
is no longer made up of sovereign states and thus borders no longer function in the
separation of clear-cur territories and identities and are replaced with a new kind of
political order based on regions.
Yet as I have shown, studying the EU engagement at its borders paints a more
complex picture and shows that we need to adopt a stronger focus on the politics
and contestedness of such engagement. I have argued that actors both within and
outside the EU, actors use EU policies to articulate competing visions of identities
and orders from their historically formed positions, and these visions ultimately
often undermine the idea of a post-sovereign world. In doing so, following what I
have called the “Bull problem”, actors draw on the rules of a pluralist international
society that still has sufficient discursive weight to force transformationalist argu-
ments into the background. What is more, the Mitrany problem has alerted us to the
inherent tensions that arise from the insertion of a territorial logic into the function-
alist integration project. Thus, EU institutions and their representatives engage in
the construction of identity not only if they explicitly do so, but also if they pursue
ostensibly technical policies. I have illustrated this general framework with an analy-
sis of the cases of Cyprus and Ukraine. These have demonstrated the need to take
the contestedness of the transformationalist project as well as the interest and identi-
ties of the different actors involved in these conflicts more seriously.
As I have emphasised, these developments are not inevitable or teleological.
While I think that the arguments of Mitrany and Bull alert us to core issues at stake
in the Cyprus and Ukraine conflicts, their relevance, it seems to me, is that they draw
out possible developmental paths and thus dangers that actors need to be aware of—
and which, I argue, have not been considered seriously enough in the past decade.
Yet this does not mean that they are a foregone conclusion. Instead, while on the
one hand we must become more alert of the ways in which modernist conceptions
of identity prevail, on the other hand the contingency of borders, orders and identity
ought to provide us with the hope that “another Europe”, and therefore another way
to think about political identities, “is possible” (Manners 2007).
One of the most challenging tasks that this analysis poses thus is creative think-
ing about the future configuration of a regionalised world. How do we deal with

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 T. Diez

potential clashes at the borders of regional security complexes? How do we establish

links between regions? How can we conceptualise overlapping regions so that states
do not have to decide to belong to one regional organisation only? How can EU
institutions contribute to the realisation of the transformationalist potential of inte-
gration rather than constructing a modernist, exclusive European identity?
I have pointed to the experience in Europe’s North to demonstrate that the
EU may well draw on its own past policies in this respect. It may also learn from
regional integration elsewhere, such as in South America, where, although in very
different circumstances, parallel membership is more common. The resultant “spa-
ghetti bowl” of integration has often been frowned upon by Europeanists, but per-
haps we need to take such models more seriously and explore their advantages
rather than focusing on their problems. This would be a long-term planning task at
the priority of practitioners and academics in order to find a counterbalance to the
Mitrany problem.
None of this is to negate the importance of other great powers such as Russia
and their impact on policy decisions. Yet for once, I find myself in agreement with
John Mearsheimer (2014)—it is not all Russia’s, or for that matter Turkey’s fault—
although in contrast to Mearsheimer, my argument has been based on the idea that
the EU has been too realist (however implicitly) while at the same time (and here we
agree) not taking Russia’s realism seriously enough. It is up to the EU as a norma-
tive power to rethink political identity, territory and governance. This implies a less
technical and a more explicit political stance towards the EU’s borders and its neigh-
bourhood and demands of our analyses to take these politics more seriously.

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Publisher’s Note Springer Nature remains neutral with regard to jurisdictional claims in published
maps and institutional affiliations.

Thomas Diez is Professor of Political Science and International Relations at the Eberhard Karls Univer-
sity of Tübingen.

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Comparative European Politics (2019) 17:530–547
https://doi.org/10.1057/s41295-019-00174-5

ORIGINAL ARTICLE

Do central bankers dream of political union? From

epistemic community to common identity

Erik Jones1

Published online: 29 March 2019

© Springer Nature Limited 2019

Abstract
The European Central Bank (ECB) started life as a symbol of European commit-
ment to unity and to the value of central bank independence. As such, the ECB and
the euro were positive sources of identification with Europe. During the crisis, how-
ever, the role of the ECB changed. The instruments monetary policymakers used to
respond to the crisis had different impacts across member states, and the decisions
they took to address tensions in financial markets often appeared arbitrary. In this
context, the ECB ceased to operate as a symbol of commitment to integration and
central bank independence became a contested rather than a shared value. This essay
explains how that transformation took place and why it is important for the consti-
tutive role of the ECB in the European project. The argument ends with populist
movements using the ECB as a symbol for negative identification. European Central
Banks can only fight back by promoting some kind of European political union to
shore up their unique institutional arrangement.

Keywords European identity · Central bank independence · Political union ·

European Central Bank · Euro

The link between monetary union and political union is—to say the least—contro-
versial. Some, like Helleiner (2002), argue that a common currency can lay the foun-
dations for a common identity. Others, like Feldstein (1997), claim that monetary
union can lead to civil war. Both arguments have merits. Advocates of the identity
thesis can point to the persistence of support for the euro among those countries that
have adopted it as a common currency (Otero Iglesias 2017). Advocates of the divi-
sion thesis can point to the polarization in European debates around macroeconomic
governance (Brunnermeier et al. 2016).
The problem is finding a mechanism to convert these correlations into causation.
The link between money and identity is not obvious—otherwise, we would all live

* Erik Jones
[email protected]
1
School of Advanced International Studies, John Hopkins University, Bologna, Italy

71 Reprinted from the journal

 E. Jones

in countries named after more popular payment technology like Visa or MasterCard.
By the same token, the most controversial macroeconomic policies deployed by gov-
ernments in the euro area existed long before the single currency and are independ-
ent of the choice for monetary union (McNamara 1998). The contrasting Keynesian
traditions are one illustration; the tension between active demand management and
a macroeconomic stability culture is another (Hall 1989; Vail 2010). Indeed, many
of the original proponents of the euro hoped to create some kind of accommodating
macroeconomic policy conversation if not an outright economic government (Jabko
2015). If they failed, it was not for want of trying.
Nevertheless, there is a link between monetary union and political union that has
emerged during the recent crisis. That link does not run through identity or macro-
economic policy coordination. Rather it runs through the institutions that are shared
by dint of monetary integration. Central bankers have become some of the staunch-
est advocates of political union. You can see their support for the project in the Five
President’s Report on completing Europe’s economic and monetary union:1 in the
joint proposal by Bundesbank President Jens Weidmann and Banque de France
Governor Francois Villeroy de Galhau to create a European Finance Minister2 and
in European Central Bank (ECB) President Mario Draghi’s repeated calls for a
stronger and more cohesive Europe.3 Although many central bankers disagree on
specific policy measures—Weidmann and Draghi most prominently—they seem to
agree on the need for stronger European governance institutions. More importantly,
they argue that such institutions are necessary for the long-term viability of Europe’s
monetary union.
The purpose of this essay is to explore the link between monetary union and
political union that runs through the central banking community. In doing so, I hope
to illustrate the kind of ‘strategic constructivism’ at the heart of this collection (Sau-
rugger 2013). I also hope to underscore a theme from the introduction to the collec-
tion about how top-level institutions seek to foster supportive identities at the popu-
lar level. My argument is that we can see a connection between monetary integration
and political integration that operates despite cross-national differences in cultural
identity and policy preferences. The reason has to do with the limits of monetary
policy and the interdependence between money and finance. Although we tend to
view monetary policymakers as a tight epistemic community that craves political
independence, no central bank is an island that can be isolated from the rest of soci-
ety. Hence, political union is for central bankers a means of self-defense.
The problem is that central bankers have few instruments to foster political union
or to mediate macroeconomic policy conflicts (Jacobs and King 2016). Their self-
exclusion, both intellectual and institutional, is a weakness. Although the European
Central Bank has a world-class research capability that draws upon global policy

1
Five Presidents’ Report: Completing Europe’s Economic and Monetary Union. Brussels: European
Commission, June 2015.
2
See François Villeroy de Galhau and Jens Weidmann, ‘Europe at the Crossroads,’ (Berlin: Deutsche
Bundesbank, 8 February 2016).
3
See, e.g., Mario Draghi’s speech on accepting the Cavour prize on 23 January 2017.

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Do central bankers dream of political union? From epistemic …

networks for the analysis of macroeconomic performance and monetary policy, it

struggles to engage with stakeholders who are not already steeped in economic the-
ory and who do not belong to the wider epistemic community. Moreover, central
bankers recognize this vulnerability. Hence, we should expect to see central bank-
ers behave more and more like politicians, particularly but not exclusively at the
European level. As part of that political metamorphosis, we should expect central
bankers to pay closer attention to questions of identity formation—even if they are
not exactly sure what causal mechanisms connect European identity to the political
union they hope to bring about.
This argument has five sections. The first sets out the preconditions for central
bank independence. The second explores the implications of conducting an uncon-
ventional monetary policy. The third highlights the problem of assuming responsi-
bility for financial stability. The fourth explains why central bankers need political
union as self-defense. The fifth sets out the conditions for political union to work
effectively and suggests the difficulty central bankers have as advocates of more
Europe.

Splendid isolation

The European Central Bank embodies or encourages European identity formation

through its existence and not through its activities (McNamara 1998). The fact that
Europe has endeavored to construct an unprecedented multinational currency is a
symbol of common commitment to the integration project among Europeans; statu-
tory obligations imposed on the ECB as guardian of that currency reflect common
European values; and the images printed on the notes and coins appeal to shared
national histories and continental aspirations. In that sense, the euro as a common
currency and the ECB as its institutional centerpiece are essentially political institu-
tions. Following the themes set out in the introduction, the euro and the ECB con-
stitute identity by representing shared values. And one of the core values they are
meant to represent is the independence of monetary policy authorities from the tra-
vails of day-to-day partisan politics (McNamara 2002).
The political independence of the ECB is fundamental to the European project.
The European Treaties instruct the members of the governing council of the Euro-
pean Central Bank not to accept political guidance; those same treaties also instruct
Europe’s politicians both in the member states and in European institutions not to
attempt to offer guidance to the governing council of the ECB. These joint injunc-
tions offer a very strong form of central bank independence. Considering how dif-
ficult it would be for Europe’s heads of state and government to change the treaties,
moreover, it is likely that the ECB has stronger protection in its independent status
than any comparable institution set out in national legislation (Elgie 2002).
Given this intentionally strong protection of the political independence of central
banking, it is worth asking why anyone at the ECB would want to crossover into
politics—particularly if the goal is to foster a political union that would be able to
treat with the ECB on a more-than-equal status. The answer can be found in the
cup of confetti that a young woman threw at Mario Draghi during one of his press

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 E. Jones

conferences.4 The European Treaties may insulate the ECB from politicians, but
they cannot insulate members of the ECB’s executive board or its governing council
from ‘politics’ (Tucker 2018).
This intrusion of politics into central banking reveals a tension in the construction
of a European identity around monetary institutions. Identity formation is a politi-
cal process that revolves around the promotion of shared values; again, in the Euro-
pean monetary context, the key value that is meant to be shared is the insulation of
monetary authorities from politics. The problem is that politics means two different
things. In a constitutive sense, politics is the answer to the question about who we
are as a collective; in a distributive sense, politics is the answer to the question about
who gets what as a result of shared institutions or policies. The ECB plays a positive
role in European identity formation in the constitutive sense. The best we can hope
for the ECB’s role in distributive terms is that it will be ambiguous. The tension
arises when that distributive ambiguity disappears because winners and losers are
likely to have different perspectives on relative merits of having a politically inde-
pendent central bank.5
Economists recognized this tension all-along. Hence, the argument for central
bank independence rests on four principles—time inconsistency, technocratic legiti-
macy, epistemic community, and distributive ambiguity—that should effectively
mute the political salience of monetary policy making. These principles insulate
central bank independence from politics by lengthening the time horizon for evalu-
ating the effectiveness of monetary policy actions, by cloaking the machinery for
monetary policy in technical language and complicated modeling, by avoiding divi-
sive conflicts over policy decisions, and by relying on the fact that most people can-
not connect the movement of monetary policy instruments to their personal financial
situation or business prospects. To see how this works, it is worth illustrating these
foundations from the ECB perspective.
The time inconsistency argument is that politicians should forego short-term
control over monetary policy in order to achieve the longer-term gains from the
management of market expectations. That is why the ECB’s official definition of

4
See Heather Stewart, ‘”End ECB Dick-Tatorship”: Woman Disrupts Draghi Speech, Throws Paper at
Officials,’ The Guardian (15 April 2015).
5
Here it is important to distinguish between levels of analysis and hence also between distributive ambi-
guity and macroeconomic neutrality in the conduct of monetary policy. In macroeconomic theory, the
argument for central bank independence rests on the idea that monetary policy is neutral over the long
run, because growth is a function of technological change and factor endowments. That macroeconomic
neutrality tells us very little, however, about what happens to individuals, either in relative or in abso-
lute terms. No change in policy instruments is neutral across individuals, because any change affects
relative prices. Hence the question is whether individuals can identify the influence of that change on
their relative position either at a given point in time or over time. Where individuals are systematically
disadvantaged by the conduct of monetary policy, they have a right to complain—even if the long-run
effects of the policy are neutral in terms of macroeconomic performance. Hence a second condition for
political independence is that any distributive consequences are ambiguous and so essentially impossible
for individuals to trace back either to individual policy decisions or to the monetary policy framework. If
those implications are transparent and can be traced back to the policy framework, then there is a reason
to assume that citizens will ‘politicize’ the delegation of responsibility for monetary policy to central
bankers.

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Do central bankers dream of political union? From epistemic …

price stability does not refer to the actual rate of inflation. Instead, it refers to the
expected rate of inflation over the medium term. This creates four different sorts
of ambiguity for people who might want to assess the ECB’s performance. The
first is that it is unclear how inflation expectations are measured. There are some
standard indicators, but they do not always point in the same direction. It is also
unclear what the ECB means by ‘the medium term.’ The only thing we know for
sure is that the medium term is not the present. Hence it is not only possible but
also common for the ECB to say it is achieving its objective even when the actual
rate of inflation differs from the numerical target for stability—an annual rate of
change below but close to two percent. And, as ECB presidents often point out,
the inflation that matters is for the euro area as a whole and not for any individual
country (region, or city). By implication, the inflation that is important to the
ECB is not the same as the price changes people experience in their daily lives.
The implication of the time inconsistency argument is that monetary policy
makers must be credible both to the voters and to market participants as technical
managers of the monetary economy. The fact that most monetary policy mak-
ers use the same models, speak the same language, and have the same ‘reaction
functions’ enhances that credibility and so improves the trade-off between short-
term cost and long-term gains (Verdun 1999). Hence it is unsurprising that ECB
Executive Board Members are usually drawn from the national central banks and
that the members of the governing council—meaning Executive Board Mem-
bers and participating central bank governors or presidents—all form part of the
global central banking community. The expansion of modern central banking to
the formerly communist countries of central and Eastern Europe is a good illus-
tration (Johnson 2016). It is also unsurprising that most central bankers emerge
either from the world of finance or from the academic community. Both the expe-
rience—and the socialization to comes with it—is where they get their authority.
Of course, people could still demand that central bankers be accountable
to politicians (Elgie 2002). Hence it is important that the distributive conse-
quences of typical monetary policy actions are difficult to anticipate ex ante and
to attribute ex post. People do complain to central bankers about both inflation
and unemployment. But these are complaints in principle—someone has to be
held to account for the performance of macroeconomic aggregates, and the more
the merrier from the perspective of an angry public—but not in practice. Few
people actually know what macroeconomic aggregates are doing and even fewer
can point unambiguously and confidently to a monetary policy action that they
believe would have made a difference (Blendon et al. 1997). Since most policy
changes involve a 25-basis-point (or one-quarter of one percent) movement either
up or down in the main policy rates, it is not surprising that people cannot draw
an easy straight-line connection from a policy change to their own pocket books
or employment prospects. The problem is not just that most people are creditors
(think pension savings) and debtors (think mortgages) at the same time, but it is

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 E. Jones

also that the policy change has to be transmitted from money markets to interbank
markets and through the banking system to have an impact.6
The major hole in the system lies in economic geography and the uneven per-
formance of the monetary transmission mechanism from one place to the next. The
implications of changes in monetary policy rates are not everywhere the same and
some regions within any monetary union are more immediately and profoundly
influenced than others as a consequence. Soon after the Bank of England was made
independent, for example, a reporter asked the bank’s governor, Eddie George, if his
monetary policy caused unemployment in the North to calm inflation in the South;
without hesitating, he answered that it did.7 Successive ECB presidents have often
found themselves in a similar situation, making similarly awkward admissions. Most
of these issues can be addressed by fiscal authorities at the national, regional, or
local levels. Nevertheless, central bankers are not completely insulated from politi-
cal interference. The point is that these are the conditions under which the political
insulation for central bank independence is as good as it gets.8
Alas, these principles (again, time inconsistency, technocratic legitimacy, epis-
temic community, and distributive ambiguity) only hold when the economy is oper-
ating normally and when central bankers can focus on using small changes in policy
rates to fine-tune macroeconomic performance. The principles start to break down
when the economy behaves unpredictably—which is to say, outside the expecta-
tions built into the standard macroeconomic models. It is one thing for people to
ignore monetary policymaking when central bankers look like they know what they
are doing and quite another to ignore them when they look like they are fumbling
around. This is not a normative concern; it is a matter of expectations in the mar-
ketplace. The danger is that expectations will become unmoored once market par-
ticipants cease to have a clear view what to expect from monetary policy. Monetary
policy looses effectiveness in such a context. Worse, the longer central bankers have
to respond to unexpected and unpredictable economic performance, the more likely
they are to run out of room for maneuver in the use of conventional instruments for
monetary policy. Among central bankers, this problem is referred to as the ‘zero
lower bound.’ As they approach that threshold, central bankers start to do things
that they describe as ‘unconventional’ because they are less well understood. Again,
the effectiveness of monetary policy diminishes as uncertainty increases about how
much monetary policymakers can accomplish.
This breakdown in the distributive ambiguity of monetary policy changes is
important both in the narrow sense that it undermines the technical argument for
central bank independence and in the broader sense that it undermines the political

6
See Mario Draghi’s speech to the annual meeting of central bankers at Sintra, Portugal, on 27 June
2017.
7
‘Governor Tries to Douse North’s Fire,’ BBC News (22 October 1998).
8
The argument for central bank independence is orthogonal in many ways to the debate about optimum
currency areas—if only because optimum currency areas do not exist in the real world and yet independ-
ent central banks do. That is why the argument for central bank independence has to be qualified for the
implications of economic geography, not just for the ECB, but everywhere that regional disparities exist
within a monetary union.

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Do central bankers dream of political union? From epistemic …

independence of central banking as a shared value. The technical issues may be sim-
ply an engineering problem; the design of better institutions could make them go
away. If the shared value of central bank independence breaks down—or worse, if
the value of central bank independence becomes contested across countries—then
the successful construction of a European identity comes into jeopardy. Unfortu-
nately, the experience of the recent economic and financial crisis suggests that the
problems the ECB is facing are more than just technical, they are identity related. To
explain why, it is necessary to start with the technical considerations and then bring
the identity politics back into play.

Unconventional monetary policy

The use of unconventional monetary policy instruments challenges all four of the
principles that insulate central bank independence from day-to-day politics. It oper-
ates on the wrong time horizon insofar as it offers short-term relief in exchange for
longer-term costs. It is experimental in the sense that it has not been done before and
so is not part of the standard models. It is controversial within the central banking
community, where there are sharp disagreements about both short-term effective-
ness and longer-term implications. Worst of all, unconventional monetary policy
instruments are almost inherently political in that the winners and losers are obvi-
ous, at least in terms of first-order conditions. If the traditional argument for central
bank independence tends to lower the political salience of monetary policymaking,
the use of unconventional monetary policy instruments has the opposite effect.
To see why this is so, it is worth exploring five sets of instruments: the rules
that govern the collateral pledged by financial institutions that want access to cen-
tral bank liquidity, direct intervention to stabilize securities markets, long-term refi-
nancing operations, negative deposit rates, and large-scale asset purchases. These
instruments are not part of the normal toolkit that central banks use to manage eco-
nomic performance. When things start to go wrong, however, they quickly become
important.
The collateral rules normally function to prevent the central bank from taking
unnecessary risk onto its balance sheet. Banks that want to borrow from the cen-
tral bank should pledge only very high-quality assets as a guarantee of repayment.
There are nevertheless situations where the central bank might want to relax these
quality restrictions to prevent the banks from losing access to liquidity. One of
these moments arose in September 2008 when Lehman Brothers collapsed and
banks suddenly stopped lending to one-another; another such moment occurred
in May 2010 when the Greek government asked for a bailout. In both cases, the
ECB relaxed its rules to ensure that stricken banks maintained access to liquidity.
In the short term, that policy response helped to stabilize financial markets and
so also to protect the monetary transmission mechanism. Over the longer term,
however, lax collateral rules brought increasing volumes of risky assets onto the
ECB’s balance sheet. The fact of making exceptions to the rules also raised awk-
ward questions about how long certain institutions or countries would get special

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 E. Jones

treatment, whether and for whom the exceptions would be repeated, and who
would have to bear the cost of covering any losses that arose from the policy.
The decision of the ECB to intervene directly in key securities markets posed
a similar array of problems. The initial justification for the policy as initiated in
May 2010 was to ensure that markets remained liquid so that investors would
not panic. Here again, the concern was that a market collapse would disrupt the
monetary transmission mechanism since many of the assets the ECB supported
were routinely held by financial institutions for use as collateral in routine treas-
ury operations. Questions about who would bear the risk of ECB exposure and
who would benefit from the conduct of the policy arose almost immediately and
divided Europe’s top central bankers. Bundesbank president Axel Weber with-
drew his candidacy to be ECB President in protest over the policy, and Jürgen
Stark resigned his position as ECB Executive Board Member. The policy was
also controversial because of the leverage it gave the ECB’s Governing Council
over the policies of national governments. In August 2011, for example, Jean-
Claude Trichet co-signed letters with the central bank governors of Spain and
Italy to the prime ministers of both countries. The letters made it clear that ECB
support through the ‘securities markets program’ would only be forthcoming if
the governments adopted a detailed reform agenda. When knowledge of these let-
ters leaked to the press, the result was a political scandal.
The introduction of long-term refinancing operations in December 2011 and
February 2012 was also problematic. Initially, these operations offered unlimited
access to 3-year loans at very low interest rates for banks that had sufficient col-
lateral. The ostensible goal was to provide banks with funds to lend on to industry
and so jump-start the economy. The actual effect was to tighten the connection
between peripheral banks and their national governments—because the banks
used existing holdings of domestic sovereign debt as collateral to borrow central
bank money with which they could purchase more domestic sovereign debt to
pledge against additional borrowing. In the short term, this helped to stabilize
peripheral sovereign debt markets; in the longer term, it meant that the solvency
of the domestic banks depended upon the solvency of their home governments.
Once again, controversy erupted in the Governing Council over who should be
responsible for absorbing the risks created by the policy.
The story about negative deposit rates and large-scale asset purchases follows
a similar pattern. The goal of the policy is to stimulate macroeconomic perfor-
mance. The impact is to create inequitable and growing distortions. Negative
deposit rates (and other forms of ultra-low interest rates) eat into the earnings of
insurance companies and pension funds that need secure long-term assets in order
to meet equally long-term liabilities. Large-scale asset purchases not only exacer-
bate this problem but also begin to create shortages for collateral used in treasury
operations and to underpin interbank markets. Finally, large-scale asset purchases
force central bankers to choose which assets to acquire and in what volume. They
also have to decide, again, who will be responsible for absorbing any losses—par-
ticularly when the assets are purchased at a price above what the bonds would be
worth at maturity. These decisions all have transparent distributive implications
for the people who sell to the bank, for the people who hold onto their positions,

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Do central bankers dream of political union? From epistemic …

and for the tax payers who worry about recapitalizing their central banks once the
purchases are unwound.
Each of the main instruments for unconventional monetary policy causes prob-
lems. However, doing nothing is not an option. This is the point Mario Draghi made
in two prominent speeches for different audiences. One speech was to the finance
community and took place in London in July 2012;9 the other was to the central
banking community and took place at the Jackson Hole conference in August
2014.10 In the first speech, Draghi admitted that the monetary transmission mecha-
nism is broken; at the second he cautioned that the ECB risked losing control over
expectations for price inflation. So long as the monetary transmission mechanism
is broken, the ECB cannot steer the economy with conventional monetary policy
instruments. That is why Draghi pledged to do whatever it takes to safeguard the
euro. That pledge is essential to the ECB’s conduct of monetary policy. So is ECB
influence over market expectations. Hence when Draghi pointed to the risk that
inflation expectations would depart from the ECB’s definition of price stability,
what he was really establishing was that the ECB was running out of time to act.
Using unconventional monetary policy instruments was the least dangerous option.
It exposed the ECB to political scrutiny but that loss of insulation was a price worth
paying if that would return economic performance to normal.
Already by the summer of 2012, it was fair to question whether the single cur-
rency was a symbol of shared values or an impending source of political conflict.
Soon after Draghi made his commitment to do ‘whatever it takes,’ he was forced to
admit that there was an open division on the Governing Council with the President
of the German Bundesbank. This was the first time in the history of the institution
that any President of the ECB had called out the opposition to his policy by name.
Moreover, the fact that the policy appeared to restore confidence in the markets did
little to calm the turmoil. On the contrary, the political divisions lingered and the
task facing the ECB had already become more complicated.

Financial market supervision

Unfortunately for central bankers, unconventional monetary policies cannot repair

a broken monetary transmission mechanism. Such policies can create liquidity, and
they can influence the price of credit, but they cannot force financial institutions in
any one part of the monetary union to do business with financial institutions else-
where. By implication, unconventional monetary policies cannot ensure that finan-
cial conditions are everywhere the same or even somehow interconnected. This
explains why central bankers pay such close attention to financial stability both in
terms of individual institutions (micro-prudential supervision) and in terms of the
wider marketplace (macro-prudential supervision). When it was founded in 1998,

9
See Mario Draghi’s speech to the Global Investment Conference in London on 26 July 2012.
10
See Mario Draghi’s speech to the annual central banking symposium at Jackson Hole on 22 August
2014.

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 E. Jones

the European Central Bank sought to avoid this responsibility, leaving responsibility
for prudential supervision to the relevant national authorities. During the crisis, the
ECB changed take and began asserting its supervisory authority. In terms of politi-
cal insulation, however, this only made matters worse.
The ECB’s evolution as a financial supervisor can be mapped through five
national cases—Ireland, Spain, Cyprus, Greece, and Italy. At each stage, European
central bankers faced judgement calls that created winners and losers both within
and across countries. With each decision, those who lost out from the policy had
an easy time tracing responsibility back to decisions taken inside the ECB. Worse,
as European central bankers adapted their views to the changing circumstances of
the crisis, they created an appearance of inconsistency that could be characterized
as either arbitrary or biased. Hence, while it is possible to argue with the benefit of
hindsight that central bankers managed to save the European financial system, it is
easy to see how the ECB built up a record of political resentment along the way.
Again, it is worth underscoring that such resentment is not a technical problem
or simply a matter of distributive politics (that could be relieved through offsetting
transfers); rather it is a problem of constitutive politics. Europeans find it hard to
share the value of central bank independence when the central bank in question
seems to behave in an arbitrary or biased manner. It is easier in that context for
Europeans to regard themselves as Irish, Italians or Germans, and to view the ECB
as a foreign entity rather than as a source of common identity.
The Irish case came at the start of the crisis as central bankers sought to prevent
the shockwaves that originated in the collapse of American subprime mortgage mar-
kets from propagating across the European marketplace. The Irish banks were at the
leading edge (Lynch 2010; Sharma 2011). They were exposed to losses from invest-
ments in the USA but also reliant on investments from other European banks—in
the form of money market loans, deposits, and bond holdings—as their source of
funding. This kind of balance sheet exposure was not unique to Ireland, but the
vulnerability of the Irish banks to losses both of assets and of funding sources was
extreme. Moreover, the European Central Bank worried that treatment of the Irish
banks would set a pattern that investors would expect to be followed in other mar-
kets. Hence the ECB made two determinations:

• First, bond holders and large depositors could not be made to share in the burden
of covering the losses made by the Irish banks. The Irish government (and hence
the Irish taxpayers) would have to cover those losses themselves so that the bond
holders could be made ‘whole.’ This lack of burden sharing was to prevent the
threat of contagion that would arise if investors refused to purchase bank bonds
elsewhere in Europe, which would deprive other European banks of a critical
source of funds and so probably lead to their collapse.
• Second, the Irish government could not try to ignore the country’s banking cri-
sis by having the Central Bank of Ireland keep institutions afloat through the
provision of unlimited emergency liquidity assistance. By restricting the sup-
ply of emergency liquidity assistance, the ECB not only sought to force the Irish
government to confront its banking problem, but also to prevent the creation of
excess liquidity that might be a problem for price stability at some point in the

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Do central bankers dream of political union? From epistemic …

future. The ECB also sought to ensure that the Central Bank of Ireland did not
take on too much risk in the form of distressed assets used as collateral.

These two decisions together are what forced the Irish government to wrestle
with its banking problem in the period from 2008 to 2010. Toward the end of that
period, the Irish government had to request a humiliating bailout from its European
partners. The ECB did not create the Irish banking crisis, and it could not have pre-
vented that crisis from resulting in widespread losses. But it did influence when
those losses were experienced and how the burdens were distributed. The result is a
lasting legacy of resentment in Ireland for what many perceive to be interference by
central bankers in what they believe should have been a more open and transparent
political process.
Moreover, Ireland’s treatment did not prevent the crisis from spreading. That is
why the next illustration focuses on the Spanish banks (Royo 2013a, b). The larger,
more international Spanish banks were not badly hit by the crisis. The smaller, more
parochial banks were nevertheless severely damaged. The Spanish government
responded by pushing these smaller banks into a succession of successful mergers.
The result was to create a giant Spanish banking institution—called Bankia—that
was essentially insolvent. Worse, the Spanish government could not afford to bail-
out this institution without threatening its own creditworthiness in the bond markets.
What the Spanish government needed was some kind of direct recapitalization using
European resources.
The ECB’s involvement in this context unfolded in two stages. To begin with,
the ECB agreed to embrace its role as single supervisor for the European financial
system in exchange for a commitment that European resources for the direct recapi-
talization of failing financial institutions would follow. In this way, the ECB sought
to shore up confidence in European financial institutions while at the same time sev-
ering the link between financial stability and sovereign finances. That commitment
proved insufficient to hold off pressure in the bond markets. As a result, ECB Presi-
dent Mario Draghi took the unprecedented step of committing to do ‘whatever it
takes’ to stabilize sovereign debt markets for those countries that request assistance
and are willing to accept European supervision. He made this commitment at the
speech in London cited earlier. Together the decision to act as single supervisor and
the determination to do whatever it takes to stabilize sovereign debt markets suc-
ceeded in restoring market confidence.
Nevertheless, the twin comments made by the ECB during the time of the Span-
ish banking crisis also created the impression among the Germans and other north-
ern Europeans that governments in distress would not be held accountable for their
actions; the German Bundesbank even went so far as to file an amicus brief to sup-
port complaints made to the country’s constitutional court that the European Central
Bank had exceeded its mandate. Meanwhile, many southern Europeans noted that
the direct recapitalization of banks was not forthcoming—and neither were other
forms of burden sharing typically associated with ‘banking unions’ like the one
implied by the creation of a single supervisory mechanism. By implication, they got
European supervision without European solidarity. Once again, this gave rise to last-
ing resentments implicating the European Central Bank.

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 E. Jones

The Cypriot crisis followed soon after the turmoil around the Spanish banking
system subsided (Demetriades 2017). At the time, Cyprus had a small number of
very large banks relative to the rest of the Cypriot economy. Unlike in the Irish case,
however, these banks were not exposed to US asset markets and neither did they
rely excessively on other banks for funding. Instead, the Cypriot banks invested in
European assets and they relied almost exclusively on deposits. This made them
very conservative in structure compared to their more adventurous Irish counter-
parts. Unfortunately, many of the assets were Greek government bonds that were
wiped out during the March 2012 restructuring and many of the deposits came from
Russian oligarchs and other morally dubious international investors. The Cypriot
government could not afford to recapitalize the banks with its own resources, and
it did not want to impose losses on bank depositors who might take their business
elsewhere. Hence, it tried to ignore the crisis in its financial institutions by relying
on the Central Bank of Cyprus to keep the institutions afloat with emergency liquid-
ity assistance.
The position of the European Central Bank on Cyprus was similar to its posi-
tion on Ireland but also different. The ECB did not want the Cypriot banks to linger
on emergency liquidity assistance. Although the additional liquidity created by the
Central Bank of Cyprus could not undermine price stability for the euro area as a
whole, the precedent it set was dangerous: The large Cypriot banks were essentially
insolvent and national central banks should not be propping up insolvent institu-
tions. In contrast to the Irish situation, however, the ECB was unafraid of encourag-
ing burden sharing. The risk that whatever happened in Cyprus would threaten the
funding models for other European financial institutions was low, particularly given
the unique (and uniquely unsavory) source of much of the Cypriot banks’ depos-
its. The Cypriot government complained that any burden sharing would crush their
financial services industry, particularly if it relied solely on contributions from large
depositors. Hence the government suggested a formula for distributing losses that
would implicate small depositors that would otherwise be covered by deposit insur-
ance. Surprisingly, the ECB agreed.
The resolution of the Cypriot banking crisis almost failed spectacularly. The
Cypriot parliament rejected the burden sharing formula suggested by the ECB and
complained bitterly about the decision to cut off emergency liquidity assistance. In
the meantime, the government could only shore up the banks by imposing capital
controls to prevent the flight of deposits. Quickly, however, the Cypriot government
regained control and worked out a new formula for burden sharing that the parlia-
ment would accept. Once again, the European Central Bank looked the villain—for
precipitating the crisis and for interfering where its advice was not needed. More
important, perhaps, some of the northern European leaders used the case of Cyprus
to push back against the decisions made by the ECB in the context of Spain. For
example, the Dutch Finance Minister and Euro Group President Jeroen Dijsselbloem
argued that Cyprus should be the model for future banking resolution through bur-
den sharing; the goal, he insisted, is to avoid any direct recapitalization of banks
using European resources. Dijsselbloem later retracted that statement, at least par-
tially, and yet the impression that the peripheral countries of Europe would get
supervision without solidarity was reinforced along the way. Again, the ECB was

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Do central bankers dream of political union? From epistemic …

implicated—by Dijsselbloem and others for pushing back against burden sharing
and by the peripheral countries for not doing enough to promote risk-sharing in the
interests of financial stability.
The Greek case followed two years later after the election of a Syriza-led govern-
ment on an anti-austerity platform (Varoufakis 2017). This case again focuses on
the use of emergency liquidity assistance, this time by the Central Bank of Greece.
However, the problems did not originate in the banking system. Instead, they arose
from a decision taken by the European Central Bank with regard to Greek sovereign
debt instruments. Typically, banks use sovereign debt as collateral to borrow money
from central banks. Greek banks are no different. The challenge for the Greek banks
was that the collateral they held consisted primarily of Greek sovereign debt. This
issue arose already during the March 2012 Greek sovereign debt restructuring,
when the European Central Bank had to provide new collateral to the Greek banks
to replace the Greek government bonds that were declared insolvent (which is what
precipitated the banking crisis in Cyprus—because the Cypriot holdings of Greek
sovereign debt were not replaced). After the restructuring, the Greek banks could
use new Greek sovereign debt instruments to meet their collateral requirements.
Moreover, the European Central Bank provided a special waiver to overcome the
minimum credit requirements. So long as the Greek government remained under
supervision within a fiscal consolidation program, Greek banks could use Greek
government bonds to borrow money from the Central Bank of Greece in a normal
fashion.
With the formation of a Syriza-led government, however, the European Central
Bank lost confidence that Greece would remain under supervision as part of a fis-
cal consolidation program. Therefore, in early February 2015, the ECB withdrew
the waiver that made Greek government bonds eligible for use as collateral in rou-
tine liquidity operations with the Central Bank of Greece. By implication, the Greek
banks had to use the same Greek government bonds to obtain more expensive emer-
gency liquidity assistance. This not only cut deeply into the profitability of the banks
but also sent a powerful signal into the marketplace that the Greek banks were not
safe. Given what happened in Cyprus, it is unsurprising that deposits quickly left the
Greek banking system and the Greek banks found themselves strapped of funding.
The question became one of not whether the European Central Bank would cut off
emergency liquidity assistance to the Greek financial system, but when. The answer
was revealed in the dramatic confrontation between the Syriza-led government and
the rest of the Euro area. As with Cyrpus, the crisis was resolved and yet did lasting
damage to the reputation of the ECB which has been characterized by many of those
who lost out in the exchange—like the outgoing Greek finance minister, Yannis Var-
oufakis—as both arbitrary and biased for the role that it played.
The final illustration focuses on Italy and the series of banking resolution epi-
sodes it undertook between December 2015 and June 2017. By this time, the Euro-
pean Union had a new banking resolution framework—called the banking recovery
and resolution directive (BRRD)—that eliminated and re-structured much of the
discretion available to the ECB. For example, the BRRD provides a clear framework
for burden sharing among the creditors of a stricken bank; it outlines well-defined
steps for determining whether a bank can be recapitalized in a precautionary manner,

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 E. Jones

whether it has to go through a structure resolution within the European framework,

and whether it can be liquidated under national legislation. The ECB plays a role in
influencing which of these options is available in its role as single supervisor—pri-
marily by identifying shortfalls in regulatory capital, checking whether a bank has a
realistic plan to return to profitability, and assessing whether the institution is sys-
temically important for the euro area as a whole.
Alas, even this limited discretion was enough to get the ECB into political contro-
versy. The ECB was criticized for the slowness with which it recognized the fragil-
ity of the Italian financial institutions; for its willingness to support a precautionary
recapitalization of Monte die Paschi di Siena; and for its determination that Banca
Veneto and Banca Popolare di Vicenza were eligible for liquidation under Italian
legislation. The ECB could share this criticism with other institutions. The Euro-
pean Commission’s competition authorities also played a role, as did the Eurogroup
of economics and finance ministers. Such institutional companionship did not insu-
late the ECB from criticism for the decisions it made.
Popular support for European integration also faltered. Where once Italians had
been among the most enthusiastic supporters of the European project, that support
has diminished significantly.11 Italians’ sense of isolation in facing migration across
the Mediterranean was a major source of disillusionment; frustration European
interference in the banking sector came a close second; more generalized frustration
with the euro was not far behind. The obvious distributive implications of the ECB’s
actions were not just a political problem in the technical sense, but they were also
fracturing Italians’ sense of European identity.

Responsibility and accountability

The European Central Bank may be politically independent in a constitutive sense

and yet it is also inherently political in a distributive sense. That distributive charac-
ter is not evident in normal times; it is hard if not impossible to avoid in times of cri-
sis. Europe’s central bankers cannot retreat from the use of unconventional monetary
policy instruments when they are operating close to the zero lower bound or when
the monetary policy transmission mechanism is broken. And they cannot return the
economy to normal monetary conditions without first restoring confidence in the
financial system. In turn, this requires central bankers to play an active role in under-
pinning financial stability—both with respect to asset markets and in terms of over-
seeing European banks.
These inherently political responsibilities chip away at the legitimacy of central
bank independence and so force central bankers to make a choice. One option is to
get national politicians to accept responsibility for the constraints on central banking
(Tucker 2018). If politicians would do more of the heavy lifting in terms of stimulat-
ing macroeconomic performance (either through structural reforms or through fiscal
policy), then central bankers could go back to fine-tuning. And if politicians would

11
These statistics can be found across standard editions of the Eurobarometer surveys.

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Do central bankers dream of political union? From epistemic …

act decisively to make the difficult financial policy decisions, primarily by cleaning
up their banking systems in a timely manner rather than drawing out resolution and
recovery processes until they become too expensive to manage, then central bankers
could focus more narrowly on enforcing their mandate.
The European Central Bank has made a mantra of these requirements. The
two final paragraphs of the opening statement at every ECB press conference are
devoted to ways that the member state governments can lift the constraints on mon-
etary policymakers by shouldering more of the burden in improving macroeconomic
performance. The ECB has also worked more directly. Here too the letters sent by
Jean-Claude Trichet and the national bank presidents of Spain and Italy to the gov-
ernments of those countries in August 2011 are illustrative. Almost nowhere, how-
ever, has this kind of central bank intervention been a success. The Italian govern-
ment tried and failed to live up to the conditions that the ECB set for assistance;
successive Spanish governments succeeded for a short time only to fall prey to the
growing weakness of the banking system and to the perverse symbiosis between
financial fragility and sovereign creditworthiness (Royo 2013a). In turn, Spain’s near
collapse prompted Draghi to revise Trichet’s offer with the promise to do ‘what-
ever it takes.’ That promise included conditionality that many assumed the Spanish
government would have to accept; Spanish prime minister Mariano Rajoy narrowly
avoided that fate.
The reason governments cannot do more of the heavy lifting on the fiscal side
is more structural than attitudinal. The problem is not that national politicians fail
to see the logic of what the ECB is asking; rather it is that they face two different
dilemmas. The first is a collective action problem. The governments that have the
capacity to stimulate macroeconomic performance do not need it and the govern-
ments that need macroeconomic stimulus do not have the capacity to create it. These
two groups are more likely to polarize any conversation about macroeconomic gov-
ernance than to work together to achieve some kind of synthesis.
The second dilemma is a kind of ecological fallacy. The rules that are good for
financial stability across an integrated European marketplace are not good for stabil-
ity at the national level. The Fortis case is revealing here. Although joint resolution
of multinational banks is important as an aspiration, national governments are all
too quick to ring-fence their citizens in the event of a major failure (Kudrna 2012).
Similarly, the rules that are good for stability at the national level are not good for
European financial market integration (or the smooth functioning of the monetary
transmission mechanism). Hence, ECB Executive Board Members have spoken out
repeatedly against the insistence of national bank regulators on having the banks
under their supervision match assets and liabilities locally.12 Nevertheless, so long
as politicians are politically accountable at the national level, they are not going
to accept responsibility for restoring normal monetary conditions at the European
level.
Trying to create a shared macroeconomic policy framework or a common cul-
ture of financial stability is unlikely to resolve either of these dilemmas. Even

12
See, for example, Peter Praet’s speech to the SUERF conference in New York on 20 September 2018.

85 Reprinted from the journal

 E. Jones

policymakers who accept the same general macroeconomic commitments are going
to express different preferences at different points in the business cycle. Therefore,
unless it is possible to underpin common macroeconomic guidelines with common
performance, any consensus is likely to shatter at the first sign of significant diver-
gence from one member state to the next. That is the lesson from the early 2000s; it
is a lesson being reiterated now by the Italian government. A common financial sta-
bility culture is also likely to prove fragile. The reason can be found in Hyman Min-
sky’s financial instability hypothesis among financial market participants and among
regulators in the recurrent belief that ‘this time is different.’
Hence the second option available to European central bankers is to push for the
creation of a European political authority that operates at the same level of aggre-
gation as the monetary union. In turn, that authority can assume responsibility for
the decision to conduct unconventional monetary policies or for the elaboration of
alternative fiscal arrangements. That authority can assume responsibility for the
unpleasant side of financial market supervision as well. Moreover, while that author-
ity is held to account for its actions, the ECB can preserve its political independ-
ence. Where once the ECB symbolized the values that Europeans shared in terms of
their commitment to central bank independence and, more broadly, to the European
project, now the ECB relies on external sources of European identity to shore up
commitment to its unique institutional arrangement. Indeed, populist political move-
ments like the Alternative for Germany, the Italian Northern League (now called
Lega), and the French National Front (now called Rassemblement National) use
their opposition to the ECB and to the euro as a common currency as a means of
burnishing their nationalist appeal. The ECB remains a source of identification, but
its role has become negative rather than positive from a European perspective.

A strategically constructivist solution

The only way to restore the ECB’s positive role in terms of European identity for-
mation (and hence constitutive politics) is to lower the prominence of the ECB as
a focal point for crisis management and macroeconomic policymaking (and hence
distributive politics). What the European central bankers have learned during the
recent crisis, alas, is that shifting responsibility back onto national politicians is
not possible and yet making politicians accountable at the European level is also
not an easy task. Europeanizing macroeconomic policymaking requires institutions
for deliberation, rule-making, justification, implementation, and revision. In other
words, central banks can only find adequate insulation once they are embedded in
a comprehensive political system (McNamara 2015; Matthijs and Blyth 2015). By
implication, the ECB feels the need for some kind of political union now more than
ever. Where once it might have been enough for ECB presidents to make a point of
testifying before the European Parliament, now they feel greater need to seek a more
comprehensive form of engagement.
This requirement for political union puts European central bankers in a strange
position. In order to preserve their political independence, they have to convince
everyone else to make radical changes in the way they do politics. The ECB has

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Do central bankers dream of political union? From epistemic …

made a series of tentative forays into this domain by signing onto the various ‘Presi-
dents Reports’ for the completion of Europe’s economic and monetary union. These
reports outline steps to improve both the architecture for policymaking and financial
markets and the patterns for democratic representation and accountability. Implic-
itly, the ECB (together with the other institutional ‘presidents’) is replacing a con-
stitutive politics of identity formation around common values with a more formal
constitutional politics through institution building. This shift to institution building
does not mean central bankers have stopped worrying about identity politics. On the
contrary, it means they are relying on institutional projects to foster and strengthen
a European identity—as the strategic constructivists would suggest. Moreover, they
are doing this with an explicit strategic objective. Central bankers are dreaming of
political union so that they can go back to being central bankers and so get out of the
business of politics.

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Publisher’s Note Springer Nature remains neutral with regard to jurisdictional claims in published
maps and institutional affiliations.

Erik Jones is Professor of European Studies and International Political Economy and Director of Euro-
pean and Eurasian Studies at the Johns Hopkins School of Advanced International Studies and Senior
Associate at the Istituto degli studi di politica internazionale (ISPI) (Italy).

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Comparative European Politics (2019) 17:548–566
https://doi.org/10.1057/s41295-019-00178-1

ORIGINAL ARTICLE

The EU’s legal identities and the Court of Justice of the EU

Sabine Saurugger1 · Fabien Terpan2

Published online: 29 March 2019

© Springer Nature Limited 2019

Abstract
This paper aims to analyse whether ‘economic integration through law’ still is one
of the EU’s central identities. From the 1960s to the Maastricht Treaty of 1992, the
Court of Justice of the European Union (CJEU) was considered to be one of the
main actors creating rulings that allowed establishing a regulated single market.
Since the 1990s, however, the Court’s contribution to this legal identity has been
questioned, based on structural and policy-related factors. Structural factors refer to
the Court’s perceived caution in its rulings; policy-related elements point to the idea
that the Court’s rulings are considered to contribute not only to a pro-market identity
of the EU, but to increasingly create a multifaceted identity, including the protection
of human and social rights. The aim of this article is to analyse this alleged trans-
formation through a study of the most salient decisions of the CJEU before and after
the Maastricht Treaty in specific policy areas: the common market, social, health
and human rights, EMU and economic governance. This selection of policy areas
allows us to analyse whether the Court has indeed created an understanding of inte-
gration through law exclusively based on economic rights or whether the content of
integration through law is also based on a more general understanding of the con-
stitutionalisation of European integration beyond the establishment of a common
market.

Keywords Court of Justice of the European Union · Identity · Case law · European
integration

* Sabine Saurugger
[email protected]
1
Univ. Grenoble Alpes, Sciences Po Grenoble, Pacte, Grenoble 38000, France
2
Univ. Grenoble Alpes, Sciences Po Grenoble, CESICE, Jean Monnet Chair, Grenoble 38000,
France

89 Reprinted from the journal

 S. Saurugger, F. Terpan

Introduction

Is the Court of Justice of the European Union (CJEU) still fostering ‘integration
through law’, and more precisely a market-oriented version of European integra-
tion? Is it, on the contrary, less actively pushing for supranational integration, and
more and more inclined to go beyond market orientation in its rulings since the
early 1990s?
These are crucial questions when analysing the EU’s identity and the contribu-
tion of the Court to this identity. In accordance with this special issue’s introduc-
tion, we understand identity in this context as a collective matter, being the self-
understanding of a group of political actors (Abdelal et al. 2006) as expressed
in the institution’s norms, values and aims. This political identity is not static,
but is transformed and contested over time. In other words, political identity in
this article refers to the process of constructing and stabilising political entities
as social facts, giving them a taken-for-granted status in political life. We distin-
guish between identities across areas (horizontal) and within areas (content). In
this article, the CJEU’s identities across areas refer to the broad understanding of
‘integration through law’; identities within areas refer to specific aims of integra-
tion through law—a market identity, a social or a human rights identity that we
can find in the rulings.
Today, the EU is considered as one of the most highly institutionalised supra-
national political systems in the world, a system created, in particular, through
the decisions taken by the CJEU (Stone Sweet and Caporaso 1998; Alter 2001,
2009; Kelemen 2011). As Kathleen McNamara pointed out, the CJEU has cre-
ated a ‘banal authority’ in the EU’s political system (McNamara 2015: 3) and
has highly contributed to the creation of the EU’s legal identity. The latter has
long been perceived as a process of economic integration through law, defined
as a pro-integration orientation and a market orientation of the Court’s case law.
This would confirm the assumption presented by Saurugger and Thatcher (2019)
in this special issue’s introduction, according to which EU organisations have a
greater capacity to construct an identity in domains that are more supranational.
However, since the 1990s, structural elements—more specifically the end of
the permissive consensus, defined as the end of the rather loose and passive sup-
port of European citizens for the continued widening and deepening of the Euro-
pean integration process—have put pressure on supranational institutions, and in
particular, the CJEU. As underlined in the introduction of this special issue, a
higher degree of public scrutiny in recent years appears to have led the Court to
exert a certain degree of caution in its rulings and hence a lesser role in elaborat-
ing the specific horizontal European identity of ‘integration through law’. Inter-
governmental decision-making procedures seem to have diminished the Court’s
influence even further (Fabbrini 2014, 2019; Granger 2015).
This goes hand in hand with a debate on policy or content-related factors influ-
encing the Court’s legal identities. While a first group of scholars has developed
an understanding of ‘integration through law’ as exclusively based on economic
rights (Jacquot 2015; Scharpf 2008, 2013, 2016; Kaupa 2013; Garben 2017;

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Schmidt 2018; Schenk and Schmidt 2018), another group has equally argued that
the CJEU has broadened its spectrum, going beyond the defence of the common
market and including social, civic and human rights (Cichowski 2004, 2007; De
Búrca 2013; Kokott and Sobotta 2012). This illustrates the complexity of the
debate about identity construction (see also Duina and Smith 2019). These con-
troversies point to the possibility of a coexistence (or parallel production) of dif-
ferent legal values (Saurugger and Terpan 2018), due to the enlargement of the
EU’s scope of action, with logical implications for the resulting political identi-
ties. The existence of these different values, and hence the different legal identi-
ties the CJEU has contributed to construct, are based on a series of factors, in
particular the context in which the Court acts, which is as legal as it is political
(Blauberger et al. 2018; Kelemen 2016; Larsson et al. 2017; Pollack 2016), and
the way the Court’s rulings are interpreted. This leads us to the methodological
problem most studies of the CJEU are facing.
Indeed, methodologically speaking, analysing the construction of the legal identity
through the Court is more challenging then analysing those of other institutions with
maybe the exception of the European Central Bank (see Jones 2019). This is linked
to the fact that the CJEU’s rulings are far less self-evident than the decisions of other
European institutions: they are subject to high controversy in the legal doctrine and
cannot be clarified by judges at the CJEU due to an obligation of secrecy. This meth-
odological difficulty leads us to make a number of bold methodological decisions: as
we cannot take the totality of CJEU rulings into account, even when focusing on the
selected policy sectors, we rely on secondary literature for our case selection. The arti-
cle selects the major rulings in specific policy areas under scrutiny, based mainly on
major handbooks, in particular Craig and de Burca’s (2015) EU law handbook, and on
two main journals, a legal one—the European Law Journal—and a political science
one—the Journal of European Public Policy. While this method might induce a bias,
as we depend on previous choices made by scholars, it is in line with the central aim
of this special issue as developed in its introduction: to study the identity construction
through the analysis of actions, discourse and paradigms of European institutions.
The article is structured as follows: a second section presents the EU’s horizontal
identity based on ‘integration through law’. The analysis of scholarly literature shows
that, despite structural challenges, ‘integration through law’, while disputed, has not
entirely lost momentum in recent years. A third section turns to an analysis of the inter-
pretation of Court rulings in specific policy fields. Contrary to the idea of the Court
being exclusively market-oriented, policy-related factors—the enlargement of the EU’s
scope of action—seem to have contributed to an EU vertical identity going beyond the
internal market.

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Legal identity across areas: does the Court still trigger ‘integration
through law’?

What do we understand by ‘integration through law’?

The Court of Justice is considered to have made a significant contribution to

the identity of the European Union through its interpretations of European law.
Research on the CJEU generally underlines the Court’s high degree of influence
from the 1950s until the 1980s in creating ‘integration through law’. While the
Treaty of Rome conceived of the Court’s role as one of interpreting and assessing
the validity of European law, the Court later went beyond these legal bases. When
confronted with decision-making blockades at the Council, in the aftermath of
the Empty Chair crisis (1965–66), the Court compensated for the lack of EU leg-
islation through judicial policy-making. This understanding of the Court, which
was first based on analyses by Stein (1981), Weiler (1981) and Cappelletti et al.
(1986), has been widely shared and further built upon by a number of scholars
who develop a common perception of the Court as a creator of identity and Euro-
pean’s ‘judge-made law’ (among many Slaughter et al. 1998; Stone Sweet and
Caporaso 1998; Stone Sweet 2000; Stone Sweet and Brunell 2004; Alter 1996,
1998, 2007; Alter and Meunier-Aitshalia 1994; Armstrong 1998; Werner 2016;
Vauchez 2008).
From this perspective, the perceived and sometimes automatically assumed
‘neutrality’ of the judiciary was for some time the cornerstone of the CJEU’s
claim to be the sole interpreter of the rule of law. Its inherent legitimacy was not
contested by most scholars working on and developing the reading of the Court’s
contribution to a European identity as ‘integration through law’. From the mid-
1980s onwards, however, this understanding of the Court’s contribution started
to be questioned, most prominently by Rasmussen’s study of the Court (Rasmus-
sen 1986), where it was argued that the Court’s authority and legitimacy was in
fact undermined by excessive activism, a perception that was later taken up (Beck
2012; Conway 2014) and discussed (Arnull 2013; Grimmel 2012, 2014a, b) by a
series of legal scholars.
The Court’s cognitive frame, contributing to the creation of a European iden-
tity, might therefore also be understood as the doctrine constructed by the Euro-
pean judges through legal interpretations, and constraining all EU actors, includ-
ing the Court itself (Cohen and Vauchez 2007). Judges, while deciding on a case,
make strategic decisions with regard to the Court’s external political, social and
economic environment (Blauberger et al. 2018). Hence by linking both aspects—
the legal cognitive frame and the strategic position with regard to other actors—
is it possible to understand the Court’s place in the establishment of the EU’s
identity of ‘integration through law’. Pointing at the Court’s propensity to widely
interpret EU norms and ‘make’ law hence allows us to see the Court as a political
actor and a central element in the building of a EU identity.
The EU as ‘integration through law’, while based on the Court’s actions, is,
however, not only dependent upon the interpretation we find in the literature but

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also upon the use that is made of these rulings at the domestic level. Hence, the
construction of a EU’s identity as based on integration through law is not solely
an act of the Court, commented and transformed into legal doctrines, but must be
taken up and ‘lived and applied’ at the domestic level. Governments and domestic
courts need to accept the Court’s rulings in order to make ‘integration through
law’ a taken-for-granted status in political life. While some domestic courts have
been, and still are, sometimes severe critics of a series of CJEU’s rulings (Davies
2012; Wind 2010; Bobek 2008), and national governments have aimed at overrul-
ing the Court’s decisions in several cases (Martinsen 2015a), this resistance is not
generally not interpreted as an overall rejection of the CJEU as such.
Interest groups, companies and NGOs have been equally crucial actors in the
ways in which they have used the Court for their own purposes, and thus contributed
to the formation of the CJEU as a central actor in the EU’s ‘integration through law’
identity. Studying non-state actors’ activities explained why certain CJEU rulings
have been complied with and others rejected—notwithstanding the lack of coercive
means at EU level (Conant 2002; Cichowski 2007; Vanhala 2010). Conant (2001)
and Cichowski (2007) more precisely show that national institutional variations and
their consequences for state–society relations create variable pressures for national
judges to participate in the European legal system. They convincingly argue that the
transnational activity of multiple EU actors, based on interest group action, contrib-
utes to explain the creation of the understanding of European integration as ‘integra-
tion through law’.

The EU’s ‘integration through law’ identity: challenged but resilient

During the 1990s, arguments have emerged in the literature according to which
‘integration through law’ and the CJEU are less central to the integration process
than they used to be from the 1960s to the 1990s. This is based on two factors: first,
confronted with resistance at national level, the rise of euroscepticism and the end of
the permissive consensus, the CJEU would now exert increasing self-restraint when
confronted with opposition from either the largest member state positions (Car-
ruba et al. 2008, 2012; Larsson and Naurin 2016; Larsson et al. 2017) or the pub-
lic opinion more generally (Blauberger et al. 2018). Second, national governments
have chosen to develop new modes of governance, mostly based on soft law, which
escape the judicial control of the Court of Justice. The development of new ways of
functioning such as the Open Method of Coordination and other alternatives to the
Community method would have reduced the role of Court-led legal integration in
the building of the EU’s identity. Parallel to these views challenging the central role
of the Court, however, we find in the literature a different interpretation of legal inte-
gration, stressing the continued contribution of the CJEU to integration through law.
With regard to these two readings of the Court’s contribution to European
integration, several scholars interpret the developments differently. Bold rulings
seem not to have disappeared. An example is the concern voiced by scholars and
the media alike over the Kadi ruling (C-402/05) in 2008 where the Court over-
ruled the judgements of the Court of First Instance (now the General Court) and

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annulled Council Regulation 881/200, which had imposed restrictive measures

against persons and entities associated with Osama bin Laden, the Al-Qaeda net-
work and the Taliban. Instead of accepting the primacy of international law (UN
Security Council sanctions), the CJEU has chosen to control it on the basis of EU
fundamental rights, which has been considered audacious by a number of scholars
(Van den Herik and Schrijver 2008; De Búrca 2010; Saltinyte 2010; Santos Vara
2011; Eckes 2012). Other rulings and opinions, such as the case of Mangold on age
discrimination, or the opinion 2/13 on the accession of the European Union to the
European Convention of Human Rights, have been equally described as being auda-
cious, or even activist (Schiek 2006; Semmelmann 2013; Storgaard 2015; Isiksel
2016). Although it is difficult to measure precisely the proportion of audacious rul-
ings in both periods—before and after the Maastricht treaty—and thus to determine
whether there has been a decrease in activism since the early 1990s, the second-
ary literature stresses the existence of a number of audacious rulings in the recent
period, seemingly sufficient to conclude that the Court is far from systematically
apply self-restraint instead of activism.
Similarly, the impact of new modes of governance and ‘soft law’ have not solely
been interpreted as indication that the CJEU’s contribution to the EU’s ‘integration
through law’ identity has been marginalised, for at least three reasons.
First, several authors argue that soft law is an extremely efficient tool to regulate
European and national public policies, in pointing to the shadow of hierarchy com-
ing from the CJEU. In other words, member states prefer to agree on soft law rules
for which the CJEU has no say, precisely because, if they fail to do so, the CJEU
could issue a ruling that would apply to all member states (Scharpf 1994; Héritier
and Lehmkuhl 2008). Thus, the CJEU would indirectly help to build the EU’s legal
identity by inciting the member states to elaborate rules. Even when the Court trig-
gers ‘integration through soft law’, it is still a form of legal identity building.
Second, some policy domains have evolved from soft law to hard law and, in so
doing, have enlarged the scope of the Court’s control (Terpan 2015). Such is the
case with immigration, asylum and other fields related to the area of liberty, security
and justice, since the Treaty of Amsterdam. Since the Treaty of Lisbon, this has also
been the case with the European Charter of Fundamental Rights, which has become
a legally binding commitment.
Third, law in the form of directives, regulations and decisions, still play a crucial
role. This may be due to the fact that the EU responds to conflict and crisis situations
with further regulatory integration. As Genschel and Jachtenfuchs (2013: 3) under-
line, conflict and crisis situations ‘in turn increase national differences and thus per-
petuates the vicious circle of regulatory integration and increasing salient national
identities’. A number of publications since 2010 even insist on the continued judi-
cialisation of the EU, in an attempt to explain why this process has not stopped
(Maduro and Azoulai 2010; Kelemen 2011; Schmidt 2012, 2018). Two mechanisms
are stressed in this context. The first mechanism is the process of liberalisation and
judicial reregulation, which derives from the creation of the European Single Mar-
ket. By referring cases to the CJEU, new players, such as companies and interest
groups, have, once again, contributed to the reinforcement of the Court influence in
creating a European ‘integration through law’ identity. The second mechanism is the

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EU’s fragmented institutional structure. The fragmentation between the European

and national level, as well as among EU institutions, has generated principal-agent
problems encouraging the establishment of strict, judicially enforceable goals, based
on transparent and accountable procedures. In fragmented systems, policy-makers
have an increasingly difficult job to build the majorities needed to pass their new
legislation (Skowronek 1982; Garrett et al. 1998; Pollack 2003; Jones et al. 2016;
Davies 2004; Kelemen 2011. For an opposing view, see Martinsen (2015a). The
Court’s ‘judge-made law’ created a genuine intra-community solidarity (Vauchez
2008: 135), which turns the Court into the real engine of European integration and
the identity builder of ‘integration through law’.
While from the 1960s to the 1990s a consensus in the literature stressed the con-
tribution of the Court to identity construction of the EU, this consensus has been
replaced by opposing views. In our view, there are sufficient arguments to maintain
the idea of ‘integration through law’ and of the Court’s significant contribution to
the EU’s identity. This contribution might be less central, but it has not disappeared.
We now turn to the question of the content of the Court’s rulings. In other words,
is the CJEU a biased Court in the sense that it would systematically give priority to
the internal market and competition rules over considerations such as human and
social rights? To answer this question, we will study a selection of CJEU’s landmark
rulings in three policy areas.

Legal identity in different policy areas: is the CJEU market oriented?

Beyond the Court’s path breaking and widely known rulings in which it established
the direct effect (van Gend en Loos 26/62) and primacy (Costa vs. Enel 6/64) of
European law, the Court is perceived to have contributed to the integration of a
wide array of policy areas. One main argument in the literature on the Court is that
this pro-integration case law had a purpose, which is building an internal market
based on the free movement of goods, persons, services and capitals (Jacquot 2015;
Scharpf 2009, 2013, 2016; Kaupa 2013; Garben 2017; Schmidt 2018). The pro-mar-
ket bias of the Court is even said to have increased since the early 1990s, due to two
major factors. First, in a period where the Court’s central position in the European
Union is challenged, the Court would more reluctantly engage in new areas of legal
interpretation, restraining itself to more secure (and long-standing) areas such as
fostering the internal market. Second, in a time of multiple crises, the Court would
stick to the member states’ preferences and/or support a market-oriented vision of
the EU consistent with the position held by a majority of states, or by the most pow-
erful ones.
In this section, we show that this understanding is also less consensus-based as it
might seem. A group of legal scholars and political scientists put forward arguments
showing that the Court’s contribution to identity building in the EU is not solely
motivated by economic integration and the building of the internal market. In order
to illustrate this debate, we focus on three policy areas where the Court has widely
ruled and exerted a significant policy-making function. The first one is the field of
free movement of goods and competition law. It directly captures the notion that

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the Court defends market economy. The two other categories go beyond the idea of
economic integration based on free trade and competition. They deal with social and
health policies and the protection of human rights. In these policy areas, we study
to what extent the Court interprets law through the lenses of market integration or
takes also other grounds and dimensions into consideration.

Free movement and the internal market as core notions of EU’s legal identity

The first argument in support of the idea that the Court’s case law is market oriented
is the extent to which the European judges have extended the scope of the four liber-
ties, in particular the free movement of goods, and competition law.
With the free movement of goods, the Treaty on the Functioning of the European
Union (TFEU) prohibits customs duties on imports and exports (tariff barriers),
quantitative restrictions (non-tariff barriers), as well as charges and measures having
an equivalent effect (i.e. protectionism ‘in disguise’). Non-tariff barriers have proven
more difficult to eradicate than tariff barriers, due to the high number of national
rules applying in this field. The Court has interpreted the notion of measures having
equivalent effect to quantitative restrictions in an extensive manner so as to foster
market integration (Dassonville 8/74). Later, in the case of Cassis de Dijon (120/78),
the Court stated that, aside from a limited number of derogations, there is no valid
reason why ‘provided that goods have been lawfully produced and marketed in one
of the member states, they should not be introduced into any other member state’
(principle of mutual recognition).
However, there are limits to the idea that the Court has constantly ruled in favour
of removing barriers to intra-European trade. The principle of mutual recognition
has had to be balanced with the need to respect both the mandatory requirements
(‘rule of reason’) and exceptions provided by article 36 TFEU. Moreover, the Court
has put limits on its own interpretation since the early 1990s and the Keck and Mith-
ouard rulings (C-267 and 268/91), which reduced the scope of the prohibition of
quantitative restrictions (Friedbacher 1996).
In spite of this cautiousness with regard to ‘rule of reason’ (Cassis) and the scope
of the prohibition of quantitative restrictions (Keck), the free movement of goods is
an area where the Court has acted as a policy-maker, in accordance with the idea of
‘integration though law’. This is confirmed by the fact that little secondary legisla-
tion of direct importance has been adopted in this area of EU law, with the exception
of Directive 70/50, Regulation 764/2008 and Directive 98/34 (Foster 2014: 305).
The jurisprudence of the Court has been considered sufficient to eliminate the main
barriers to trade, and member states did not follow up with secondary law.
More recently, and in the context of the Eurozone crisis, the Court has continued
to issue rulings fostering economic integration. For instance, it has ruled on the con-
ditions for the establishment and functioning of a competitive internal market, such
as in the Vodafone ‘roaming’ case (C-58/08). In 2002, the EU has adopted a regula-
tory framework for electronic communications, networks and services, which laid
down maximum charges that mobile phone operators could charge for calls made
and received by users outside their own network. The leading European mobile

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telephone operators challenged the validity of the regulation before the High Court
in the UK. The High Court referred a question on the validity of the regulation to the
CJEU. The Court replied that the European legislature had not infringed the princi-
ples of subsidiarity and proportionality. This case provides a good example of how
the CJEU sets the limits of what is—or is not—justified on the grounds of treaty
provisions, in order to help establish the internal market. Hence, the idea of ‘market
integration through law’ is far from being obsolete.
However, by studying two other policy areas related to social/health policies and
human rights, the literature stresses that the idea of a Court being only market biased
is over simplistic. Over time, the CJEU has shaped the EU’s legal identity in many
different ways, going beyond ‘market integration through law’.

Social and health policies through and beyond market integration

It has been convincingly argued that the CJEU has extended the scope of the four
fundamental freedoms (goods, persons, services and capitals) to politically and
economically highly sensitive areas of social and health policies. This trend was
described as a specific functional spill over effect (Kelemen and Schmidt 2012). The
widely commented Kohll/Decker jurisprudence (see Obermaier 2008) together with
the Martinez Sala (C-85/96) and Grzelczyk (C-184/99) judgements with regards
social citizenship illustrate this evolution.
In Kohll (C-158/96), a Luxembourg citizen saw his national health insurance pro-
vider refuse to authorise and reimburse his dental treatment after seeing an ortho-
dontist in Germany. In Decker (C-120/95), Nicolas Decker was refused reimburse-
ment by his Luxembourg health insurance for a pair of glasses he had bought in
Belgium using a prescription from a Luxembourg ophthalmologist. The reasons for
restricting a patient’s mobility, as stated by several member states during the pro-
ceedings, were either that the freedom to provide services did not apply to national
social protection systems or that, if it did apply, then prior authorisation procedures
for healthcare expenditure abroad was needed, i.e. Mr Decker should have asked his
health insurance provider if he could look for glasses outside Luxembourg, and if
the cost of purchase would be reimbursed.
The CJEU, with the support of the Commission, applied the principles of free
movement of goods and freedom to provide services to the Luxembourg health-
care system. France, Germany, the UK and other member states argued that the
Court had unjustifiably interfered in the organisation of domestic social protection
systems, and that its ruling imposed on Luxembourg could not be applied to their
own social protection systems. Yet, the Court gradually extended the legal princi-
ples to other member states and to similar cases. In its subsequent jurisprudence,
such as Müller-Fauré (C-385/99), the Court of Justice has made clear that restricting
patients to receiving medical services from their domestic health systems is often
contrary to EC Treaty rules on the freedom to provide services, particularly where
the treatment is not in-patient (Davies 2004). Thus, the Court ‘came to include all
healthcare systems, public and private provision, and gradually limited the justified
scope of national conditions’ (Vollaard and Martinsen 2017: 145). This evolution

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has been identified as a ‘de-territorialisation of welfare’ (Martinsen 2005b; Vollaard

et al. 2016; Schmidt et al. 2018), and as a process through which the Court has had
tremendous influence (Martinsen 2005a, 2015b).
In those rulings, the Court not only applied extensively the free movement of
persons and the freedom to provide services, it also materialised the Union citizen-
ship and extended social rights to both active and inactive citizens. A Union citizen
should benefit from a right to equal treatment simply as a citizen of the Union. The
status of citizen, enshrined in the Maastricht treaty, was made concrete in the social
field.
However, this Court’s line of interpretation has been nuanced, or even altered, in
more recent case law. In Stamatelaki (Aikaterini Stamatelaki vs. NPDD Organismos
Asfaliseos Eleftheron Epangelmation, C-444/05), the CJEU seems to have taken into
account the member states’ fear that its rulings would seriously undermine the finan-
cial balance of a social security system, and which should be balanced with the free-
dom to provide services and access health care in another member state. Other cases
like Commission v. France (C-512/08), Commission v. Spain (211/08) and Com-
mission v. Luxembourg (C-490/09) have also nuanced the possibility to benefit for
cross-border health care.
With regard to social citizenship, the Dano judgement in Case C-333/13, con-
firmed by Alimanovic (C-67/14) and García-Nieto (C-299/14), has been presented
as a ‘turnaround’ in the Court’s case law (Blauberger et al. 2018: 6). Since Dano, the
Court develops a more restrictive approach of social citizenship, taking into account
Directive 2004/38 to prevent benefit tourism instead of promoting free movement.
While citizenship rights are not threatened per se, even in a challenging context as
was the Eurozone crisis since 2008 (Šadl and Madsen 2016), they have been speci-
fied and adjusted over time.
Does this Court’s case law entrench the idea that the Court is market oriented?
Does it prove that the Court has only one objective—economic integration—and
that this objective must be fulfilled by any means, even if it undermines social
welfare? While the spill over from market integration to the social field has been
convincingly demonstrated, we also find arguments in the literature, which might
question the idea of the Court’s solely market-oriented contribution to the European
‘integration through law’ identity.
First, the internal market is an area where the Treaty provides clear obligations
for the member states, compared to health and social policies where general and
imprecise objectives are defined. This does not necessarily mean that the judges,
individually as well as collectively, have an ideological bias towards market inte-
gration, but rather that they act in a more precise legal framework than that exist-
ing in other policy areas. With regard to the four freedoms, they are constrained by
Treaty provisions and secondary legislation much more than they are in social and
health areas, where soft law and new modes of governance are widely used (Fred-
man 2006). Not surprisingly, the abovementioned shift in the Court’s case law cor-
responds with the adoption of secondary legislation on social issues, which exerted
influence on the Court.
This leads to a second argument: the Court seems to be reactive to politicisa-
tion (Blauberger et al. 2018) and the changing public debate on social issues. To

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say it differently, the Court does not live in a political vacuum (Saurugger and Ter-
pan 2017) and adjusts its interpretations when confronted with strong reactions in
the member states. For example, when adopting its first rulings on cross-border
health care in the 1990s, the Court did not envisage the difficulties they would
create (Greer and Jarman 2012: 267). As the member states reacted, sometimes
strongly against it, the Court added clarifications to existing rules in further rulings.
Deviations from internal market principles were allowed and specified. Obermaier
explains the ‘fine-tuning’ of the Court’s case law as a result of some very nega-
tive reactions by the member states towards the Kohll/Decker jurisprudence, and of
the need to be pragmatic in order to ensure compliance from recalcitrant member
states (Obermaier 2009). Eventually, the Court’s case law triggered a legislative pro-
cedure, which led to the adoption of the Patients’ Rights Directive in Cross-border
Healthcare (2011/24/EU). This directive has not aligned with the Court’s case law
as the Commission proposed, but rather, has responded to the case law by allowing
more national control of cross-border care (Martinsen 2015a: 181; Blauberger et al.
2018; Blauberger and Schmidt 2017; Thym 2015. For a different point of view, see
Davies 2018).
Third, deciding whether the Court’s case law reflects a market-oriented or a more
social identity is a tricky question, as it entails the obligation to give an interpreta-
tion of the Court’s legal interpretations. Clearly, the academic interpretations that
we found in the literature are far from being consensual. On the one hand, several
scholars argue that the Court has promoted “transnational solidarity”: the four free-
doms have been used to promote “market solidarity”, while the Court also devel-
oped “Communitarian solidarity” by granting social rights to the Union citizens (De
Witte 2012, 2015). Another group of scholars, on the other hand, consider that the
granting of social rights to the citizens supports the idea of a market-oriented iden-
tity of the Court, as it undermines the financial balance of the national social secu-
rity systems, and creates other public policy risks. As Martinsen put it, the Court
has ‘entered a conflict-ridden terrain between the market freedoms of the European
Union and the redistributive competences of the member states’ (Martinsen 2015a:
142). Following this line of argumentation, it is only when the Court limits the indi-
vidual rights of the citizens, in order to protect national welfare that it distances
itself from a market-oriented identity.
Notwithstanding these controversies, we argue that there is sufficient evidence in
both the Court’s jurisprudence and the literature for us to conclude that the Court is
not solely motivated by the completion of the internal market and contributes more
widely to a multifaceted integration through law. A similar line of argument can be
found in the analysis of the Court’s fundamental rights rulings.

The protection of fundamental rights

Is there a contribution of the CJEU to the building of a rule of law identity

through judgements protecting fundamental rights? It is widely acknowledged
that the European Court has contributed to the constitutionalisation of the
European integration process by strengthening the protection of human rights.

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Originally, the Treaties did not include a catalogue of rights and freedoms. The
Court has compensated for this absence through the application of so-called gen-
eral principles of European law. The case of Internationale Handelsgesellschaft
(11/70) was the first step in a process through which the European Court ensured
the effective application of human rights in the EU using general principles of
European law. In a way, an ‘unwritten bill of rights’ (Schütze 2012: 411) has
emerged thanks to the Court’s jurisprudence.
What precisely triggered the Court’s attitude in the field of human rights, and
hence its contribution to a fundamental rights identity of the EU, remains unclear.
A first argument stresses that the Court has been ‘on the offensive’ when it comes
to human rights, spreading legal norms at national level through the use of legal
instruments (Weiler and Lockhart 1995). A second thesis posits that the Court has
developed its human rights jurisprudence ‘defensively’, i.e. to cope with the risk that
national courts might refuse to apply European law for reasons linked to the pro-
tection of human rights—in particular in Italy and Germany, where human rights
are sensitive for historical reasons (Davies 2012). These two explanations are not
incompatible. The Court’s rulings have always been linked to the opportunities that
the social and political environment provides over time.
However, the creation of general principles of EU law to defend fundamental
rights has not always been unanimously welcomed by the member states and the
legal doctrine alike. One recent example of this is the Court consecrating the exist-
ence of a general principle prohibiting discrimination on the grounds of age, in
Mangold (C-144/04), independent of the Employment Equality Directive (Schiek
2006) and any other EU legislation on the topic. According to the Court, this prin-
ciple stems from the constitutional traditions of the member states and various
international instruments applicable to the EU institutions and member states. The
Mangold ruling triggered a strong reaction in Germany, with German high-level
personalities launching the ‘Stop the ECJ’ campaign against the judicial activism
of the Court (Herzog and Gerken 2008). But the same judgement has also been pre-
sented in the legal doctrine as an expression of solidarity (Fontanelli 2011).
Since the entry into force of the Lisbon Treaty, the European Union is endowed
with a whole catalogue of fundamental rights. The Charter of Fundamental Rights
of 7 December 2000, as adapted at Strasbourg on 12 December 2007, has the same
legal value as the Treaties. This makes the Court the guardian of the Charter, or at
least the guardian of some of the Charter’s provisions, and opens another possibility
to contribute to the construction of a fundamental rights identity of the EU through
its rulings.
We find this contribution to the EU’s fundamental rights identity also through the
Court’s case law on privacy and data retention. In the cases of Digital Rights Ireland
(C-293/12 and C-594/12), Schrems (C-362/14), Tele2 (C-203/15 and C-698/15) as
well as in Opinion 1/15, the Court has used article 7 (private life) and 8 (protection
of personal date) of the Charter of Fundamental Rights in the EU to protect Euro-
pean citizens from mass surveillance programmes decided by public authorities in
both Europe and the USA. These rulings have forced the European Union to change
its internal legislation with regard to data retention and to negotiate with the USA a
new framework for data transfer from Europe to the USA. In doing so, the Court has

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provided large interpretations of the rights to private life and personal data protec-
tion so as to limit digital surveillance.
The rise of the illiberal democracies in Eastern Europe, more precisely in Poland
and Hungary, might give other opportunities for the Court to develop the fundamen-
tal rights identity, provided that case be brought before it by the Commission. This
has been the case with a recent procedure that the Commission has opened against
the reform of the Supreme Court in Poland, which endangers the independence of
the judicial system in this country.
However, the idea of the CJEU being a defender of human rights has also been
challenged, in particular by those who view the Court as primarily market oriented.
More specifically, the latter argue that human rights are defended by the Court only
when it helps fostering economic integration, and that protecting human rights is
always secondary when confronted with the internal market (Coppel and O’Neill
1992). It is also said that the European Charter of Fundamental Rights cannot coun-
terbalance the market orientation of the Court due to the weakness of its social
dimension (Kornezov 2017).
In this sense, many observers have drawn general conclusions from the analysis
of the Viking and Laval rulings (C-438/05 and C-341/05), arguing that the Court in
any case privileges market integration over human rights and fundamental freedoms.
While it is true that in some cases the Court renders decision where the fundamen-
tal and social rights identity analysed earlier seems not to be a priority, the conflict
between the economic and the human and social rights identity might be slightly
more complex than a binary interpretation let us to believe. The Viking ruling is a
good case in point. Here the Court has accepted limitations to the right of strike,
arguing that this right has to be exercised in a proportionate manner, and there-
fore can be restricted in order to preserve the freedom to provide services in the
European Union. The reason why the Court has taken this position could be that it
favours market integration. It is equally possible that the ruling reflects the defence
of the four freedoms, which are fundamental obligations arising from the treaties,
but also symbols on which the EU’s identity is based, situated at the centre of the
European integration project. Hence, the Court’s jurisprudence seeks for a bal-
ance between two different kinds of basic EU identities that are considered equally
important for the citizens (free movement and the right to strike). In this case, the
balance might not be achieved, as several scholars pointed, due to the severe restric-
tions that were applied to collective action. In other rulings like Omega (C-36/02),
or Sayn-Wittgenstein (C-208/09), the balance was much more favourable to funda-
mental rights (human dignity in Omega, and the status of the state as a Republic in
Sayn-Wittgenstein), showing that the Court does not systematically discard funda-
mental rights when they clash with fundamental freedoms (De Vries 2013).
If we acknowledge that the protection of fundamental—non-market—rights is
sometimes balanced with economic integration in the jurisprudence of the CJEU, we
also observe situations where fundamental rights yields to other imperatives, such as
the autonomy of the EU legal order and the monopoly of the Court in ensuring com-
pliance with this legal order. The debate over Opinion 2/13 illustrates this argument.
The Treaty of Lisbon has provided a legal basis (Art. 6(2) TEU), which explicitly
foresees the possible accession of the EU to the European convention on Human

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 S. Saurugger, F. Terpan

Rights (EcHR). As a consequence, negotiations with the Council of Europe started

in 2010 and came to an end with the signing of a draft agreement (April 2013). The
Commission asked the CJEU for an Opinion on the Draft Agreement, which was
released in December 2014 (Opinion 2/13). Contrary to advocate general Kokott,
the Court held that the draft agreement was not compatible with the EU Treaties
for a series of reasons. The central argument put forward by the Court was that the
EU’s accession to the EcHR could endanger the autonomy of EU law. Scholars and
experts composing the legal doctrine have been very critical with regard to Opin-
ion 2/13. The Opinion seemed to give utmost priority to the autonomy of the EU
legal system, regardless of the objective of EU accession to the EcHR, which is, yet,
grounded in the Treaty. The CJEU’s opinion illustrates how it continues to take an
active position on issues central to the European integration process and to defend
its position in the integration process. The autonomy of the EU’s legal order and the
monopoly of the CJEU in interpreting EU law enables it to adopt such a position.
Hence, there are clearly limits to the role played by the CJEU in defence of fun-
damental rights. Protecting the market is one of these limits, among others (like the
autonomy of the EU legal order). But here again we are confronted with the com-
plexity of the legal identity debate. When the Court defends market integration, it is
framed as the protection of a fundamental right. The fact that Court tries to strike a
balance between different rights—for example: the right to strike and the freedom to
provide services—does not mean that the internal market is the only legal identity
it is promoting. There is sufficient evidence in the literature to say that, before and
after the Charter has become legally binding, the promotion of human rights is also
one of the Court’s contribution to the EU’s legal identity.

Conclusion

The Court of Justice of the European Union has indeed contributed to specific Euro-
pean identities, both across areas, known as horizontal ‘integration through law’ and
within the content of specific public policy. The longitudinal analysis of the Court’s
contribution to identity building has, however, shown that this is not a linear pro-
cess, which could be measured in absolute terms. As for national courts, or institu-
tions more generally, its contribution to identity must be understood as a process,
and as a result of, external and internal constraints based on (1) legal frames (the
Court cannot make interpretation that would be totally inconsistent with the treaties
and secondary legislation or that would not result from a coherent legal reasoning);
(2) the positions of the member states’ authorities and their ability to accept and
apply CJEU rulings; (3) controversies over CJEU rulings, which create a doctrine
that needs to be taken into account by the Court in its judgements; (4) the impact of
the rulings on the society.
The result of our analysis based on these constraints is twofold. First, scholarly—
as well as legal—commentaries have constructed the CJEU’s role as the cornerstone
of the EU’s horizontal ‘integration through law’ identity. While the Court has been
considered to have become less central in European integration since the 1990s, its
rulings in specific areas, such as fundamental rights, still have an impact. This is due

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to the structural fact that the treaties still assert the Court’s role to decide on judicial
questions, but also because the Court continues to push the boundaries of EU law
beyond the treaties in a small number of cases.
Second, the perceived binary policy bias describing the CJEU as defending a
purely market-based identity of the EU is not as clear-cut as it might seem. Eco-
nomic negative integration is indeed a central element of the Court’s jurisprudence,
because it is a central element of the treaties and an objective widely shared by the
EU institutions and member states. But the Court has also defended social rights
and human values as part of the EU’s legal identity, in particular through the general
principles of European law. The inclusion of the Charter of Fundamental Rights in
primary law since the Lisbon Treaty (2009) has opened up the legal possibility for
the Court to refer to the Charter as a legally binding rule. This might reinforce the
tendency for the Court to act as the defender of the citizens and their individual as
well as collective rights. When the Court seeks to foster both market integration and
social and human rights protection, the process is an example of conflictual identity
construction as several articles in this special issue point out.
Beyond this complexity of identity construction based on controversies, we do
indeed observe the assumption according to which EU organisations have a greater
capacity to construct an identity in domains that are more supranational. The Court’s
contribution to the content of legal identities seems to be higher in policy fields
where supranational integration is high, such as economic integration. Similarly, the
Court’s contribution to the EU’s human rights identities seemed to increase with the
creation of the European Charter of Fundamental Rights. However, this assumption
is nuanced by the idea that the higher the degree of public scrutiny, both from citi-
zens and member states, the higher the probability that the Court issues more cau-
tious rulings in the contested policy areas.

Acknowledgements The authors would like to thank the participants of the workshops held at Sciences
Po Paris and Johns Hopkins University in Bologna for very useful comments, and in particular Mark
Thatcher and the two referees for the suggestions and remarks which extensively helped to improve the
article. The usual disclaimer applies.

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Publisher’s Note Springer Nature remains neutral with regard to jurisdictional claims in published
maps and institutional affiliations.

Sabine Saurugger is Professor of Political Science and Research Dean at Science Po Grenoble (France),
and research fellow at Pacte.

Fabien Terpan is Associate Professor in Public Law at Sciences Po Grenoble and Deputy Director of the
research centre CESICE.

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Comparative European Politics (2019) 17:567–584
https://doi.org/10.1057/s41295-019-00175-4

ORIGINAL ARTICLE

Common market, normative power or super-state?

Conflicting political identities in EU asylum
and immigration policy

Sandra Lavenex1

Published online: 29 March 2019

© Springer Nature Limited 2019

Abstract
Drawing an analogy to the role of immigration policy in processes of state forma-
tion, this article argues that the development of common asylum/immigration poli-
cies is indicative of the normative tensions implied in the EU’s transition from a
regulatory polity towards a political Union. Based on an analysis of key legislative
texts from the emergence of common immigration policies until today, it is shown
that policy developments are torn between three competing and conflicting politi-
cal identities. The EU’s traditional ‘market power’ identity anchored in a regulatory
approach focused on economic priorities has given way to an uneasy competition
between aspirations at ‘normative power’ identity based on universal liberal values
and a politically predominant ‘statist’ identity that addresses asylum/immigration
policies as a corollary of and challenge to internal community-building and security.
While these tensions are characteristic of the ‘liberal paradox’ of democratic states’
immigration policies, they are particularly challenging in the context of an increas-
ingly contested European integration project.

Keywords Asylum · Immigration · AFSJ · EU · Statehood

With its transition towards a political Union affecting ‘core state powers’ (Genschel
and Jachtenfuchs 2013), the EU has relinquished its traditional image of a tech-
nocratic, apolitical ‘regulatory polity’ (Majone 1997). The recent crises have dis-
closed the redistributive impact of common monetary policies and the humanitarian
shortcomings of common asylum policies. This has evoked a vivid debate about the
normativity of European integration. Attention has turned towards the ‘normatively
problematical aspects of political order’ (Joerges and Kreuder-Sonnen 2017, p. 122)
eventually motivating a more interpretative turn in EU studies. The development of

* Sandra Lavenex
[email protected]
1
Université de Genève, Geneva, Switzerland

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 S. Lavenex

common asylum and immigration policies is a fascinating field for studying pro-
cesses of political identity construction in the EU and the values involved (Sau-
rugger and Thatcher 2019). This is for two reasons. The first is the inherent link
with sovereignty. The second is the normative tensions intrinsic to (western) liberal
migration and asylum policies.
European migration policies affect state sovereignty from within and from
without. Internally, the abolition of internal migration policies implied by free-
dom of movement deprives member states of their sovereignty over the admis-
sion of EU citizens and long-term resident third-country nationals. Externally,
the development of common European policies regarding third-country nationals
amplifies this retreat of state sovereignty and symbolizes the EU’s appropriation
of quasi-statist features.
The redefinition of sovereignty in a multilevel context shifts responsibility for the
political values embedded in common policies to the European level. This responsi-
bility constitutes a challenge to EU institutions both because of the fundamental ten-
sions underlying liberal states’ asylum and immigration policies and because of the
EU’s own unsettled compromise between common market, normative power (Man-
ners 2002) or super-state in the making. The tensions underlying western asylum and
migration policies stem from the values of security and community on the one hand,
which, deriving from the particularism of (state) sovereignty, emphasize the need to
control and limit immigration, and the values of freedom and human rights on the
other hand which, deriving from liberal universalism, command openness. Herewith
the EU faces what scholars have coined the ‘liberal paradox’ (Hollifield 1992): the
difficulty to satisfice the liberal quests for economic openness and humanitarianism
with political demands for closure. Together with the sensitivity implied in the verti-
cal transfer of authority and the EU’s unsettled constitutional compromise between
market integration, vocation to liberal values and the development of core state pow-
ers, these normative tensions put a particular strain on the development of common
European policies. This manifests not only in incoherent policy outputs, but also
institutional battle grounds which, as we will argue, are not conducive to the defini-
tion of a common European political identity.
The article opens with a historical and theoretical reflection on the co-consti-
tutive relationship between migration/asylum, sovereignty and liberal values in
processes of state formation. This section serves as a broader contextualization of
the development of European political identity with regard to migration in anal-
ogy to the development of nation states. We then turn to the actors and processes
shaping the EU’s identity and values in the field of immigration policies from
the beginnings of cooperation in the 1980s until today. Based on an analysis of
primary documents from the EU’s main decision-making institutions and echoing
earlier studies (in particular Lavenex 2001; Menz 2015), three distinctive politi-
cal identity constructions are distinguished, all carried by different actor constel-
lations and political opportunity structures:

1. The ‘statist’ identity defended in particular on the part of the Council which,
emphasizing the value of ‘security’, derives an EU competence in asylum and

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Common market, normative power or super-state? Conflicting …

immigration matters from the need to protect the aspired internal ‘Area of Free-
dom, Security and Justice’ against external threats;
2. The ‘normative power’ identity which, articulated mainly by the Commission and
the European Parliament, seeks to emulate the universalist human rights standards
enshrined in ‘World society’ (Manners 2002; DiMaggio and Powell 1983);
3. And the ‘market power’ identity (Damro 2012) expressed by Single Market-
oriented directorates in the Commission which, drawing on the EU’s tradition
as ‘regulatory state’ (Majone 1997), seeks to promote mobility from a primarily
economic welfare-oriented perspective.

Promoted by different institutional actors within the EU framework and respond-

ing to different sets of values and political priorities, these three policy identities
compete in the development of a distinct and coherent overarching EU political
identity. While reflective of fundamental tensions inherent in the migration policies
of western liberal states, this article concludes that the EU’s unsettled constitutional
compromise privileges the first, ‘statist’ approach vis-à-vis the two more ‘liberal’
ones. This generates ideational conflicts with the EU’s traditional roots in economic
openness and it tends to undermine the EU’s aspirations at political Union based on
a community of values.

Political identity and immigration policy

We define political identity in a given policy field with Saurugger and Thatcher
(2019, p. 30) as ‘the articulation of political values that are claimed to be fundamen-
tal…, shared… and distinct’ (idem. 2018, p. 20). In order to assess the emergence of
an EU political identity in the field of immigration, we first review the evolution of
migration policies in the context of European states.
As with other core areas of statehood such as military or monetary affairs, the
development of immigration policies has structurally been linked to the forma-
tion of sovereign states. The more states have evolved from territorial jurisdictions
towards democratic welfare states, the more their immigration policies have become
complex, addressing next to questions of entry and stay also economic, social and
political entitlements (Lavenex 2018a), thereby reflecting the political values of the
receiving societies and states’ political identity more broadly.
The capacity to control territorial borders and the demarcation of citizenship
has been conceived of as core components of modern statehood. As indicated in a
well-known ruling of the US Supreme Court held in 1892: ‘It is an accepted maxim
of international law, that every sovereign nation has the power, as inherent in sov-
ereignty, and essential to its self-preservation, to forbid the entrance of foreigners
within its dominions, or to admit them only in such cases and upon such conditions
as it may see fit to prescribe’. More than a century later, in 2004, the United King-
dom House of Lords confirmed that ‘the power to admit, exclude and expel aliens
was among the earliest and most widely recognized powers of the sovereign State’
(Chetail 2014, p. 28). Consequently, large sections of political theory have come to

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 S. Lavenex

see control over aliens’ entry and stay as quintessence of statehood: ‘theoretically[,]
sovereignty is nowhere more absolute than in matters of emigration, naturalization,
nationality and expulsion’ (Arendt 1973, p. 278).
States’ attempt to seize control over immigration, however, started only relatively
late around the turn to the twentieth century and intensified during World War I.
The first step was the introduction of passports and other documentary controls on
movement and identification, thereby enabling the monopolization of the legitimate
means of movement (Torpey 2000). In Europe, the UK introduced first restrictions
on immigration in 1905, and these were limited to Eastern European Jews. Up until
then, it can be said that free movement rather than regulated migration was the norm
(Chetail 2014). This development followed the advent of more exclusive forms of
nationalism during the nineteenth century which were ‘specifically designed to pro-
mote national distinctiveness and solidarity’ (Zolberg 2000, p. 512). This included
the official formulation of national histories or the promotion of the country’s offi-
cial language alongside the discrimination of minorities (Anderson 1991). Exclusion
of aliens has been instrumental to this process of political and societal inclusion, and
the state’s capacity to control and select immigration has been framed as constitutive
of internal security. This view is inherent to the vision of ‘communitarian’ political
theorists like Michael Walzer (1983, pp. 38–39):
‘The distinctiveness of cultures and groups depends upon closure and, without
it, cannot be conceived as a stable feature of human life. If this distinctiveness
is a value, as most people (though some of them are global pluralists, and oth-
ers only local loyalists) seem to believe, then closure must be permitted some-
where. At some level of political organization, something like the sovereign
state must take shape and claim the authority to make its own admissions pol-
icy, to control and sometimes restrain the flow of immigrants. …The restraint
of entry serves to defend the liberty and welfare, the politics and culture of a
group of people committed to one another and to their common life’.
As indicated by the document analysis below, the process of European community
formation draws primarily on civic notions of citizenship, at the core of which is the
freedom of movement within the EU. Later, this notion of citizenship has come to be
complemented with social rights (Menz 2019) and more welfare-oriented discourses
of ‘solidarity’. Culturalist elements associated with nation-building are nearly absent
from supranational discourses. While this distinguishes European integration from
nineteenth-century European state formation, it should be noted that culturalist dis-
courses have proliferated at the level of the member states and find their expres-
sion in the rise of right-wing populist parties (Hooghe and Marks 2017; Hutter et al.
2016).
Communitarian values emphasizing civic, social and cultural ties resonate with
the particularist dynamics of political integration. They are, however, not uncon-
tested. The consolidation of western states has occurred in conjuncture with the dif-
fusion of liberal values many of which have universal aspirations. In this process,
the meaning of sovereignty has come to encompass the responsibility to ensure the
well-being of all individuals living within a sovereign territory and respect for their
fundamental human rights (Bauböck 1994; Haddad 2003).

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Common market, normative power or super-state? Conflicting …

Three spheres of liberal rights can be distinguished that have historically

been extended from citizens to migrants: the civil, economic and social rights
for migrants living in a territory, the right to protection against refoulement for
refugees and mobility rights for the economically active—later partially extended
to citizens of regional integration projects. The extension of civil, economic
and social rights to lawfully resident aliens and later partially also to irregu-
lar migrants have coined the notion of ‘denizenship’ in the literature (Hammar
1990), blurring the lines between citizens and non-citizens.
The principle of non-refoulement is at the core of the international refugee
regime and involves the prohibition to remove anyone to a country where he or
she faces a risk of persecution or serious violations of human rights. Similar to
the granting of denizenship, the principle of non-refoulement reflects commit-
ment to universal liberal values that transcend the particularism of the state sys-
tem. While the principle of non-refoulement applies to a wider range of persons
in need of protection, the more limited notion of a refugee specified in the Geneva
Convention entails also far-reaching entitlements towards the host country. As
Haddad (2003, p. 9) points out: ‘If we assume that the international system asks
that all individuals belong to a state, the refugee regime can be seen as an attempt
to make refugees into “quasi-citizens”. The specific body of refugee rights … was
created as a substitute for those citizenship rights available to individuals who
follow the rules of international society and belong, as they should, to a specific
state…’ (Haddad 2003, p. 9).
The third main expression of liberal values in immigration policy is linked to
the process of globalization and the gradual dismantling of economic boundaries.
Market economies have expressed recurrent demand for foreign labour to fill job
shortages, gain skills, or sometimes also suppress the costs of labour. Usually, these
demands have been met via national immigration laws and bilateral labour treaties.
Some regional integration projects such as Europe’s Single Market, the Mercosur in
South America or African Regional Economic Communities have enshrined multi-
lateral commitments to open up for the mobility of workers and other citizens, thus
effectively entailing Member States’ voluntary renouncement of sovereign control
over intra-regional migration (Lavenex 2018b). With western liberal states’ trans-
formation towards knowledge-based service economies, mobile labour has become
a factor of economic competitiveness in the quest for talent and skills. Whereas—
apart from regional commitments—national legislation remains predominant for
economic migration, states have agreed on limited provisions on the temporary
mobility of professionals in the World Trade Association’s General Agreement on
Trade in Services and in bilateral free trade agreements (Lavenex and Jurje 2015).
Summing up, the development of immigration policies is a corollary of state for-
mation. This constitutional bond is associated with an emphasis on sovereignty and
the value of (internal) security. In liberal states, this process is permeated by liberal
values of human rights and economic openness, which leads to a perpetual tension
between particularist commitments and universalist aspirations. In the following, we
retrace immigration policy discourses in the EU from their inception and explore
their references to the prerogatives of state security, human rights and economic
freedoms, respectively.

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 S. Lavenex

Contests over values and identities in EU asylum/migration policies

The EU’s evolution from a ‘regulatory polity’ (Majone 1997) focused on mar-
ket integration towards a political Union with ‘core state powers’ (Genschel and
Jachtenfuchs 2013) has been stated. The normative dimension of this evolution,
the political values and identities that are invoked, appropriated and defended by
the various architects of European integration has received less attention. This
disregard may flow in parts from traditional integration theories’ (intergovern-
mentalism and neofunctionalism) primary concern with explaining European
integration in terms of the conditions for ‘more’ or ‘less’ supranational compe-
tences (Kreuder-Sonnen 2016; Joerges and Kreuder-Sonnen 2017). The ques-
tion ‘which’ Europe emerges which values and identities are expressed in the
EU’s evolving institutions and policies have received much less attention. While
this question seems particularly pertinent for core state powers such as mone-
tary policy (McNamara 1998) or justice and home affairs (Lavenex and Wagner
2007), European integration has never been without normative implications. Fritz
Scharpf’s work on Single Market integration (1999) has shown that several insti-
tutional factors genuine to the EU’s internal structures have tilted common poli-
cies towards market-making (neoliberal) policies focused on removing obstacles
to trade and competition—in his terms ‘negative’ integration—while impeding
‘positive’, market-correcting integration in the sense of ‘the reconstruction of a
system of economic regulation’, including social policy (1999, p. 45). Much in
analogy to Scharpf, the following analysis shows that the development of an EU
identity in immigration policy has been dominated by a ‘statist’ frame empha-
sizing the communitarian values of internal freedom of movement and political
community-building over cosmopolitan liberal values (Lavenex 2018c). This
identity has, however, never been uncontested and competes with the EU’s voca-
tion at ‘normative power’ with strong commitment to universal human rights as
well as with the EU’s economic aspirations at ‘market power’. Being promoted by
different actors for different purposes, these three identities are partly in tension
with one another and therefore fuel ongoing debates on the finalité and vocation
of a European immigration policy—and more generally of the EU as a whole.

The statist identity: community-building and internal security

The oldest and dominant frame derives EU cooperation in asylum and immigra-
tion matters from the internal process of political consolidation including the
realization of freedom of movement and the discourses on European citizenship.
From this perspective, cooperation is justified as necessary for the safeguarding
of internal security in the EU after the abolition of internal border controls. Inter-
nal ‘freedom’ is thus seen as dependent on the maintenance of ‘security’ and pro-
tection from external threats. A functionalist connection is drawn between the
realization of an internal ‘Area of Freedom, Security and Justice’ (as baptized in
the Amsterdam Treaty) and the collective tightening of external borders.

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Common market, normative power or super-state? Conflicting …

This framing can be traced from the beginning of the discourses on a ‘Peoples’
Europe’ in the 1970s to the Rome Declaration marking the EU’s 60 st anniver-
sary in 2017 until today. While establishing a neofunctionalist line of justifica-
tion, deriving migration policy cooperation from the prerogatives of Single Mar-
ket formation, this discourse also served to affirm the EU’s political identity and
relevance vis-à-vis its citizenry. This corroborates Saurugger and Thatcher (2019)
who argue that in processes of political identity formation cognitive frames are
not only constitutive of actors but also the outflow of intentional, strategic action.
The idea to remove controls on persons at the Community’s internal borders
was first mentioned in a paper on European identity submitted by the Heads of
State or Government to the Copenhagen Summit of December 1973. This sug-
gested looking into the type of special civic and political rights which might
be granted to citizens of the EU Member States in order to bring them closer
to Community institutions and policies. The idea was taken up at the European
Council meeting in Fontainebleau in June 1984 where the EU Heads of State or
Government set up an ad hoc committee on a ‘People’s Europe’ chaired by for-
mer Italian MPE Pietro Adonnino with a view to respond ‘to the expectations of
the people of Europe by adopting measures to strengthen and promote its identity
and its image both for its citizens and for the rest of the world’ (European Coun-
cil 1984). The Adonnino committee proposed the abolition of internal border
controls alongside the expansion of internal free movement rights and the use of
common symbols like the common flag and a European driver’s licence as most
tangible instruments for fostering a sense of European belonging among Member
States citizens. Welcoming these proposals, the Commission subsequently drew
a link between internal mobility and the need to address immigration. According
to the 1985 White Paper ‘Most of our citizens would regard the frontier posts as
the most visible example of the continued division of the Community… Once
we have removed those barriers, and found alternative ways of dealing with
other relevant problems such as public security, immigration and drug controls,
the reasons for the existence of the physical barriers will have been eliminated’
(Commission 1985, para. 11; emphasis added).
Cooperation on migration thus came onto the European agenda together with
mattes of internal security as compensatory measure for the safeguarding of internal
security after the abolition of internal border controls. After the pioneering Schen-
gen Agreement between five Member States in 1985, the ‘Coordinators group on
the free movement of persons’ was created in 1988 to promote EU-wide coopera-
tion in the matter. This was a subgroup of the transgovernmental network of the
Member States’ interior ministries called TREVI who had been coordinating since
1976 on questions of internal security and public order. In 1989, the group issued
the ‘Palma-Document’ that was to become the blueprint for the ensuing cooperation.
According to its Title III, ‘The achievement of an area without internal frontiers
could involve… a prior strengthening of checks at external frontiers’ and ‘determin-
ing the State responsible for examining the application for asylum’ (Coordinators
Group 1999). The Preamble of the 1990 Dublin Convention marking the start of
Member States’ cooperation on asylum repeated ‘the joint objective of an area with-
out internal frontiers’.

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 S. Lavenex

This frame of cooperation in view of protecting the Schengen area was main-
tained when asylum and migration were officially embraced in the Third Pillar of
the Maastricht Treaty (Art. K1 ‘For the purposes of achieving the objectives of the
Union, in particular the free movement of persons’). This reasoning that derives the
necessity of cooperation from the challenges immigration poses to European inte-
gration permeates policy documents adopted under the Maastricht Treaty and is well
reflected in an important Commission Communication of 1994 according to which:
‘The deepening of the European integration process calls for an Integrated and
coherent response, which combines realism with solidarity, to the challenges which
migration pressures and the integration of legal Immigrants pose for the Union as
a whole. Failure to meet those challenges would be to the detriment of attempts to
promote cohesion and solidarity within the Union and could, indeed, endanger the
future stability of the Union itself’ (Commission 1994, Foreword). The vocation of
the European Union as a power in the protection of human rights, in particular with
regard to refugee protection but also migrant rights, or the demographic and eco-
nomic demand for immigration, which are at the heart of the EU’s ‘market power’
identity (see below), is absent from this and other documents of the period.1
While the Amsterdam Treaty introduced a mandate for the development of genu-
ine European asylum and immigration policies, and, moving these matters from the
intergovernmental to the supranational first pillar, also engendered the mobilization
of more normative and economic EU identities on the matter, the statist frame pri-
oritizing internal community-building and security was preserved. This is reflected
in its Title I Art. 3 which states the goal: ‘To maintain and develop the Union as
an area of freedom, security and justice, in which the free movement of persons is
assured in conjunction with appropriate measures with respect to external border
controls, asylum, immigration and the prevention and combating of crime’. Notwith-
standing the emergence of competing identities under these Treaties and during the
deliberations at the European Convention elaborating the (later dismissed) European
Constitution (see below), this statist–protectionist approach has been preserved and
permeates primary law and the majority of secondary laws in the matter. Article 3 of
the Amsterdam Treaty became Article 2 of the Lisbon Treaty whose Title IV laying
down the more detailed mandate reads ‘Visas, Asylum, Immigration and other poli-
cies related to the free movement of persons’.
In sum, a parallel can be drawn to the Single Market project that was framed in
terms of abolishing member states’ barriers to trade and not as a common system
of market regulation (Scharpf 1999, p. 45): EU cooperation on migration and asy-
lum was framed in view of protecting the EU’s internal ‘Area of Freedom, Security
and Justice’ and not as genuine European migration/asylum policy following either
socio-economic or human rights ambitions (Lavenex 2018c). As highlighted in the
communitarian line of thinking about the relationship between state formation and
immigration discussed above, this European identity has consistently been justified

1
If there are references to human rights so mainly in view of promoting human rights in countries of
origin of asylum seekers and refugees in order to reduce the root causes of forced migration (Commis-
sion 1994, p. 22ff.).

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Common market, normative power or super-state? Conflicting …

with member states citizens’ concerns and expectations in their transition towards
EU citizenship. The following quote from a Commission Communication in 2004
illustrates this reasoning when it praises the ‘Area of Freedom, Security and Jus-
tice’ as ‘one of the most outstanding expressions of the transition from an economic
Europe to a political Europe at the service of its citizens’ (Commission 2004a, b,
Annex p. 4).
This statist approach emphasizing internal security and community was iterated
very clearly on the occasion of the 60th anniversary of the Rome Treaties in 2017
when the EU Heads of State or Government declared as first goal of the Union, even
before prosperity and growth, ‘A safe and secure Europe: a Union where all citizens
feel safe and can move freely, where our external borders are secured, with an effi-
cient, responsible and sustainable migration policy, respecting international norms;
a Europe determined to fight terrorism and organised crime’ (European Council
2017).

The ‘normative power’ identity: image in the world and universal human rights

The ‘normative power’ approach to asylum immigration policy emerges relatively

late in the evolution of EU competences in the matter. It can be retraced to four
partly parallel developments: the experience of the wars in the Western Balkans
and the wave of solidarity brought towards the refugees in particular from Kosovo,
the new mandate given by the Amsterdam Treaty, the process of Eastern enlarge-
ment entailing a clearer definition and the projection of core European values, and
the deliberations in the European Convention centring on the norms underpinning
an eventual European constitution. The main proponents of this identity have been
the Commission and the European Parliament, as well as at least at the occasion
of the Tampere European Summit, the EU Heads of State or Government. While
the expanding human rights language in EU primary law has comforted the Com-
mission in the endeavour to inject stronger normativity in its policy initiatives, the
European Parliament has been a clear proponent of the human rights approach in the
early years of JHA cooperation, but has gradually moved closer to the ‘statist’ posi-
tion represented by the Council.
The Tampere European Council Conclusions of October 1999 are particularly
representative of the vocation towards a ‘normative power’ identity in asylum and
immigration matters. They clearly anchor these policies in the Union’s attachment
to universal liberal values and affirm the commitment to project these values exter-
nally to the rest of the world. Right after the introduction, under the title ‘Towards a
Union of Freedom, Security and Justice: the Tampere Milestones’ the Council states
the following:
From its very beginning European integration has been firmly rooted in a
shared commitment to freedom based on human rights, democratic institu-
tions and the rule of law. These common values have proved necessary for
securing peace and developing prosperity in the European Union. They will
also serve as a cornerstone for the enlarging Union. The European Union has
already put in place for its citizens the major ingredients of a shared area of

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 S. Lavenex

prosperity and peace… This freedom should not, however, be regarded as the
exclusive preserve of the Union’s own citizens. Its very existence acts as a draw
to many others world-wide who cannot enjoy the freedom Union citizens take
for granted. It would be in contradiction with Europe’s traditions to deny such
freedom to those whose circumstances lead them justifiably to seek access to
our territory. This in turn requires the Union to develop common policies on
asylum and immigration, while taking into account the need for a consistent
control of external borders… (European Council 1999, para. 1–3, emphasis
added).
This quote not only affirms the Union’s attachment to liberal values but also empha-
sizes their universal scope and derives EU action on asylum and immigration from
the EU’s traditional vocation to preserve and promote these values. In the field of
asylum, this means that the ‘normative power’ identity emphasizes the human rights
base of this policy rather than the need for coordination in order to avoid negative
effects of the abolition of internal border controls as emphasized in the ‘statist’
identity: ‘The European Council reaffirms the importance the Union and Member
States attach to absolute respect of the right to seek asylum. It has agreed to work
towards establishing a Common European Asylum System, based on the full and
inclusive application of the Geneva Convention, thus ensuring that nobody is sent
back to persecution, i.e. maintaining the principle of non-refoulement’ (ibid, para.
13). Secondly, the ‘normative power’ identity also involves extending the privileges
accorded to EU citizens as far as possible also to legally resident non-EU nationals.
Under the title ‘Faire Treatment of Third Country Nationals’, the Tampere conclu-
sions state that ‘The European Union must ensure fair treatment of third country
nationals who reside legally on the territory of its Member States. A more vigorous
integration policy should aim at granting them rights and obligations comparable to
those of EU citizens. It should also enhance non-discrimination in economic, social
and cultural life and develop measures against racism and xenophobia’ (ibid, para.
18). In short, ‘The legal status of third country nationals should be approximated to
that of Member States’ nationals’, including the rights associated with freedom of
movement (ibid, para 21).
Perhaps the most immediate concrete policy outputs flowing from this ‘norma-
tive power’ approach were the Commission’s proposals for directives on family
reunification (1999) and on the status of long-term resident third-country nation-
als (2001), respectively. The directive on family reunification sought to establish
common minimum standards for the right of legally resident third-country nationals
to be joined by the members of their family, which is a right recognized in many
international law instruments including the European Convention on Human Rights
and the EU Charter on Human Rights. The normative frame reflected in the pro-
posal met, however, stark resistance in the Council. After issuing its first proposal
in 1999, the Commission had to table two amended proposals in 2000 and 2002
before a much watered-down directive was finally adopted in 2003. Dealing as lit-
tle as possible with legal obligations and, where necessary, introducing minimum
standards below those existing in national legislation, this directive hardly advanced
the rights of third-country nationals residing in the EU. This was one of the reasons

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Common market, normative power or super-state? Conflicting …

motivating the European Parliament to take action before the European Court of
Justice to strike down provisions which it considered in opposition to the protec-
tion of the family enshrined in Art. 8 of the European Convention of Human Rights
(Lavenex 2006, p. 1291).
The second principal instrument proposed in the wake of the Tampere Conclu-
sions, the Long-Term Residents Directive adopted by the Council in 2003 also
marks a clear setback compared to the Commission’s proposal. In particular, the
Council watered down the principle of equal treatment with EU nationals by allow-
ing the Member States to limit mobility rights for third-country nationals through
national labour market preferences, the right to set numerical quotas on the admis-
sion of third-country nationals, and the requirement comply with certain ‘integra-
tion’ measures (Carrera 2005). This contestation of the rights-based approach by the
Council is even more salient if one considers that free movement rights had de facto
already been partly extended to legally resident third-country nationals by several
rulings of the European Court of Justice since the mid-1980s.2
The ‘normative power’ identity of EU asylum and immigration policies is
reflected—apart from the effort to expand the rights of legally resident third-country
nationals—in an effort to create the basis for a common European asylum policy.
The Amsterdam Treaty recognized the need to approximate national asylum sys-
tems as a precondition for the effective and fair application of the 1990 Dublin Con-
vention and subsequent Regulation which introduced the principle of mutual rec-
ognition for the examination of asylum claims. The issue of asylum, however, also
gained prominence with the deliberations in the European Convention preparing the
ground for the European Charter of Fundamental Rights and the (dismissed) Euro-
pean Constitution. Generally speaking, Justice and Home Affairs, including asy-
lum and immigration, figured prominently in the work of the Convention and many
members of the Convention counted progress in these matters among Europe’s
most important tasks (European Convention 2002, para. 6). The right of asylum,
later included in the Charter of Human Rights, took a certain stage and delibera-
tions reflect strong orientation at international legal standards and in particular the
Geneva Convention and, to a lesser extent, other more general human rights treaties.
Out of thirty amendments proposed to the Presidency’s draft, fourteen invoke an
explicit reference to the Geneva Convention to justify their claim, three refer to the
European Convention on Human Rights and four refer to the Universal Declaration
of Human Rights.3 A comparison of deliberations on other, less strongly codified
norms, such as minority rights and cultural diversity, also shows that asylum was not

2
Drawing on the principle of non-discrimination, the Court extended free movement rights first to
posted workers who were long-term resident third-country nationals employed by European firms under
the freedom of services (Rulings 12/86 Demirel [1986] ECR 37/9) and then to long-term resident third-
country national from countries with which the EU had signed association agreements containing rel-
evant clauses, such as Turkey and Morocco (rulings C-192/89 Sevince [1990] ECR; I-3461, C-18/90
Kziber [1991] ECR 199).
3
Charte 4332/00, Draft Charter of Fundamental Rights of the European Union—amendments submitted
by the members of the Convention regarding civil and political rights and citizens’ rights, Brussels 25
May 2000.

119 Reprinted from the journal

 S. Lavenex

among the contested themes at the Convention, despite its high degree of domestic
politicization (Meyer and Engels 2002). If we can speak of contestation, it mainly
concerned the Spanish insistence, already codified in the Amsterdam Protocol, to
exclude EU citizens from this right.
Cooperation on asylum also progressed outside the Convention in EU legislative
processes. As in the case of the directives on legal migration discussed above, Com-
mission proposals faced strong resistance from the member states. A case in point
is the Asylum Procedures Directive adopted after several delays more than a year
beyond the deadline set by the Amsterdam Treaty in December 2005. The aim of
this directive was to set common minimum procedural standards for the examination
of asylum claims. Providing for several exception clauses and generally cast in weak
legal language, the directive faced strong criticism by both the European Parliament
and refugee organizations such as the United Nations High Commissioner for Refu-
gees UNHCR.4 As in the case of the Family Reunification Directive, this dissatisfac-
tion led the European Parliament which, at the time, had only consultative rights, to
challenge the directive in front of the Court (Lavenex 2006, p. 1291).
If we look for the actor which has most consistently upheld the ‘normative power’
identity in asylum and migration matters at the EU level, this is undoubtedly the
European Parliament. This stance was mirrored already in 1992 with the creation
of a new standing committee entitled ‘Committee on Civil Liberties and Internal
Affairs (LIBE)’ to emphasize the human rights dimension of what the Council
referred to as ‘Justice and Home Affairs’. Herewith the Parliament clearly distin-
guished the matters relating to ‘human rights problems in the Community’ (Euro-
pean Parliament 1992) from the scope of the existing Committee on Legal Affairs
and Citizens Rights (JURY)—thus symbolizing its detachment from the statist com-
munity-building frame of the Council, and, partly, of the Commission. This vocation
to the protection of human rights inside the EU came as a surprise for some and
spurred consternation among the member states (De Capitani 2010, pp. 125–126).
While frequently antagonizing the Council, and in several instances challenging its
agreed directives in front of the Court (see above), the ‘normative power’ approach
adopted by the European Parliament also allowed it to develop an identity different
from that of the other EU institutions and to therefore underline its claim for con-
sultation and, from the Amsterdam Treaty onwards, co-decision in the legislative
process (European Parliament 2008).
The Lisbon Treaty gave the ‘normative power’ identity new support by recog-
nizing the Charter of Human Rights as legally binding and eliminating the limits
imposed on the Court of Justice. Consequently the Commission engaged in a com-
prehensive recast exercise proposing revised and allegedly improved versions of the
directives adopted under the Amsterdam Treaty. In particular, the aim was to reduce
the scope of discretion left to the member states by tightening common standards.

4
See European Parliament, report by Wolfgang Kreissl-Dörfler on the amended proposal for a Council
directive on minimum standards on procedures in Member States for granting and withdrawing refugee
status adopted in Plenary on 25 September 2005, A6-0222/2005 and UNHCR press release of 30 April
2004.

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Common market, normative power or super-state? Conflicting …

As detailed analyses have shown, however, the revised directives have made only
limited progress compared to the first generation and the policy core—that is the
policy identity of these instruments and has largely remained unaffected (Trauner
2016).
Expectations that the Court of Justice could develop a stronger role in the devel-
opment of a ‘normative power’ identity in asylum and immigration have also not
materialized. Analysing the Courts’ jurisprudence under the new powers awarded
by the Lisbon Treaty, Grainne de Burca comes to the conclusion that ‘there has been
a remarkable lack of reference on the part of the Court of Justice to other relevant
sources of human rights law and jurisprudence’. Given that ‘the procedural rules of
the Court of Justice make it very difficult for actors with relevant human rights expe-
rience and expertise … to intervene or participate in proceedings … the risk … is a
detached, autonomous and potentially insufficiently informed case law on a growing
range of important human rights issues’ (De Burca 2013, p. 173f.).
The crisis of the European Asylum System of 2015 has exposed the limits of
‘normative power’ in the EU’s asylum and immigration acquis. Rather than pro-
viding a system assuring protection for persons qualifying as refugees, existing EU
regulations rather deterred access to national asylum systems, spurred distributive
conflicts among the member states and failed to ensure common standards for rec-
ognition practices or asylum procedures (Niemann and Zaun 2018; Lavenex 2018c).

The ‘market power’ identity: economic competitiveness and the quest for labour

The third-political identity deployed by the EU in its migration policies is the ‘mar-
ket power’ approach (Damro 2012). In contrast to the ‘statist’ and ‘normative power’
identities, this approach takes a functionalist, apolitical stance and derives policy
priorities from the economic needs of the Single Market in its global context. This
approach was at the core of the internal free movement regime as fourth freedom
of the Single Market. The economic perspective on immigration from third-country
nationals, however, its importance for European labour markets, demographic devel-
opment and economic growth, however, came relatively late on the EU’s agenda
and remains contested. This perspective took shape in the context of the ‘Lisbon
Strategy’ on economic growth based on a knowledge-based economy adopted by the
European Council in Lisbon on 23/24 March in 2000 (European Council 2000), a
link that intensified in the context of the economic recession starting in 2007/2008.
Yet member states have hitherto opposed the idea to address economic immigra-
tion at the EU level. In the absence of a common economic immigration policy, this
policy identity has materialized in a limited set of directives addressing only specific
categories of temporary migrants and excluding an EU competence to determine
volumes of admission (see below). Although each of these instruments was justified
in terms of the ‘market power’ identity, by 2010, when the member states adopted
the ‘Europe 2020’ strategy succeeding to the Lisbon strategy, reference to economic
migration as an element for economic growth and competitiveness had vanished.
The onset for an EU policy on labour migration was laid with a Commission
Communication in 2000 which called for a ‘new approach to immigration’ given ‘the

121 Reprinted from the journal

 S. Lavenex

projected decline in population in the EU over the next few decades’ and ‘a growing
recognition that, in this new economic and demographic context, the existing “zero”
immigration policies which have dominated thinking over the past 30 years are no
longer appropriate’ (Commission 2000, p. 6). The following Commission proposal
for a common immigration policy (Commission 2001) detailed out common pro-
visions without engaging with justifications based on economic or demographic
arguments and only makes a cursory reference to the global competition for talent
(Preamble, para. 6). After member states refused to engage with this proposal, the
Commission changed its strategy and engaged in a more proactive framing strategy
along the tenets of the ‘market power identity’ in carving its way into this domain
(Menz 2015). This is clearly documented in the introduction to the Commission’s
Green Paper on an EU Approach to Managing Economic Migration adopted at the
end of 2004. Making references to the Lisbon objective, the Commission states that
‘even if the Lisbon employment targets are met by 2010, overall employment levels
will fall due to demographic change. Between 2010 and 2030, at current immigra-
tion flows, the decline in the EU-25’s working age population will entail a fall in
the number of employed people of some 20 million. Such developments will have
a huge impact on overall economic growth, the functioning of the internal market
and the competitiveness of EU enterprises. In this context, and while immigration
in itself is not a solution to demographic ageing, more sustained immigration flows
could increasingly be required to meet the needs of the EU labour market and ensure
Europe’s prosperity. Furthermore, immigration has an increasing impact on entre-
preneurship’. This discourse is even more pronounced in the Commission’s policy
plan on legal migration of 2005 (Commission 2005) which in its preamble makes
ample references to the Lisbon Strategy with its targets to turn the EU into ‘the
most competitive and dynamic knowledge-based economy in the world’, to ‘make
the Community more attractive to … workers from around the world and sustain
its competitiveness and economic growth’. A particularity of this agenda is the par-
ticipation of DG Employment and Social Affairs next to the DG Justice and Home
Affairs usually in charge for migration within the Commission. Whereas a common
European policy for economic migration is still lacking, the proposals realized under
the Treaties of Amsterdam, Nice and Lisbon corroborate the priorities of the 2000
Lisbon Agenda concerning a knowledge-based economy and skill development.
Directives were adopted for the admission of students (2004); researchers (2005);
highly qualified workers (2009); and intra-corporate transferees (2014). The excep-
tion to this focus on skills is the directive on seasonal workers of 2014.
Although the demographic situation in Europe and the global competition for tal-
ent have not really changed, the ‘market power’ identity over immigration policy
has not evolved beyond these limited initiatives. This is also evident from policy
discourse which has become more cautious on this socio-economic argumentation.
Thus, the follow-up document to the 2000 Lisbon Strategy, the ‘Europe 2020’ strat-
egy, only makes a very weak reference to economic migration policy. ‘Migration’
is mentioned only once under the Commission’s objective of an ‘Agenda for New
Skills and Jobs’ (Commission 2010, p. 18) with the goal ‘to promote a forward-
looking and comprehensive labour migration policy which would respond in a

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Common market, normative power or super-state? Conflicting …

flexible way to the priorities and needs of labour markets’. To date, this objective has
not materialized into concrete policy output.
The vanishing of this ‘timid’ ‘market power’ identity in immigration policy is
also reflected in the 2017 Rome Declaration marking the 60th anniversary of the
Rome Treaties. Accordingly, the EU Heads of State or Government agreed that ‘In
the 10 years to come we want a Union that is safe and secure, prosperous, competi-
tive, sustainable and socially responsible, and with the will and capacity of playing
a key role in the world and of shaping globalisation’. Yet the issue of immigration is
only mentioned in the context of the ‘statist’ identity under Article one: ‘A safe and
secure Europe: a Union where all citizens feel safe and can move freely, where our
external borders are secured, with an efficient, responsible and sustainable migration
policy…’, it is not mentioned in Article two proposing ‘A prosperous and sustain-
able Europe: a Union which creates growth and jobs; a Union where a strong, con-
nected and developing Single Market…open(s) avenues for growth, cohesion, com-
petitiveness, innovation and exchange’ (European Council 2017).

Conclusion

Drawing an analogy to the role of immigration policy in processes of state forma-

tion, this article has argued that the development of common asylum/immigra-
tion policies is indicative of the normative tensions implied in the EU’s transition
from a regulatory polity towards a political Union. These normative tensions have
been identified in three different policy identities embedded in EU asylum/migra-
tion legislation: the ‘statist’ identity addressing asylum/immigration policies as a
corollary of and challenge to internal community-building and security; the ‘nor-
mative power’ identity emphasizing the EU’s external reflection in the world and
vocation to universal liberal values; and the ‘market power’ identity anchored in the
EU’s traditional regulatory approach focused on economic priorities. These three
identities reflect fundamental tensions inherent to liberal states’ asylum/migration
policies and indicate the general difficulty of defining a coherent approach to these
complex matters. Whereas liberal states have over time institutionalized the three
perspectives to immigration to different extents in their national constitutions, laws,
political–administrative and judicial systems, thereby aiming at an (often imperfect)
balance between the three, this is not yet the case at the EU level. Much like in
the process of state formation, extra-European immigration has first been addressed
from the territorial perspective of border management and as an issue of internal
security. Coupled with the predominance of home affairs ministers in the Council
of Ministers and the increasing politicization of immigration in the member states,
this approach has remained predominant at the level of EU institutions and law. Both
the Commission and the Parliament have advocated a ‘normative power’ perspec-
tive based on human rights values early on, leading to the inclusion of pertinent
provisions in the EU Charter as well as in a number of directives addressing the
rights of asylum seekers, refugees and migrants. This policy identity has, however,
recurrently faced reluctance on the part of the Council. Member states have also not

123 Reprinted from the journal

 S. Lavenex

sought European solutions to the intake of economic migrants but have preferred to
maintain their national schemes.
In sum in the context of internal community-building, the process of European
integration generates a functionalist emphasis on the strengthening of external bor-
ders that is typical to processes of state formation. Coupled with the politicization
of immigration, the value added of EU policies for member states is perceived to
lie more in measures to control undesired immigration than in forging a common
policy based on human rights or economic freedoms. The recent crisis of the Com-
mon European Asylum System and the difficulties to agree on a common policy
to attract ‘desired’ foreign workers document the limits of this one-sided concern
with protecting the internal ‘Area of Freedom, Security and Justice’ from eventual
external threats. While the historical analogy shows that the desire to demarcate the
boundaries of the community is a normal step in processes of state formation, the
process of European unification, in contrast to the territorial European states of the
eighteenth and nineteenth centuries, occurs in the context of (more or less) consoli-
dated liberal democracy. Also, this focus contrasts with the EU’s own foundations in
economic freedom and more recent ambitions at normative leadership. It is therefore
no surprise that the protectionist, ‘statist’ bias fails to satisfice normative and eco-
nomic expectations to the emerging European identity—and points at the limits of
political unification.

Acknowledgements This research was supported by the National Center of Competence in Research nccr
– on the move funded by the Swiss National Science Foundation.

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Publisher’s Note Springer Nature remains neutral with regard to jurisdictional claims in published
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Sandra Lavenex is Professor of European and International Politics at the Department of Political Sci-
ence and International Relations and the Global Studies Institute of the University of Geneva. She is also
Visiting Professor at the College of Europe

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Comparative European Politics (2019) 17:585–602
https://doi.org/10.1057/s41295-019-00179-0

ORIGINAL ARTICLE

Direct and market governance paths for the creation

of an EU political identity: cultural heritage policy

Mark Thatcher1

Published online: 29 March 2019

© Springer Nature Limited 2019

Abstract
Cultural heritage has a dual nature: it is pursued for non-economic purposes; but it
also forms part of economic markets. Indeed, the European Commission has pur-
sued two sets of policies in cultural heritage: activities to directly develop an EU
identity, which parallel processes seen in nation building in Europe; governing cul-
tural heritage markets. The article argues that both can contribute to the creation
of an EU policy identity and compares them through two subcases: EU creation
of public symbols and labels; regulation of cross-border trade in artistic objects. It
argues that although the first developed earlier and enjoyed an expansion of treaty
powers, it has been marked by important limitations in terms of definitions of values
and differentiation from other European identities. The second has seen a gradual
development of specific EU values and definitions that are differentiated from those
of other polities through cultural exceptions to general rules of EU markets or their
adaptation. The conclusion points to a different path of political identity creation
than that suggested by studies of cultural nationalism for nineteenth-century Euro-
pean nation states, one that is related to the EU as a market maker and shaper.

Keywords Cultural heritage · Political identity · Culture · Cultural markets

Introduction

Culture heritage has both economic and non-economic features that are important
for its role in building political identity. It forms part of markets for goods and ser-
vices, but it is also pursued for non-economic aims such as appreciating ’beauty’,
understanding the past and expressing membership of a group. Indeed, the Euro-
pean Commission recognises ‘the dual nature of culture, being on the one hand an

The chapter’s original version was revised: Mark Thatcher's affiliation has been updated. The
correction to the chapter is available at 10.1007/978-3-031-17407-0_12

* Mark Thatcher
[email protected]; [email protected]
1
Department of Political Science, Luiss University Rome, Rome, Italy

127 Reprinted from the journal

 M. Thatcher

economic good that offers important opportunities for the creation of wealth and
employment, and, on the other, a vehicle of identities, values and meanings that mir-
ror and shape our societies’ (Commission 2014a: paragraph 72).
In line with this ‘dual nature’, the EU has pursued two sets of policies. One has
explicitly sought to create an EU political identity through cultural heritage using
means such as public labelling, symbols and cultural spending programmes. This
has parallels with processes seen in nation state building in Europe.
The second group has focused on the economic aspects of cultural heritage. It
has included creating exceptions to general EU market principles, establishing rules
for trade in cultural heritage goods and services and linking cultural heritage with
economic development. But policies to govern markets are not neutral—they involve
choices and the expression of aims and values. Such processes can contribute to cre-
ating political identities, even if this is not their explicit aim. They can be particu-
larly important for cultural heritage, where the values linked to its dual nature can
conflict.
Cultural heritage thus offers an example of political identity building through two
types of EU policies: explicit identity-creating strategies; indirect creation through
market governance. The article examines these by looking at top-down policy iden-
tity creation by the European Commission, both generally and then in a subcase for
each type of policy (EU public symbols and labels; EU rules governing cross-border
trade in artistic objects). It argues that the EU has faced major limits in its ability to
build a top-down EU policy identity in cultural heritage, but that there have been
significant differences between the two sets of policies. The first has seen significant
new Treaty competencies, as well as the expansion of activities. But, the subcase
shows that it has been subject to strong constraints in terms of articulating specific
and well-defined EU values that are differentiated from those of member states and
other European bodies. The second set of policies has expanded later and with fewer
Treaty changes. But it has seen significant articulation and definition of distinct val-
ues. To explain these differences, the article underlines not only the legal framework
but also the differing ability of the Commission to overcome divisions among mem-
ber states in pursuit of making and shaping markets.
The findings suggest that the EU has greater capacity to construct a policy iden-
tity by creating market rules than through explicit identity-creating programmes.
More broadly, they point to a different path for EU identity creation than that sug-
gested by studies of cultural nationalism for nineteenth-century European nation
states, one that is related to the EU as a builder and shaper of markets.
The article begins by discussing links between cultural heritage and political
identity before offering an overview of each set of policies and then analysis of the
subcases.

Cultural heritage, EU cultural policy and political identity building

Cultural heritage can be material, such as buildings, monuments or art, or immate-

rial, such as languages or customs. It does not simply exist but is created, notably
by selecting and attaching meaning to certain objects or practices through processes

Reprinted from the journal 128

Direct and market governance paths for the creation of an EU …

of ‘heritagisation’ (Smith 2006; Harrison 2013). David Lowenthal defines herit-

age as ‘the celebration of the past for present purposes’, but a past ‘in danger’ that
therefore needs protection (Lowenthal 1998; cf. Wright 2009). Hence heritagisa-
tion can be highly political and particularly strong in times of crisis and institutional
development.
Indeed, a wide literature on ‘cultural nationalism’ shows that nationalists, includ-
ing state actors, created much cultural heritage as part of strategies to establish
national identities, often in the nineteenth century (Hutchinson 1987, 2013; Leers-
son 2006; Anderson 1983; Hobsbawm and Ranger 1983). They sought to create,
support and sustain ‘imagined’ communities of groups that identify with ‘the nation’
through many means: ‘invented traditions’, symbols, myths, places of commemo-
ration, ‘national styles of architecture’ or ‘national recreations’ (Smith 1999, esp.
Chap. 4; Smith 2013; Billig 1995; Hobsbawm and Ranger 1983; Anderson 1983).
In similar vein, studies on contemporary heritage underline that state actors produce
an ‘authorised heritage discourse’ (an ‘official’ view of the past and its relevance for
today) and use heritage to attract popular support for the nation (Smith 2006; Wright
1985; Hewison 1987). Such strategies are not confined to nation states: for example,
the literature has analysed the creation of EU ‘political myths’, in both economic
and non-economic domains (Della Sala 2010).
Sometimes inspired by the literature on nationalism in Europe, studies have ana-
lysed EU cultural policies that directly promote an EU identity (e.g. Cram 2009;
Shore 2000; Sassatelli 2002; Patel 2012; Calligaro 2013). They have argued about
the effectiveness of the EU’s ‘unity in diversity’ strategy (discussed below), the
degree of integration achieved and the extent to which EU institutions have followed
a deliberate strategy of seeking legitimacy through cultural policy. Views range from
a claim that European elites and institutions, especially the European Commission,
have engaged in a strong centralising drive for EU integration (Shore 2000) to argu-
ments that policy making is in fact highly fragmented with a dispersion of power
to many actors (Calligaro 2013; Sassatelli 2009). Recent analyses of EU cultural
policy have claimed that there has been a major shift towards promoting economic
aims and see culture and economy as being in tension or indeed contradiction. Some
have argued that the focus on the ‘knowledge economy’ may indeed represent an
industrial policy strategy for culture (Littoz-Monnet 2015; Crawford Smith 2015)
and that, it is ‘economic instrumentalism rather than identity-building that presently
prevails’ (Schlesinger 2018: 2; see also Primorac et al. 2018).
The studies on cultural nationalism, heritagisation and EU cultural policies
underline the political nature of heritage and its functions in creating political iden-
tity. They show that policy makers, including in recent polities such as the EU, can
engage in heritagisation. At the same time, the studies need and careful application
when examining EU policy identity. Many studies of cultural nationalism are based
on nation states, especially in the nineteenth century, whereas its development in the
twenty-first century at the EU level may well differ. For its part, the literature on EU
heritage frequently forms part of much wider debates on the existence and strength

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 M. Thatcher

of a European cultural identity, European integration and the substantive content

of the policies (e.g. Sassatelli 2009; MacNamera 2015; Calligaro 2013), whereas
here the analysis concerns top-down political identity created through policy mak-
ing. Of particular note for the EU as a ‘regulatory state’ centred on market creation,
is that many studies treat identity building and market integration as separate or as
conflicting alternatives (e.g. Schlesinger 2018; Primorac et al. 2018; Littoz-Monnet
2015; Crawford Smith 2015). Yet governing markets involves setting out values and
aims, and hence, even if indirectly and without being an explicit objective, creating
a policy identity; similar processes can be seen in other economic spheres such as
trade negotiations or the role of ECB (see Duina and Smith 2019, and Jones 2019,
this issue).
The present article compares two sets of policies pursued by the European Com-
mission, one of directly promoting a ‘European identity’, and then a second of gov-
erning cultural heritage markets. The first has parallels with the processes identified
by the cultural nationalism literature. But the second group of policies can also cre-
ate an EU political identity albeit indirectly as it is not one of their specified objec-
tives. This is true even (or perhaps particularly), in cultural domains which have an
explicit set of alternative values to those of competitive markets and economic ben-
efits. The two sets of policies are undertaken primarily by the same DG within the
European Commission and involve discourses that set out values and hence political
identity. But they differ in terms of forms of action and the article explores their
contrasting political dynamics and implications for EU policy identity construction.
EU policy identity is defined as a coherent set of political values that are artic-
ulated and claimed to be fundamental, shared across the EU and distinctive with
respect to other polities, including member states (see Saurugger and Thatcher 2019,
this issue). Policy identity is studied through policy making, including policy aims,
the policy process and also legislation and Treaty provisions which not only set a
legal framework but also express values. Given space constraints, most attention
is given to the European Commission, whose importance has been underlined by
studies of cultural policy.1 An inductive approach of suggesting possible explana-
tory factors is followed since at present, there are few specific hypotheses concern-
ing the comparison between direct and market-shaping process of EU identity con-
struction. The article does not examine whether and why European integration has
occurred nor whether a European cultural identity held by citizens has developed;
these issues have been examined by other research. Finally, whilst much of the EU
literature refers to ‘culture’, sometimes using it almost interchangeably with cul-
tural heritage, the article is concerned with the latter as defined by the Commission
(indeed, the definitions and examples that it provides are used as evidence about the
EU’s policy identity).

1
Although other European organisations such as the European Parliament and Council of Europe are
also influential—e.g. see Sassatelli (2009), Calligaro (2013), and Psychogiopoulou (2015).

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Directly promoting an EU identity through cultural heritage

The ‘unity in diversity’ strategy

The Commission’s dominant policy in cultural heritage during the 1970s, 1980s
and 1990s was explicitly to create an EU identity through a sense of European con-
sciousness. It is well defined by Calligaro as ‘actions consisting of the representa-
tion of the European project capable of arousing the citizens’ feelings of belong-
ing to the EC’ (Calligaro 2013: 6). Heritage was valued as ‘a means of making this
European identity visible and accessible throughout… the EU’ (Calligaro 2013: pp.
89–90; Sassatelli 2009). The central strategy was promoting ‘unity through diver-
sity’—avoiding positing an EU identity as an alternative to other identities, espe-
cially national ones.
The Treaty framework both provides the legal base for EU action and at the same
time, expresses values.2 The Treaty of Rome gave no specific powers to the then
EEC over culture. However, the Maastricht Treaty changed this position. It set out
certain general aims and values. Its Preamble stated the objectives of its signatories
as ‘desiring to deepen the solidarity between their peoples whilst respecting their
history, their culture and their traditions’, and then Article 2(p) as providing ‘a con-
tribution… to the flowering of the cultures of the Member States’. It offered a non-
exhaustive definition of cultural heritage, which seemed to be very separate from
markets, notably through a reference to ‘non-commercial exchanges’ and greatly
expanded the European Community’s remit of action, although subject to ‘subsidi-
arity’. Thus Article 128(2) allowed ‘action by the Community …aimed at encour-
aging cooperation between Member States and, if necessary, supporting and sup-
plementing their action in the…: improvement of the knowledge and dissemination
of the culture and history of the European peoples; conservation and safeguarding
of cultural heritage of European significance; non-commercial cultural exchanges;
artistic and literary creation, including in the audiovisual sector’. It sought to ‘main-
stream’ culture as an objective across different policies and offered a general legal
basis for ‘incentive measures’.3
Subsequent Treaties maintained the wide use of the term ‘cultural heritage’ and
provided further powers. The Treaty of European Union (TEU) and the Treaty on
the Functioning of the European Union (TFEU) underlined the importance of ‘unity
in diversity’ as well as making an oblique reference to heritage in the sense of an
endangered past. Thus, Article 3.3 of the TEU states that the EU ‘shall respect its
rich cultural and linguistic diversity, and shall ensure that Europe’s cultural heritage
is safeguarded and enhanced’. The Maastricht Treaty provisions over the meaning
of cultural heritage were repeated in similar terms,4 underlining the non-economic

2
For a legal overview, see Smith (2015).
3
Albeit with constraints in terms of member state agreement and avoiding harmonisation—Articles
128(4) and 128(5).
4
Eg in the TFEU, Title XIII ‘Culture’ and Article 167, although it added “in particular in order to
respect and to promote the diversity of its cultures”.

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 M. Thatcher

features of cultural heritage as well as the complementary and non-rival relationship

of EU actions with the cultural heritage of member states. Legislation was permitted
for the achievement of these objectives.5
Thus since 1992, the Treaties have provided wider powers to EU institutions.
Equally, they make reference to a series of powerful non-economic values that are
usually regarded as fundamental to Western democracies. But in fact, even before
having a legal foundation, the Commission had begun to promote culture, often in
close cooperation with the European Parliament and operating in a discrete manner
in order to avoid national opposition. Activities began in the 1970s, notably with
the Declaration on European Identity issued at the Copenhagen Summit of mem-
ber states of December 1973, and then grew in the 1980s and 1990s (see Calligaro
2013, especially Chap. 2; and Shore 2000). Within the Commission, from the mid-
1980s under Jacques Delors, ‘culture’ was recognised as an explicit responsibility
and made part of a DG, initially that for Information and more recently usually the
DG for Education (e.g. the present DG is for Education, Culture, Youth and Sport).
The Commission has engaged in a wide range of activities from creating net-
works to offering education and supporting preservation of selected architectural
heritage sites and digitisalisation of heritage objects and cinema films.6 After 2000,
the diverse activities were brought together in broader programmes, the Culture
2000 programme and the ‘Cultural Programme’ for 2007–2013, followed by the
‘Creative Europe’ Programme for 2014–2020.
The most important, long-lasting activities and representative activities for poli-
cies to directly promote an EU identity have been those of creating EU public sym-
bols and labels.

Subcase of policies to develop an EU identity: Creating EU public symbols and labels

Policies to create EU public symbols and labels have been pursued in several guises.
Analysing the EU’s discourse of ‘placing’ heritage in the wider and diverse context,
Lähdesmäki (2016) identifies five forms or strategies: rewarding labels and awards
to sites, particularising cities, emphasising historical monuments, creating new
spaces and ‘iconizing European administrative buildings’. They began in earnest in
the 1980s.
Following the Fontainebleau summit of 1984 and then the Adonnino Report of
1985 which was entitled ‘A People’s Europe’ (Commission 1985), attempts were
made to create EU symbols to aid citizen identification, such as an anthem (Bee-
thoven’s Ode to Joy) and a flag. European Heritage Days were another initiative: on
the same day throughout Europe, usually in September, historic buildings and cul-
tural artefacts are made available for public viewing. This has been on-going since
1985 and was initiated by the Council of Europe, with the EU joining in 1999. In
addition, there are now European Cultural Routes, run jointly with the Council of

5
Article 167(5), former 128 in the Maastricht Treaty.
6
Europeana; for films, see http://ec.europa.eu/archives/information_society/avpolicy/reg/cinema/index
_en.htm.

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Europe, which provide paths and pilgrim routes.7 A ‘European heritage label’ has
been developed thanks to a Decision in 2011. It applies to heritage sites that are cho-
sen because they ‘celebrate and symbolise European history, ideals and integration’;
sites include Robert Schuman’s house or a museum for Alcide De Gasperi.8 EU Cul-
tural Heritage prizes/Europa Nostra awards have also been established, to ‘celebrate
excellence in cultural heritage work in Europe’.
The selection of ‘European capitals of culture’ is perhaps the best-known project
that involves labelling. In 1985, following an informal meeting of European min-
isters of Culture and in large measure at the initiative of the then Greek Culture
Minister Melina Mercouri, certain cities were named as ‘European cities of culture’
(see Patel 2013a, b; Sassatelli 2009: Chaps. 3 and 4). Initially, the programme was
highly inter-governmental, since the choice was decided by the Council of Minis-
ters, but after Decisions in 1999 and then 2006 (EC 1999 and 2006), the EU dimen-
sion increased, with both national and EU-nominated actors participating.9 Member
states can nominate cities and the final selection is made by the Council of Min-
isters. The criteria are divided into a ‘European dimension’, including ‘highlight-
ing the richness of cultural diversity in Europe and bringing the common aspects
of European cultures to the fore’ and the criteria of ‘City and citizens’, which relate
to the participation and cultural and social development of the city (Article 4, EC
2006).
The strategy of creating an EU identity through public symbols and labels has
had some results. Symbols such as the EU flag may become part of ‘banal Euro-
peanness’ as they are ‘taken for granted’ (Cram 2009, cf. Billig 1995). In terms of
numbers, it is estimated that up to 20 million people take part in European herit-
age days, representing around 5% of the total population of the countries belonging
to the Council.10 More than 50 capitals of culture have been named since 198511
and selection has been a significant element in strategies to develop and regenerate
certain cities such as Glasgow (1990), Lille (2004) and Liverpool (2008) (cf. Patel
2013a, b).
However, with respect to the top-down building of an EU policy identity (as dis-
tinct from other forms of identity creation, such as through citizen participation), the
‘unity in diversity’ strategy of public symbols and labels has suffered from impor-
tant limitations. In terms of articulating certain values as fundamental, the claims
made for EU symbols have relied on concepts such as ‘democracy’, a ‘common
European heritage’, the ‘rule of law’ or ‘respect for human rights’ (cf. Shore 2000:
Chap. 2). Thus, for instance, the Preamble to the TEU and TFEU states that signa-
tories act ‘drawing inspiration from the cultural, religious and humanist inheritance

7
http://www.culture-routes.lu/php/fo_index.php?lng=en.
8
For the list see http://ec.europa.eu/programmes/creative-europe/actions/heritage-label/discover_en.htm.
9
There are national selections, which involve panels of which 6 members are nationally designated and
7 are designated by EU institutions (two by European Parliament, Commission and Council of Ministers
and one by the Committee of the Regions) and chaired by one of the EU-nominated members.
10
http://www.europ eanhe ritag edays .com/Home/Conte nt-page.aspx?id=33da6 73f-1180-4d50-ab55-
db80f6b13d15. Accessed 4 July 2015 and http://www.ecml.at/Portals/1/800_millions_en.pdf.
11
See http://ec.europa.eu/programmes/creative-europe/actions/capitals-culture_en.htm.

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 M. Thatcher

of Europe, from which have developed the universal values of the inviolable and
inalienable rights of the human person, freedom, democracy, equality and the rule
of law’. But these terms are very abstract and not necessarily the preserve of the
EU (Calligaro 2014). Within the EU, these values have faced competition from oth-
ers, such as economic growth and utility, including in cultural heritage (Schlesinger
2018; Bruell 2013; see also below).
In terms of a set of values shared across the EU, the meaning of ‘European herit-
age’ has largely been left undefined. There is no overarching EU legal definition of
cultural heritage. The Maastricht Treaty suggested that the EU was to ‘contribute to
the flowering of the cultures of the Member States, whilst respecting their national
and regional diversity and at the same time bringing the common cultural heritage
to the fore’ (s1). But it did not define ‘the shared heritage’ (in the singular) and
instead put it side by side with diversity. The Treaties offer only a non-definitive
indication of ‘cultural heritage’ that includes artistic creations, languages and his-
torical knowledge. Instead, the Commission provides specific areas and examples,
including architectural and archaeological heritage, artistic objects, traditional skills
and crafts, and audiovisual work and immaterial heritage such as languages and tra-
ditions of food and wine (e.g. Commission 2014b, 2017). This is more of a list of
rather diverse objects and practices than a coherent definition, making it difficult to
find EU-wide values that can be communicated.
Perhaps the greatest difficulty of the ‘unity in diversity’ strategy for EU iden-
tity building has been the lack of differentiation from other European identities (cf.
Shore 2000). The European Commission has claimed that ‘there is no contradic-
tion between national responsibilities and EU action: heritage is always both local
and European’. (Commission 2014b: 3). Yet many symbols seem linked to Europe
in general and/or member states rather than the EU in particular—hence their EU
distinctiveness is difficult to discern. Several of the EU’s symbols and labels are pre-
sented as ‘European’ rather than ‘EU’ and belong to non-EU members as well as EU
ones—e.g. the heritage days and capitals of culture. Indeed, several were initially
created by the Council of Europe, not the EU which adopted them later. Equally,
labels of European heritage are more likely to be associated with national or subna-
tional identities than the EU. Inclusion of the many and varied traditions of member
states as well as the local and regional level within a ‘European identity’ leads Calli-
garo to argue that the strategy should be seen as promoting Europeanness rather than
a single European identity (Calligaro 2013; cf Lähdesmäki 2012, 2016).
Several factors can be adduced to explain the limits faced by the Commission’s
strategy of directly creating a political identity through symbols and labels. One may
be limited legal powers, with EU action after 1992 being subject to subsidiarity.
However, it is noteworthy that the Commission began policies well before any legal
powers were given under the Treaty. Equally, those powers were greatly increased
after 1992 and were stated in broad terms that could allow much interpretation and
scope for Commission action.
Another factor may be that the boundaries and aims of cultural heritage are
not clearly stated. This is exemplified within the Commission by Culture being
part of a package of responsibilities given to Commissioners—e.g. Education,
Culture, Youth, Media and Sport, 1999–2004, Education, Training, Culture and

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Multilingualism after 2004, or Education, Culture, Youth and Sport today. Whilst
ambiguity and avoidance of explicit objectives may have aided ‘covert integration’
or ‘integration by stealth’, as the Commission pursued actions whose legal base was
weak and then which might have aroused opposition (cf. Calligaro 2013: Chap. 2;
Shore 2000), they reduced the strength of an EU policy identity.
But perhaps the most important constraint has been the lack of a coalition of
powerful supporters. Within the Commission, culture has not been a powerful direc-
torate general. It has not enjoyed its own DG and has instead been combined with
education, another domain in which the EU has few legal powers. Commissioners
for Culture have rarely been drawn from large powerful member states.12 In contrast
to other domains such as regulation of markets and general competition policy, the
Court of Justice has played very little direct role, with few legal cases and rulings.
Equally, culture ministers in the Council are frequently not the most powerful mem-
bers of their national governments and also often have a combination of responsi-
bilities, frequently including the media and/or education.
Relations with member states and other European bodies have also limited the
emergence of a specific EU identity. Labelling a building, artistic object or food
‘EU’ offers few advantages to actors within member states. It may meet strong oppo-
sition if it appears to conflict with other discourses and narratives that link to local,
regional or national identities, or to claims that heritage was of ‘European’ impor-
tance (as distinct from being EU heritage). National governments have given promo-
tion of an EU cultural heritage identity low priority. They have kept EU spending
on specifically cultural heritage programmes very small (e.g. the 2007–2013 Cul-
tural programme funded 130 projects in cultural heritage with c€40 m). They have
also blocked some EU initiatives. Thus, for instance, they prevented the creation of
‘European rooms’ in national museums (Patel 2013b: 6); although just one example,
it is illustrative of the limits on EU policy making.
It has been difficult for the Commission to separate the EU from general Euro-
pean cultural heritage or appropriate the latter. This is illustrated by the role of the
Council of Europe in some aspects of cultural policy such as European heritage
days. Equally, the importance of attracting supporters in member states is shown by
the most prominent and perhaps successful symbolic initiative, namely the Cities of
Culture. The leaders of European cities have been participants in initiatives such as
the selection of cities and given strong support. But it is noteworthy that the label is
‘European’ rather than ‘EU’, that achieving it has offered material advantages based
on promoting local identity, and finally, that the emphasis within the programme
has increasingly become the economic benefits of the programme (Sassatelli 2012),
which offers an example of the second type of policy pursued, namely linking herit-
age with markets.

12
Viviane Reding from Luxembourg was the Commissioner responsible for Education, Culture, Youth,
Media and Sport, 1999–2004, whilst Jan Figel was Slovakia was Commissioner for Education, Train-
ing, Culture and Multilingualism 2004–2009,12 succeeded by another Slovak 2009–2010 and then by
Androulla Vassiliou from Cyprus 2010–2104. The present Commissioner for Education, Culture, Youth
and Sport is Tibor Navracsics from Hungary.

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 M. Thatcher

Governing cultural heritage and markets

Limiting, linking and creating economic markets in cultural heritage

The EU’s second set of policies concern the economic aspects of cultural heritage.
Their foremost explicit aims have been to govern markets and contribute to eco-
nomic growth rather than create an EU political identity which therefore arises indi-
rectly through processes such as EU institutions defining aims and values and setting
out priorities.
Historically, cultural heritage policy was seen as normally operating outside mar-
kets and market mechanisms. Insofar as markets intruded, attention was focused
on ‘l’exception culturelle’—the ways in which culture should be protected through
exceptions to rules about competitive markets. One prominent example was the
audiovisual sector, especially in international trade negotiations. Another was state
aid rules, for which the Maastricht Treaty altered the law: it accepted as compatible
with the internal market ‘aid to promote culture and heritage conservation where
such aid does not affect trading conditions and competition in the Union to an extent
that is contrary to the common interest’ (then 92(3)d, now Article 107(d) TFEU).
Hence cultural heritage was seen as sufficiently valuable to be balanced against the
usual losses to the ‘common interest’ from state aid. These provisions were clarified
and widened (to include natural heritage) in 2014 (Commission 2014a).
However, linkage of cultural heritage and markets grew, especially after the
Lisbon Strategy of 2000, as part of debates concerning competitiveness, develop-
ment and markets (Littoz-Monnet 2012). The Commission, and more specifically
DG Education and Culture, began to switch justifications for EU action away from
underlining the specificities of culture that required non-market policies towards a
strategy of arguing that culture brought economic benefits and could be combined
with markets.
Thus, for instance, a Commission Communication in 2007 explicitly sought to
‘underline the value of culture, including heritage, for economic growth and the Lis-
bon strategy as well as international relations and dialogue (Commission 2007: 3).
The 2014–2020 Creative Europe programme saw an even more marked turn towards
economic objectives (Littoz-Monnet 2015; for highly critical views, see Schles-
inger 2018; Bruell 2013). Its aims were to ‘strengthen competitiveness in the cul-
tural and creative sectors, by strongly focussing on capacity building measures and
support for transnational circulation of cultural works’ as well as safeguarding the
EU’s ‘legal obligations regarding the safeguarding and promotion of cultural and
linguistic diversity’. Key justifications also included ‘ensuring a more level playing
field in the European cultural and creative sectors’ and wider economic growth as
the ‘approach recognises the important contribution these sectors make to jobs and
growth… they trigger spill-over in other sectors of the economy such as tourism
and fuelling content for ICT’ (Commission 2011: 2). Equally, a 2014 Communica-
tion underlined the direct and indirect economic value of cultural heritage thanks
to its impact on other sectors (Commission 2014b). The Commission linked herit-
age to the tourist industry—for instance, the 2006 Decision about Cultural Capitals
included the need to develop ‘culture and tourism’, whilst Commission documents

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underlined that heritage aided tourism which is one of Europe’s largest and growing
sectors (Commission 2017). Spending became increasingly connected to other pro-
grammes that had wider aims, including economic development. Thus the Creative
Europe programme was broad, with culture being a subprogramme, whilst cohesion
policy now includes a cultural heritage element, seen with the European Regional
Development Fund allocating almost €6B for different forms of culture (Commis-
sion 2017: 10).
A case that illustrates the combination of the application of general market prin-
ciples, the presence of both economic and non-economic aims and issues of defin-
ing and protecting cultural heritage is cross-border trade in artistic objects. It shows
how EU policies that shape economic market can also indirectly contribute to an EU
identity.

Subcase study of markets and heritage: regulation of cross-border trade in artistic

objects

The Treaty of Rome included an exception to free movement of goods for ‘the pro-
tection of national treasures possessing artistic historic or archaeological value’,
although it also stated that ‘prohibitions or restrictions shall not, however, consti-
tute a means of arbitrary discrimination or a disguised restriction on trade between
Member States’ (Article 36). But the issue was not prominent and many countries
passed or maintained existing legislation on art exports.
However, with the removal of physical border controls and the internal mar-
ket in the 1990s, plus the internationalisation of the art market due to electronic
technology which facilitates cross-border sales (e.g. through electronic viewing
and bidding) and the expansion of large internationalised auction houses, debates
on creating EU regulation grew. Member states accepted the need for EU legisla-
tion but differed about its content and extent. ‘Art source’ or exporting countries
such as Italy and Greece pressed for stronger restrictions than art acquisition or
importing ones such as the Germany, Belgium, The Netherlands and most of all the
UK (Viantro 1993). One issue concerned the length of the statute of limitations—
i.e. how long after an object has been illegally exported under national law does
it remain an illegal export—with source countries pressing for longer periods than
acquisition ones. Another was the scope of any legislation—for instance, whether
ecclesiastical objects were covered. A further question was the power of national
courts. Finally, there were issues about restitution: countries were divided between
civil law ones where sellers of stolen or illegally obtained goods acting in good faith
can pass ‘good title’ and common law ones where this is very difficult, notably the
UK (Viantro 1993). These issues concerned both the market within Europe and also
exports outside the EU.
Following debates and after having obtained agreement among member states,
the EU passed two pieces of legislation in the early 1990s. Their provisions can be
analysed to examine political identity creation.

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 M. Thatcher

One was the 1992 Council Regulation on the Export of Cultural Goods, which
established an export certification system (Peters 2016).13 Export certificates are
issued by the country of origin but are valid throughout the whole of the EU. Hence
a form of EU-wide but nationally based export system was created. In order to define
the parameters of licensing, the legislation sets out categories for cultural goods,
notably in terms of type (ranging from archaeological objects to books, maps, toy
games, photographs and wallpaper) and age (mostly 50 or 100 years); it then applies
minimum monetary values for different categories.14 However, a licence can be
refused ‘where the cultural goods in question are covered by legislation protecting
national treasures of artistic, historical or archaeological value in the Member State
concerned’ (Article 2).
The second piece of legislation was Council Directive on the Return of Cultural
Objects Unlawfully Removed from the Territory of a Member State.15 It set up pro-
cedures for the return of objects unlawfully removed from the member state accord-
ing to the national laws then in force. To do so, it defined ‘cultural objects’ (using
the categories used in the 1992 Regulation on exports of cultural goods). It con-
tained provisions that gave considerable place to national laws and decision mak-
ers. Thus legal action had to be undertaken by the member state rather than private
individuals within a 1-year time limit from when the member state became aware of
the location of the object and its possessor; the national court of the member state
in which the object is located makes rulings about restitution, and decides compen-
sation to the holder of the object; the requesting member state had to pay the sum
unless it could show that the purchaser had not taken ‘due care and attention’. Under
EU rules member states were therefore highly dependent on others for policing their
domestic protections on exports (Peters 2016).
The 1993 Directive was assessed by a series of reports by the Commission which
pointed out its limitations (Commission of the European Communities 2000, 2005,
2009), followed by the establishment of a working group that included representa-
tives of member states. Thereafter, a Commission review and public consultation
took place in 2011 that looked at alternative measures, including adopting the 1970
UNESCO convention on the Means of Prohibiting and Preventing the Illicit Import,
Export and Transfer of Ownership of Cultural Property (Górka 2016). The Com-
mission decided to develop the EU’s existing framework, embodied in a new Direc-
tive in 2014 (2014/60/EU). The 2014 Directive went considerably further than the
UNESCO convention and instead drew on a 1995 convention on stolen or illegally
exported cultural objects drawn up by the International Institute for the Unification
of Private Law (UNIDROIT), an independent organisation based in Rome (Schnei-
der 2016). In particular, the 2014 Directive broadened the scope of the objects cov-
ered to ‘the ‘national treasures possessing artistic, historic or archaeological value’

13
It was codified by Regulation 116/2009, which also made provisions directly applicable but their con-
tent was largely left unchanged.
14
The Annex to the Directive establishes fourteen categories of objects which qualify as national treas-
ures from archaeological ones to pictures, sculptures and archives.
15
Directive 93/7/EEC- OJ L74/74.

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under national legislation or administrative procedures within the meaning of Arti-

cle 36 TFEU’ (Article 2), removing category and financial limits. It also increased
time limits to request return (to 3 years) and set up an inter-member state informa-
tion system. Importantly, it reversed the burden of proof so that acquirers now have
to show good faith to be entitled to compensation.
Whilst debates and decisions on the regulation of cross-border art markets con-
cerned economic exchanges, they also involved features that relate to policy identity,
notably definitions, values and aims. Certain cultural values have been articulated
as taking priority over normal EU market rules. In particular, returning illegally
exported cultural property has been given great significance relative to other values
such as the free movement and private ownership of goods. Thus the 1993 Direc-
tive boldly stated that its objective was ‘to ensure the physical return of the cultural
objects to the Member State from whose territory those objects have been unlaw-
fully removed… irrespective of the property rights applying to such objects’ (Pre-
amble, paragraph 8). Equally, in analysing the need for further changes after 2000,
the Commission underlined the combination of protection of ‘national treasures’
with economic aims; for instance, it argued that the directive had ‘the aim of recon-
ciling the operation of the internal market with a guarantee for the Member States
that their cultural objects with the status of national treasures….will be protected’
(Commission 2009: 3).
Although national laws specify what is categorised as a ‘national treasure’ and of
course vary across member states, a degree of EU-wide definition has been offered.
Thus, for instance, categories were established in the 1997 Directive and there have
been discussions of a move towards an EU-wide definition of objects to be protected
(European Parliament 2013). Although the EU incorporated national definitions
of ‘treasures’, the legislation often differs considerably from national frameworks
(for instance, in giving legal force to overseas definitions of treasures or through
its provisions on ‘good faith’ purchasers) that point to a distinct set of EU values.
Hence the EU categorisation has gradually become separate from national defini-
tions and rules, offering a degree of differentiation from member states. Equally,
EU legislation for cultural objects involves adaptation of general rules and values
on free movement, the rights of private property and restrictions on state action. The
requirement on member states to enforce the differing legislation of other member
states is particularly noteworthy. Thus internally, EU rules on the export of national
treasures embody a distinctive set of values.
Externally, EU restrictions on art exports stand in contrast to those of other poli-
ties, especially the USA. John Merryman (1986) distinguished between ‘national-
ist’ and ‘internationalist’ approaches to trade in cultural objects—the USA is close
to the latter whereas the EU is closer to the former. Moreover, the EU did not just
adopt the 1970 UNESCO convention but developed its own rules which are sharper
and more far-reaching.
Policies for cross-border trade in art exports thus have several features that are
exceptions to or adaptations of strong and well-specified market rules, includ-
ing those of the EU internal market, such as protection of private property or free
movement of goods. Justifying and articulating those provisions has aided the devel-
opment of the EU’s policy identity—notably setting out explicit aims and values

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 M. Thatcher

through definitions and rules that apply across the EU and are distinctive with
respect to those of member states and other polities.
Being able to craft specific rules for cultural heritage can be linked to several
factors. One is the legal framework. Certainly Article 36 of the Treaty of Rome pro-
vided an important exception to usual market rules. Yet the Article had existed since
1958 without any action being taken.
What changed from the 1990s onwards was the context-especially the single mar-
ket in the 1990s and the Commission’s strategy of combining non-economic aims,
notably such as preventing the export of prized national objects, with economic ones
such as creating a EU-wide art market that had rules about ownership. The Commis-
sion was able to point to the need for improving the smooth running of the single
market, in arguing for the original 1993 directive and for the 2014 revision (Com-
mission 2013b: 7). Crafting rules for cultural heritage in the single market required
specificity—for instance, in legal definitions and in discussion and decisions about
exceptions to general market rules.
A further factor concerns support from member states. EU elements (e.g. protect-
ing cultural heritage over the property rights of an innocent acquirer) are combined
with national elements such as nationally defined treasures or the initiative for action
lying with member states. The coupling has aided the Commission to assemble a
coalition of supporters, notably public bodies in member states. Commission docu-
ments made repeated references to the desire of member states to increase the effi-
cacy of the EU-wide system. Thus, for instance, in revising the 1993 Directive, it
pointed to ‘the repeated demand made by representatives of the Member States for
effective arrangements for the return of cultural objects classified as national treas-
ures’ (Commission 2013b: 9), as well as the group of national experts set up under
the open method of coordination who looked at how to reform the system (e.g.
Commission 2005: 6–7; Commission 2009: 5–6; Commission 2013a: 5–6, 2013b).
Indeed, the Commission enjoyed the support of national experts, national authori-
ties for culture, national governments such as Germany, and also the European Par-
liament, for strengthening provisions (Górka 2016; Peters 2016). It is noteworthy
that the 2013 Consultation revealed that a majority of public organisations sup-
ported change, whereas only a minority of private ones did (cf. Commission 2013b:
4; Górka 2016). The advantages of creating and shaping the market for art exports
combined with important national elements led member states to find compromises
between art exporting and art importing countries and also civil and common law
ones.

Conclusion: the EU’s path to political identity in EU cultural heritage

policy

The EU has recognised the dual character of culture and its importance for political
identity. Its role in cultural heritage has indeed expanded since the 1970s.
But, important limitations on creating an EU policy identity can be seen. They
are particularly evident in policies explicitly aimed at creating an EU political
identity. Following the criteria set out in the Introductory essay (Saurugger and

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Direct and market governance paths for the creation of an EU …

Thatcher 2019, this issue), articulation of specifically EU values as fundamental and

shared across the EU has been weak, as has differentiation from the values of other
polities, notably member states or Europe as a whole. The EU’s identity in this field
has been an attempt to ‘piggyback’ on different national and subnational identities
as well as initiatives that are Europe-wide but not confined to the EU.
Whilst policies that link cultural heritage and markets have also faced constraints,
notably the need to adopt diverse national definitions and tensions about the rela-
tionship between cultural heritage and markets, they have been stronger in terms
of top-down creation of an EU policy identity. This is especially visible in terms of
exceptions to, or adaptations of, general rules about markets. Thus definitions of key
matters such as what constitutes cultural heritage and why it is treated differently
from many other sectors, are more specific and concrete compared with the abstract
values and concepts used in the TEU/TFEU about cultural heritage or the lack of a
list in the Commission’s activities to directly promote cultural heritage. Market rules
offer definitions that apply across the whole of the EU and have greater differentia-
tion from those used by member states or other polities such as the US. Seeking to
combine markets and protection of the specificities of cultural heritage—its ‘dual
nature’—has led to greater articulation of distinctive values and hence a stronger EU
policy identity.
In terms of explanatory factors for the patterns found, institutional factors such as
the weaknesses of DG Education and Culture have been longstanding and apply to
both subcases. The legal Treaty basis for EU policy making in cultural heritage has
grown greatly since 1992. However, linkage to the single market has been important,
as creating and shaping market rules has involved defining terms, as well as debat-
ing and deciding how to balance or combine the dual nature of cultural heritage.
Equally, the analysis suggests that a key factor in explaining the differences between
the two subcases relates to the Commission’s ability to build broad coalitions, espe-
cially with member states and national actors. Further research is needed to inves-
tigate the explanatory factors and to compare the domain with others which have a
‘dual nature’ such as education, welfare or justice.
Cultural heritage is an important part of political identity. But it may also shed
light on other empirical and theoretical issues. In particular, it may aid in analysing
the EU’s path to a political identity. The literature on cultural nationalism has under-
lined the importance of heritage and related domains such as education, in nine-
teenth-century nation building, by creating ‘imagined communities’ through a host
of means such as symbols, commemorations and myths. The study here suggests
that EU is following a different trajectory, in which its political identity is strongest
when linked to market making.
If the conclusions from cultural heritage apply to other domains, they point to the
constraints on policies to directly create an EU political identity, notably when using
a ‘unity in diversity strategy’. In contrast, the governance of markets may produce
greater effects on policy identity, including through establishing exceptions to rules
about competition, private ownership and free movement. However, market making
and shaping are often technical. They lack the popular appeal or participation of
symbols and labels such as, for instance, heritage days. Perhaps herein lies a para-
dox for EU political identity construction: it is limited, even for policies that aim at

141 Reprinted from the journal

 M. Thatcher

directly creating an EU heritage, which require relatively limited expenditure and

have seen enhanced legal competencies. It is stronger in market making and shaping.
But for citizens such activities are often difficult to understand and identify with.
Market governance offers the EU a path to a distinctive set of articulated values, but
its processes and content may have limited popular appeal.

Acknowledgements I would like to thank discussants of earlier versions of this paper at workshops at
the Centre d’Etudes Européennes, Sciences Po and SAIS, John Hopkins University Bologna, including
Sophie Jacquot and Pauline Ravinet for their support and also two reviewers of the present article.

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Publisher’s Note Springer Nature remains neutral with regard to jurisdictional claims in published
maps and institutional affiliations.

Mark Thatcher is Professor of Political Science at Luiss University, Rome, and visiting professor, London
School of Economics.

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Comparative European Politics (2019) 17:603–618
https://doi.org/10.1057/s41295-019-00176-3

ORIGINAL ARTICLE

Understanding the identity of a policy field: the European

Commission and liberal modernization in the domain
of labour and social policy

Georg Menz1

Published online: 29 March 2019

© Springer Nature Limited 2019

Abstract
In congruence with the theme of this special issue, this paper clarifies the contri-
bution the identitarian turn in European Union (EU) studies can make to the field.
The paper explores the policy domain identity of the European Union social and
labour market policy. It argues that over time, this identity has shifted considerably.
Starting in the 1990s, when the Delorsian re-regulatory policy orientation slowly
dissipated in favour of a more market-oriented approach in line with the so-called
pink turn of centrist Social Democratic parties, the identity has undergone a num-
ber of changes. In the 2000s, the predominant identity was clearly liberal in nature,
shaped by the Lisbon Agenda and a faith in the welfare-creating powers of deregu-
lated market capitalism. By the 2010s, there was clear pushback against this image,
and throughout this decade, the policy domain identity has lingered and struggled to
assume a more concrete orientation. This slightly muddled and unfocused identity
is in part to blame for the period of stagnation in further strides, whilst criticism of
Commission overreach and intra-EU immigration have created a momentum against
additional activity in this field.

Keywords European Union labour market and social policy · Constructivism ·

Identitarian turn · Identity · Liberal modernization

Past scholarly efforts have paid scant attention to the identity of a given policy
domain at the European Union (EU) level. A prevailing assumption in European
studies has been that policy output is shaped by the interplay of interests and insti-
tutions. Thus, much of the scholarly debate on European integration in the 1990s
focused on the relative influence of the member states versus the European insti-
tutions in determining the outcome of European-level decision-making (Moravcsik

* Georg Menz
[email protected]
1
Old Dominion University, Norfolk, USA

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 G. Menz

1993; Hix 1994). But this debate, which has now reached somewhat of a stalemate,
had little to offer regarding the dominant identity of individual policy fields. In
line with the introduction to this special issue, we will explore ‘how and why …
EU …institutions [have] created an EU political identity and … the content of that
identity’ (p. 2). The identity itself and its construction will be studied ‘through the
policymaking process’. What does the identity of any given policy field look like
and what shapes it? How is identity constituted and what factors conspire to affect
change?
This article examines the identity of the policy domain of labour market and
social policy at the EU level. It argues that the identity of a given policy domain is
shaped by the Commission which looks to the member states for inspiration and ide-
ational cues. Thus, we are ‘looking at the construction of the EU’s political identity
by one group of collective elite actors, namely EU organizations in policy-making’
(p. 3). The Commission endeavours to create a palatable identity associated with
such policy domain that makes future policy initiatives in line with such brand more
palatable to member states and thus politically easier to implement. This identity
is constructed by the Commission ‘in.. [its] activities of policy making’ (p. 5) and
thus can be analysed by studying such activities accordingly. In crafting identity, the
Commission needs to pay heed to prevailing and popular ideological cues, terms
and expressions, narratives and ideas. It is much easier to forge an identity based on
ideational elements that are circulating among member states elites than to attempt
to create it de novo. The introduction to this special issue proposes a definition of
such identity that articulates core norms in a carefully curated fashion (p. 7).
Policy domain identity is thus actively shaped for strategic reasons and with a
view to facilitate policymaking. In the 1990s, the European Commission skilfully
crafted a brand associated with labour and social market policy that coalesced
around Social Democratic ideas of re-regulation, worker rights and equality in the
work place. However, in the following decade, such identity appeared out of tune
with prevailing policy ideas among member states. The new identity floated thus
reflected concerns over inclusion into the labour market, active labour market pol-
icy, and liberal market-friendly policy initiatives. The identity of this policy domain
was one of liberal modernization. In the 2010s, it became difficult to craft an iden-
tity that was both encompassing enough to convey the sense to all of the 28 mem-
ber states that national ideas were reflected, yet also cohesive enough to facilitate
policymaking. Empirically, this article draws on policy output created in this field
since the mid-1990s. It is organized into three sections. In the first segment, we shall
explore the ‘identitarian’ turn in EU studies, clarifying the argument put forward
here and outlining how it fits into the theme of this special issue. Secondly, we will
examine the chief argument submitted here against the available empirical evidence,
according to which the Commission develops and deploys an identity for certain
core policy domains for strategic purposes. Thirdly, we discuss how the long-term
effect of EU eastward enlargement, Brexit, and the increasing institutional diversity
of European labour markets will likely deflate EU activity in this domain in years to
come, because any coherent identity will be difficult to design and uphold. A brief
conclusion summarizes this article.

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Understanding the identity of a policy field: the European …

The identitarian turn in EU studies

Past contributions to the scholarly debate on European integration in the vein of

constructivism emphasized the ideational and normative underpinning behind
key decisions by individual member states, thus questioning the validity of purely
rationalist approaches (Jabko 1999; Parsons 2002). Ideas and ‘soft’ factors, such
as values and norms, matter a great deal in reaching decisions that cannot be
accounted for in purely rationalist terms (Goldstein and Keohane 1993; Evange-
lista 1999). They provide the ‘glue’ for conceiving, justifying, and implementing
policy that is otherwise very hard to find approval for. Ideas can thus be used in
an instrumental fashion to secure political acceptance (Blyth 2002; Abdelal et al.
2015). They serve as inspiration for particular policy directions taken, for exam-
ple the monetarist turn that was enshrined in the European context by attaching
certain preconditions to membership in the Eurozone (McNamara 1998). This
ideational turn in international relations has focused on major turning points, but
has never been fully exploited to account for more gradual and long-term oriented
changes in identity to a policy field. This is precisely the direction this article and
the special issue are pointing towards. Whilst past contributions to the scholarly
debate focused on the effect European integration had on the identity formation
of Europeans (Fliegstein 2008; Checkel and Katzenstein 2009) and how employ-
ees of the European institutions found their identity to be transformed (Hooghe
2005), no previous scholarship has addressed the identity of policy domains at
the European level themselves. The closest existing contribution is the concept
of ‘normative power Europe’, developed by Ian Manners (2002) who argued that
the EU radiates influence and ‘soft power’ by virtue of what it is, rather than what
it does. But empirically he clearly focused on the impact of EU influence beyond
Europe. Exploring the ways in which identity of a policy domain matters is thus a
genuinely novel and exciting enterprise, which is precisely what the special issue
this article forms part of it wishes to address.
The claim I wish to submit is that identity formation of a policy field can be
pursued in a strategic fashion to help secure political acquiescence. The European
Commission is a skilful political operator that creates a certain positive identity
associated with a given policy field that renders a given ideological turn both
more attractive and palatable. In doing so, however, it needs to display acumen
and awareness of prevailing concepts, ideas and ideological currents that pre-
dominate at the member state level. Such strategic considerations are thus akin
to some of those employed by policy entrepreneurs, though in the voluminous
literature on this concept (inter alia Baumgartner and Jones 1993; Kingdon
1995) no consideration is given to considerations of identity formation regard-
ing policy outputs. Crafting a new identity that departs from some predominant
national concepts in a limited number of member states is viable, but creating a
policy identity out of touch with influential ideational currents in the majority
of member states defeats the purpose of the whole enterprise. Such image woe-
fully detached from the dominant zeitgeist will not only not aid in the smooth
advance of fresh policy initiatives, but may, in fact, act as an impediment. The

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 G. Menz

careful design of an identity of a policy domain can thus be deployed as a stra-

tegic tool to goad along member states into a direction they may be inclined
towards, but hesitate to embrace fully. One constructivist tenet is the use of lan-
guage and discourse (Schmidt 2008) in justifying and thus rendering more palat-
able policy reform. My argument focuses less on language per se and much more
on the image created surrounding a certain policy domain, though there is also an
instrumental element about this exercise. The Commission enjoys informational
advantages flowing from a bird’s eye perspective. It can thus create an overarch-
ing theme as the core tenet to a policy identity, but it needs to be cognizant of
member state positions and can cajole and shape but not impose an identity on a
policy field. The policy entrepreneurship literature similarly recognized that good
and successful entrepreneurs identify political inclinations and widely appeal-
ing policy positions that have previously been neglected and capitalize on them
(Mintrom and Norman 2009), but they do not operate by pure brute force.
It is beyond the scope of this paper to examine whether the core identity of a
given political institution might affect policy output in ways that reflect a certain
prism on the understanding of the policy domain this institution is tasked with regu-
lating. Instead, the task is to explore the identity of policy output, that is to say, the
contours of a given policy domain. I conceptualize policy domain identity as a stra-
tegic tool that can be shaped and deployed by political actors with a view to facili-
tate policymaking and lend a sense of direction and coherence to a given direction
in policy change. We are interested here in the Commission as the principal actor
and the member states as recipient audience. Identity is a policy tool used for stra-
tegic purposes, but it also offers a coherent conceptual core that is meant to inspire
and allow policy actors to identify with. To use a recent fashionable term, an iden-
tity can be interpreted by the target audience as having spawned a ‘narrative’ that
can bring political actors together, unite them for a common purpose, and help lend
meaning to a policy agenda. For reasons of space constraints, I will also refrain from
commenting on the identity of the EU in general during different periods.
Methodologically, correctly making out policy identities of policy domains is not
without its challenges. Attempts at reading off this identity from policy output are
not a straightforward exercise. There is a lot of ‘noise’. Conflicting signals might
well frustrate attempts at discerning patterns in the policy output generated. Yet
careful empirically driven deductive research can unearth the identity of a policy
domain that a dominant institution wishes to craft and project. By forensically exam-
ining policy output and the public-facing image of policy output, the identity of a
policy domain can be re-constructed. This is the exercise this article undertakes. In
so doing, it wishes to fill a niche in the EU studies literature and encourage future
scholarship on the identity of policy domains and help shape our understanding of
strategic tools EU institutions deploy. Governmental and quasi-governmental insti-
tutions cannot simply impose new policy styles at will. They will attempt to cre-
ate favourable images of policy fields in which new initiatives are planned to help
facilitate new policy directions. However, there are also limits and impasses to such
strategy. It may at certain stages prove difficult or even impossible to generate iden-
tities that are appealing enough. Alternatively, the positions of member states might
be so disparate as to render any attempt at cohesive policy domain identity flawed.

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Understanding the identity of a policy field: the European …

The strategic creation and promulgation of policy domain identities should thus be
regarded as merely one strategic tool, but it is by no means a panacea, nor can it
be detached from historical contingencies that may well impede or even arrest alto-
gether such strategy.

Advancing labour and social policy via policy domain identity:

the 1990s

The European Commission emerged from the decade of the 1980s with a somewhat
mixed track record in labour market and social policy. The conservative British gov-
ernment had consistently blocked major new initiatives. The Commission had put
no real effort into crafting a policy image, assuming that the inherent appeal of new
initiatives that followed on from the 1970s strides in health and safety at work would
suffice to sway the member states. That was not the case in practice (Geyer 2000).
British PM Margaret Thatcher expressed concern over excessive and statist top-
down re-regulation of the British labour market via the European backdoor, essen-
tially leading to a reversal of the labour market deregulation her government was
implementing during the 1980s.
The fundamentally liberal nature of the Maastricht Treaty marked a major depar-
ture from the more statist approach to policymaking and organized capitalist model
the EU appeared to embrace. Jacques Delors, who took over as President of the
Commission in 1985, famously posited that ‘you cannot fall in love with a mar-
ket’. European citizens, he feared, would reject a technocratic and seemingly cold-
hearted project that might promise new jobs and economic opportunities, as out-
lined in the Cecchini report, but would be hard to embrace viscerally. Also, Delors
was well aware that the deregulatory impact of the Maastricht Treaty would lead
to economic upheaval, dislocation and job losses. His vision of a Social Europe
was to complement and buffer the more liberal elements of the Single Market cre-
ated in Maastricht. With the benefit of hindsight, the degree of ‘positive regulation’
(Scharpf 1997) was nowhere near as developed as the deregulatory or ‘negative’
effect of closer European integration. Yet Delors was hopeful that a new momentum
of Social Democratic re-regulation of European labour markets could be achieved.
This inspired great expectations among some on the Left, which entailed a north-
ern European-style neocorporatist-inspired emulation of Social Democratic labour
market policy for the whole of Europe. Such hopes went largely unfulfilled (Falkner
1998). ‘Social Europe’ proved somewhat of a mirage (Crespy and Menz 2015). The
European Commission was complemented by an Economic and Social Council from
the early 1990s onwards and was required to consult (but could ultimately disregard)
the European-level umbrella associations of both trade unions and the employer
associations. Whilst neocorporatist-inspired in appearance, the consultation was and
is not legally binding and thus the input role that the social partners could provide
was ‘neovoluntarist’ (Streeck 1995). In no way did it replicate in substance the much
more powerful role played by these organizations in northern and central continen-
tal Europe. Throughout this era, the Commission embraced a Social Democratic re-
regulatory identity for its social policy.

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An erstwhile member of the socialist French government of Francois Mitter-

rand, Delors, correctly gauged the prevailing sentiments among continental Euro-
pean governments that were keen to be assuaged by an identity that stressed a social
component to complement the more liberal elements of the Maastricht Treaty. Such
evidence could then be used to address domestic anxieties regarding an excessively
radical departure from the statist ‘embedded liberal’ models of organized capitalism
in Europe. Crafting an image of a new attempt at centre-left coloured re-regulation
of labour markets seemed in tune with the somewhat uneven embrace of economic
liberalism in Germany, France and Italy. It seemed evident that such policy identity
would be hard to make palatable to the Britons and attempting to do so might be a
terminally flawed attempt at squaring the circle.
The result was the Social Protocol added to the Maastricht Treaty, which
bestowed the competence on the European Commission to set directives concern-
ing ‘working conditions, information and consultation of workers, equality between
men and women with regard to labour market opportunities and treatment at work’
(Falkner 1996, p. 3). It also introduced qualified majority voting to a more extensive
array of issues. Art.2 guaranteed the British opt-out.
The Social Protocol was readily embraced throughout continental Europe and
seemed finely attuned to assuage concerns about an excessively radical departure
from the more consensual and organized varieties of capitalism. It did so in two
ways: it strengthened the consultation of employer associations and trade unions,
committing itself to ‘promoting the consultation of management and labour at Com-
munity level and […] facilitate[ing] their dialogue by ensuring balanced support for
the parties’ (Art. 3). At the same time, it committed the Commission to an image
of social protection and support for worker rights. The policy domain identity cre-
ated is reflected very well in Art. 1: ‘…the promotion of employment, improved
living and working conditions, proper social protection, dialogue between manage-
ment and labour, the development of human resources with a view to lasting high
employment and the combating of exclusion’. The Commission thus skilfully crafted
an image in line with those countries wishing to elevate levels of social protection
and others accepting to go along with this mission (Lange 1993).
Predictably, the British government did not sign up to this protocol and to address
concerns from domestic constituents, British PM John Major successfully pushed
for reducing its status to a legally non-binding declaration of intent. This did not
take away from its symbolic significance, however. Tellingly, his Labour successor
in office Tony Blair reversed the previous stance and committed to the Social Proto-
col in 1997.
The new policy identity thus created helped produce momentum that led to a
flurry of social policy directives during the 1990s. The Commission generated and
found approval for directives establishing the new consultative bodies named Euro-
pean Works Councils (94/45/EC), equal rights for part-time employees (97/81/EC)
and worker protection for young employees (94/33/EC), limiting the working week
to 48 h on average (2003/88/EC; originally 93/104/EC) and setting the parameters of
regulation for transnationally posted workers (96/71/EC) (Geyer 2000).
The ideological conflict the Commission faced regarding this policy field is plain:
social and labour market regulation was often hard to square with and occasionally

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even contradicted the liberal spirit of Maastricht and the revival of the Single Market
in 1993. A very practical problem that we will return to later is the substantial level
of diversity in Europe’s welfare systems, labour market regulation levels, relative
power of unions and employers, and levels of social and public spending (Hoepner
and Schaefer 2012). Even prior to eastward enlargement it was clear that the much
more economically homogeneous European Economic Community of the 1950s and
1960s had long since faded away. There were major institutional and ideological
cleavages between the northern and Mediterranean countries and between the lib-
eral and the Social Democratic statist ideological vantage points. Social policy could
thus be prescriptive, but could not be either redistributive or entail granular detail.
There was and is no political appetite for substantially increasing the size of the
EU budget to permit major redistribution or even construct some form of EU-level
quasi-welfare state. It was thus difficult to walk the tightrope between satisfying
those seeking Eurocorporatist Social Democratic re-regulation on the one hand and
on the other alleviating concerns among economic liberals and the political Right
regarding excessive statist re-regulation of labour markets. Even so, the Commission
crafted a policy domain image of a forward-looking light touch re-regulation that
addressed the potentially more contentious aspects of the single market, for example
in the case of posted workers (Menz 2003). Employees seconded abroad temporarily
to work on a project for their employer were guaranteed all statutory working condi-
tions in the country of destination and at least minimum local wages, assuming these
were statutory in character. The Commission also proceeded with policy initiatives
that embraced European-level Social Democratic regulation modelled on Scandina-
vian and Germanic lines, such as the European Works Council directive. This new
institution was an information and consultation body that could be implemented in
European companies with at least 1000 employees in total and a minimum of 150
employees in a second country (Geyer 2000). This was meant to act as an inspiration
for a generally more neocorporatist policy style. Egalitarian policy initiatives such
as non-discrimination against younger and part-time workers were well received
by those favouring the political values of the modern Left, without being stringent
enough to offend or alienate those in favour of labour market deregulation.

Policy domain identity in the 2000s: the Lisbon Agenda

Around the turn of the twenty-first century, the last vestiges of Delorsian aspirations
had dissipated. The key turning point was the 2000 Lisbon Agenda. A Schumpet-
erian inspired document that was meant to inspire a fresh line of thinking regarding
socio-economic policy, the agenda famously established a 2010 deadline for render-
ing Europe the most competitive knowledge-based economy. As part of this agenda,
the focus of labour and social market policy changed considerably. The Prodi Com-
mission (1999–2004) embraced a new identity for social and labour market policy,
focussing on market-driven, deregulatory and enabling core that focused more on
‘workfarism’ and creating economic growth and thus job creation, rather than gener-
ous welfare provision. It also abandoned the ambition to implement binding direc-
tives in this domain. With that change in formal procedure came the abandonment

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of statist or neocorporatist policy style, followed over time by a shift into a more lib-
eral direction in substantive terms. The Lisbon Agenda defined as its aim to render
the EU ‘the most competitive and dynamic knowledge-based economy in the world,
capable of sustainable economic growth with more and better jobs and greater social
cohesion’. It specified achieving an employment rate of 70% (60% of women),
investing 3% of GDP into research and development and encouraging entrepreneur-
ship (EURActiv 2012).
In many ways, this new image of the policy domain reflected the ideological re-
positioning of European Social Democratic governments, whether in the case of
Britain’s New Labour, Germany’s Neue Mitte, the Dutch shift to the centre under
Prime Minister Wim Kok or Lionel Jospin’s centrist Socialist government in France
(Callaghan 2000). The watchword of the decade was ‘employability’. Redefining the
key project of the welfare state as being enabling in nature, as outlined in detail in
the joint Schroeder-Blair paper, the Lisbon Agenda reflected this new centrist shift
the paper posits: ‘The promotion of social justice was sometimes confused with the
imposition of equality of outcome. The result was a neglect of the importance of
rewarding effort and responsibility, and the association of social democracy with
conformity and mediocrity rather than the celebration of creativity, diversity and
excellence’ (Schröder and Blair 1998, p. 3).
The general goal was to prod and cajole employees back into the labour mar-
ket, rather than subsidize extensive bouts of unemployment or underemployment.
There is some debate as to whether this model of ‘workfarism’ was more strongly
inspired by Swedish-style welfarism or by the more punitive US approach as shaped
by the Clinton welfare state reforms of the 1990s (Daguerre 2007). In either event,
this embrace of an ‘enabling’ state and the abandonment of passive redistribution
as the guiding principle of welfare state policy captured the zeitgeist of the early
2000s perfectly. The new policy identity can be described as focusing on emphasiz-
ing labour market integration and inclusion, retraining and reskilling for the unem-
ployed, reducing impediments for younger, elderly and female employees and thus
raising employment and output levels.
With the change in ideological inclination came a modification to the policymak-
ing mode as well. Progress on social policy had been painfully slow and modest
throughout the 1980s and 1990s due to the reservations of the British government
during the reign of the Conservative Party. The Commission was well aware that the
impending eastward enlargement would further complicate the prospect of agreeing
on binding directives in this domain. The introduction of a less top-heavy policy
instrument, the so-called open method of coordination, was thus not least owing
to the frustrations over the experiences of the preceding two decades. Rather than
attempting to devise mutually acceptable draft directives, the new policy style con-
sisted of formulating fairly broad policy guidelines, but leaving the exact details of
implementation up to individual national governments by way of so-called national
action plans (Borras and Jacobson 2007; Heidenreich and Zeitlin 2009). The overall
guidelines, again in line with the Lisbon Agenda, were meant to redress Europe’s
lack of competitiveness and create more dynamic labour markets: investment in net-
works and knowledge, strengthening competitiveness and rekindling industrial pol-
icy efforts in services and environmental technology and increasing labour market

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participation among older employees (EURActiv 2012). The success of this strategy
was somewhat uneven. The 2004 Kok report was in parts quite strongly critical, and
the overall quantitative targets in terms of labour market participation were not met.
During the Barroso era (2004–2014), the Commission wished to adopt a new iden-
tity for this policy field, best described as ‘liberal modernization’. Notwithstanding
the strongly critical tone of the Kok report, no change in direction was pursued.
The shift to an enabling role, a guiding, but firm hand exercised by the Commis-
sion and the identity of liberal modernization was undoubtedly owing to the lib-
eral zeitgeist of the early 2000s. The claim that Europe was suffering from sclerosis,
low growth, excessively regulated labour markets and real entry barriers for younger
employees and less so women, commanded much attention and influenced policy-
makers across Europe quite considerably. Twelve out of 15 governments in the EU
of the late 1990s were dominated by the Social Democrats, but the ideological core
of European Social Democracy had shifted considerably towards a more economi-
cally liberal direction (Callaghan 2000), perhaps best embodied by Britain’s New
Labour and Germany’s Neue Mitte. Lacklustre economic growth seemed to only
exacerbate the structural problems of continental rigidity, and there was a lot of jeal-
ousy in the superficially more fluid and better performing labour markets of the UK
and the USA in the early 2000s. Thus, for example, Italy ceased to record any eco-
nomic growth from 1999 onwards, whilst the US was achieving nearly 5% through-
out the 1990s and into the 2000s (economic data from tradingeconomics.com 2017).
However, any governmental attempt to stimulate innovation, improve educational
standards of achievement and raise economic opportunity readily encounters the
well-documented difficulties inherent in the state incubating economic dynamism.
No matter how light the touch may be, the ultimate outcome of creative destruction
Schumpeter chronicled was the shift towards a planned economy. With the abandon-
ment of a tougher, tighter and more top-down policy approach, the other unsurpris-
ing result was the often robust resistance that national governments encountered in
seeking to implement liberal policy reforms. With the EU as a useful scapegoat or,
alternatively, the prospect of membership in the Eurozone a tempting ‘carrot’, it had
been politically easier to foist often punitive cuts to public and social spending and
in particular pensions upon the electorate (Sbragia 2001). The national action plans
that were part of the open method of coordination, by contrast, were only indirectly
related to the EU, and because of the anticipated resistance to cutbacks to social
spending or changes to labour rights, governments had an incentive to tread care-
fully and avoid major change.
The image of labour and social identity created during this decade was perfectly
attuned to the centrist shift of many ostensibly Social Democratically governed
European governments and their policy priorities. In that sense, enabling national
governments to deliver on jointly agreed quantitative targets regarding labour mar-
ket performance whilst bestowing an identity of modern, enabling and activating
state activity on this policy domain helped advance the political agenda during this
decade.
Whilst this exercise was certainly successful in terms of advancing labour and
social market policy and overcoming internal opposition, one might quibble with
the efficacy of the measures carried out themselves. The stated goal of the Lisbon

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Agenda, namely to render Europe ‘the most dynamic and leading knowledge-based
economy in the world by 2010’ (EURActiv 2012), was clearly not reached, even
well before the onset of the Global Economic Crisis of 2008. The quantitative tar-
gets regarding raising labour market participation, not least for women and elderly
workers, were equally not met. The policy image of liberal modernization helped
usher in certain reforms at the national level, but reforms in others were more piece-
meal. The annual targets to which member states committed constituted legally non-
binding ‘soft law’ indicators only, and it thus proved possible to evade far-reaching
reforms altogether. ‘Naming and shaming’ as a strategy clearly did no accomplish
much, either, in the face of recalcitrant southern member states.
In many ways the symbolically important major reform measures implemented
by the German Schröder government could be interpreted as a cautionary tale for
would-be reformers. Though the German government succeeded in abolishing a
tier of unemployment compensation, stimulated self-employment and reduced the
number of claimants for unemployment overall, the implementation of the so-called
Hartz agenda was politically highly contested. Ultimately, the reform agenda led to
the downfall of the Schröder coalition government in 2005. Whilst the economic
growth trajectory of the German economy from the mid-2000s onwards outper-
formed that of the rest of continental and Mediterranean Europe, the political price
tag that governments willing to emulate this course would have to pay seemed cer-
tainly very high. Germany went furthest in implementing liberal reforms to welfare
and social policy, but the government instigating these measures was severely pun-
ished. Critics on the Left also claimed that the German policy of wage restraint was
tantamount to a beggar-thy-neighbour policy at the expense of other European coun-
tries (Dufresne 2015). In any event, developments in Germany certainly did nothing
to persuade European governments elsewhere to emulate a similar strategy aimed at
labour market deregulation.

The 2010s: pushback against the liberal modernization image

Whatever appeal the new identity of this policy domain might have held, the
restated ambition of the Lisbon Agenda, dusted off and reinvented as the Agenda
2020, encountered choppy waters during the decade of the 2010s. The fallout of
the great economic crisis of 2008 complicated matters considerably. The response
taken by many, though not all European governments, which essentially consisted
of socializing underperforming bank loans and debts and thus precipitating a sov-
ereign debt crisis, was used to justify cutbacks to social and public spending. In
its responses to economic problems in southern Europe, especially in Italy and
Greece, the Commission made clear that it saw labour market deregulation and
cutbacks to labour market entry as the only way forward in redressing principal
impediments to economic growth and recovery. But the particular problems of
these two countries differed from those encountered in Spain, Cyprus, Hungary,
Latvia, Slovenia and Ireland. Faced with economic crises in multiple theatres that
might have been triggered by the fallout of the US banking and housing market
crisis, but played out very differently depending on the national setting (Sandbu

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2015), the Commission struggled to craft a new overarching policy domain iden-
tity. Instead, there were national response strategies (Bermeo and Pontusson
2012; Schmidt and Thatcher 2013) that varied considerably, with the Commission
playing an active role only in a handful of cases. Given that these major economic
problems now dominated the agenda, it proved difficult either to continue pursu-
ing the same policy identity as during the previous decade or to create a new one.
Pursuing ‘business as usual’ would have rightfully been interpreted as tone-deaf-
ness. But what sort of new identity should the Commission draw up and deploy
in light of an economic crisis that hit certain countries disproportionately hard,
whilst others recuperated much more readily, if not easily?
The European Commission struggled and ultimately failed to provide an answer
and generate a genuinely new and compelling image for the policy domain during
that decade, and the result was stagnation and a somewhat half-hearted attempt to
recycle the Lisbon Agenda. Most analysts agree, pointing to the conflict between a
more ‘social’ and re-regulatory agenda that national-level leftist politicians favoured
on the one hand and the austerity-focused approach of the Troika of IMF, Com-
mission and ECB towards Southern Europe and Greece in particular, with the lat-
ter ultimately carrying more weight (Copeland and James 2014). The repackaged
Europe 2020 did contain new elements, notably separately agreed upon targets of
20% for greenhouse reduction and renewable energy. Two other new elements were
the explicit commitment to reducing the percentage of early school leavers from 15
to 10% and reducing the percentage of Europeans living below the poverty level by
25%. Other elements were simply either copied directly from the Lisbon Agenda
(such as the commitment to invest at least 3% of GDP into R and D) or modified
slightly, as in the case of raising the target employment rate from 70 to 75% (EURA-
ctiv 2010). Ultimately, Europe 2020 did not diverge much from the Lisbon Agenda,
then, with the somewhat odd addition of the ‘green energy’ component perhaps
indicative of an attempt to bestow a somewhat progressive and modern image upon
economic governance. However, with the newly rolled out surveillance of national
budget making (‘European semester’) to ensure compliance with the Maastricht cri-
teria, it was clear that ultimately the commitment to more conservative macroeco-
nomic targets prevailed (European Commission 2010).
Among the member states the ideological homogeneity that had prevailed during
the late 1990s was gone. National interests differed dramatically, even among coun-
tries governed by ideologically similar coalition governments. The aftermath of the
single currency crisis had highlighted drastic differences in opinion regarding mac-
roeconomic governance in northern and southern Europe. Serious concerns regard-
ing the future direction of European integration prompted a slim majority of the
British electorate to support ending EU membership altogether. Partly underpinning
this dramatic decision was a concern shared across Europe about excessive levels of
immigration. The last point is expanded upon below in considerable detail. There
simply was no real common ground to be found among member states, and any
attempt at crafting a common policy or identity seemed fraught, as the underwhelm-
ing Europe 2020 agenda reflects. Compounding and exacerbating the difficulties the
Commission encountered was the fact that the impact of the three rounds of EU
eastward enlargement had created at least three new problems for the Commission.

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Firstly, the rapid and sizable enlargement brought a group of countries into the
membership fold that consisted of notably different and poorer entities with consid-
erably laxer levels of social protection (Hoepner and Schaefer 2012). The prospect
of weaving together a coherent social policy programme seemed to be practically
impossible in light of the sheer institutional diversity now apparent. What direc-
tion should be pursued given the immense differences in terms of levels of welfare
spending, configurations of systems of industrial relations, wage levels and labour
market regulation? What sort of policy image ought to be produced and dissemi-
nated in light of such extreme divergence? But equally importantly, the newcomer
states showed an aversion to any hint of re-regulatory Social Democratic policy.
Governments in the region perceived of their relatively low wages and light touch
labour market regulation as an important advantage in attracting foreign direct
investment (Noelke and Vliegenthart 2009). They would have likely objected to a
return to the compensatory Social Democratic policy image of the 1990s. Similarly,
the deregulatory liberal modernization image of the 2000s promised little purchase
in central and eastern Europe. Low levels of labour market participation were hardly
a problem in the region. Quite the opposite: central and eastern Europeans took full
advantage of the freedom of labour mobility, pursuing higher wages and more job
opportunities in Western Europe. If anything, the region experienced labour short-
ages in certain professions, as large-scale emigration created negative ramifications.
With the passing of time, the new member states were becoming more assertive and
self-confident as opposed to the much more obsequious stance of the early 2000s. A
policy image that would be foisted upon them would not gain much political sympa-
thy or obtain much traction.
Secondly, EU eastward enlargement created concerns regarding mass immigra-
tion and so-called social dumping by way of transnational service provision in
Western Europe. This was not an altogether new problématique and had emerged
in similar form before in the early 1990s, ultimately prompting the EU Directive
on Posted Workers (Menz 2003). In an EU with enormous wage gaps between
eastern and western Europe, in extreme cases reaching the ratio of 1:30, west-
ern trade unions and left-leaning parties feared replacement effects, wage dump-
ing and a downward ratcheting effect caused by mass immigration and posting of
workers from Central Europe. The Commission dealt with this matter extremely
poorly. At first there was no attempt whatsoever to assuage concerns in West-
ern Europe. Subsequently, the floating of the so-called General Services or
‘Bolkestein’ directive suggested that far from being aware of the problem, the
Commission sought to push liberalization much further, including legalizing
the posting of workers in much broader segments of the economy. The directive
incited considerable controversy and political backlash, seeing that it was per-
ceived on the political Left as an embodiment of an excessively liberal economic
policy orientation (Crespy 2010). Only following considerable political criti-
cism did the Commission guarantee the vitally important country of destination
principle, according to which service providers had to respect country of desti-
nation labour market regulations and wages where legally binding, as had been
enshrined in the original 1997 Posted Workers Directive (96/71/EC, enhanced by
the Enforcement Directive (2014/67/EU)). Though outside of the purview of the

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Commission, the European Court of Justice passed four controversial judgments,

which reinforced the rights of transnational service providers and limited the
national purview for re-regulation (Barnard 2014). Taken together, the impres-
sion conveyed was that not only did no cohesive policy domain identity consist
any longer, but to the extent that one could be pieced together by interpreting the
actions of the Commission and the Court, the new image was shrill, excessively
liberal and out of touch with the preoccupations of western member states. Just
like in the 1990s, accusations surfaced of entrepreneurial activities that delib-
erately employed arbitrage in extracting maximum advantage from the different
wage and wage-related compensation levels across Europe. But whereas in the
1990s the Commission had responded with the Posted Workers Directive which
enshrined the host country principle, its somewhat haphazard and ultimately lib-
eral response to the issue suggested either a lack of cohesion or a new very liberal
policy identity that was unlikely to fall on fertile soil in Western Europe.
Thirdly, intra-European migration, a phenomenon that practically did not exist
throughout the 1970s and 1980s, emerged with a vengeance in the 1990s and follow-
ing eastern enlargement. Re-regulating access to their labour markets by imposing
temporary transition periods was an option for member states, most of which availed
themselves of. The Commission probably underestimated the volume of such migra-
tion and the political backlash it would ultimately generate. Though a few direc-
tives were generated that were meant to rein in exploitative conduct on the part of
employers via a directive on employer sanctions (Peers 2009), these measures were
ostensibly aimed at employers of non-European immigrants. In any case, there was
no effort made to craft a policy identity for this field that would take concerns into
consideration over labour immigration and perhaps transnational service provision.
In the late 1960s explicit attempts were made to safeguard the rights of European
migrant workers (68/360/EEC). By contrast, no real efforts were made during the
2010s either to promote migrant worker rights or to take into consideration rising
concerns over immigration throughout Europe as expressed in public opinion polls.
To the extent that the Commission did pronounce itself on the issue of immigration,
it expressed unadulterated support for yet higher levels of net immigration, including
from outside of Europe. This was again far from forming a coherent policy image
and in any case seemed out of touch with citizens’ concerns.
The most dramatic expression of the long-standing disregard for concerns regard-
ing immigration arrived in the form of the Brexit referendum in the UK in the sum-
mer of 2016. Whilst British voters rejected continued membership in the EU for
a vast array of reasons, including concerns over loss of sovereignty, and levels of
British contribution, the immediate open access to the British labour market for
all EU citizens was a major bone of contention. The issue of immigration played a
significant role in the heated campaign in the run-up to the referendum (Goodwin
and Heath 2016). The Commission seemed to offer no real guidance on the matter.
To the extent that it did, it sided with the dogmatic position of German Chancellor
Merkel who insisted that there would be no abrogation from the freedom of labour
mobility, not even a temporary one. This, again, was neither part and parcel of a
cohesive policy domain identity nor did it seem to take attuned to concerns over the
levels and the impact of mass immigration in the UK.

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Conclusion

The argument I submit in this article is that policy domain identity is used as
a strategic tool by the European Commission to help advance its policymaking
agenda. In doing so, however, the Commission needs to display considerable acu-
men, as an identity out of touch and out of tune with the prevailing sentiments
among member states is unlikely to gain much purchase or have much impact.
In fact, such identity will probably do more harm than good and impede fur-
ther strides in policymaking. An identity that is closer aligned with predominant
ideas, concepts, preoccupations and ideological concepts shaping the intellectual
zeitgeist will, by contrast, aid in advancing a policy agenda, override institutional
resistance and smoothen the path of policy implementation. In empirical terms,
the article draws on evidence from the field of labour and social policy over the
course of the past three decades. The Constitution daftly crafted an image of
liberal modernization for this policy domain, with a more statist and regulatory
character in the 1990s, and a more employment-focused activating thrust in the
2000s. However, faced with the impact of the economic crisis of 2008, the rami-
fications of EU eastward enlargement and the challenges of transnational service
provisions and intra-European immigration, the Commission struggled and ulti-
mately failed to craft a new cohesive policy domain image. This in turn helps
account for the lack of progress the social policy agenda has made over the course
of the decade of the 2010s. Unless and until the Commission manages to develop
such policy image that provides a powerful and compelling narrative, social and
labour market policy is unlikely to rebound from its current phase of stagnation.
The scholarly literature in the past has discussed the identity of actors and its
relevance for EU policymaking. The constructivist turn in international relations
has also inspired accounts that demonstrate how ideas have been used and have
influenced political decisions taken in the context of European integration. How-
ever, scant attention has been paid to policy domain identity: the skilful crafting
of an image, of a brand, of a set of ideas that smoothen policy implementation
and constitute a cohesive policy agenda—or at least purport to do so! The idea-
tional content of this identity can be interpreted by carefully interpreting policy
output and exploring the consistent red thread linking different pieces. Some past
scholarly work has emphasized the importance of discourse in helping legiti-
mize political reform and dramatic policy chance, but here the claim is made that
there needs to be a more overarching set of coalescing ideas. The absence of such
coherent policy identity will impede policymaking progress. However, European
policymakers need to devise an identity which is attuned to national prerogatives
and encapsulates national policy notions. This enterprise has become exceedingly
difficult in the aftermath of three rounds of EU enlargement and the attendant
diversity of social and labour market policy institutions and ideational paradigms.
It thus seems very difficult indeed for the Commission to regain momentum and
generate a new and compelling policy identity for the domain of labour and social
policy that would have appeal and traction in all of the member states.

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maps and institutional affiliations.

Georg Menz holds the Dragas Chair in International Studies at Old Dominion University (USA).

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Comparative European Politics (2019) 17:619–623
https://doi.org/10.1057/s41295-019-00173-6

COMMENT

Comment: the EU and European identity

Neil Fligstein1

Published online: 29 March 2019

© Springer Nature Limited 2019

The purpose of this volume is to examine how various actors within EU policy
institutions have worked to try and create a European political identity. Each of the
papers included in this volume deserves attention. They are thoughtful and full of
interesting case studies. There is evidence in each of these papers (summarized by
Saurugger and Thatcher 2019) that those who run the policy institutions do work
to create some form of common European identity. There is also evidence that the
ability to do this depends on the nature of the policy institution, its definition in the
various treaties, and the amount of resistance by national governments. The papers
explicitly try to avoid two issues: the issue of whether or not the EU is a state and
the role of the EU in responding to, creating, or changing the identities of citizens of
the member states (Saurugger and Thatcher 2019).
My comments focus on a number of issues. First, I want to take up the meth-
odological problems inherent in having such a disparate group of papers. There is
a clear kind of selection bias here, and in many ways, these papers compare apples
and oranges. Then, I want to suggest what is missing from these papers as a result
of the theoretical choices that the authors have made. While the papers focus on the
EU authority in policy, many of them fail to connect the domain to all of the pos-
sible actors in those domains and across domains to explain what might be going on.
Finally, I want to consider what all of this adds up to. In doing so, I bring into play
the two issues the editors have ruled out: whether or not the EU is a state and what
impact the identities of citizens in the member states have on what is observed here.
I have a great deal of sympathy for what was done here. Whenever you gather a
group of scholars together to produce a volume on a particular topic, you work to
find people who balance off various topics that might be related. But, in a volume
that seeks to learn what can generally be found out about how identity is deployed
within policy domains of the EU, one needs to at least make a case that the institu-
tions considered are a good sample of what is possible. My first concern is that the

This comment was prepared for a Special Issue of the Journal of European Public Policy on the
construction of the EU’s Political Identity in Policy edited by Sabine Saurugger and Mark Thatcher.

* Neil Fligstein
fl[email protected]
1
Department of Sociology, University of California, Berkeley, CA 94720, USA

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 N. Fligstein

project assumes we know what the authors mean by domains and that the sample
that we have gotten is representative of the domains in the EU.
So, for example, the Lavenex paper considers “EU asylum and immigration pol-
icy.” But this is not really a policy domain where the Commission has the power to
produce common agreements. The member state governments, as Lavenex notes,
are pretty much responsible for their own policies. I see the paper by Thatcher on
cultural heritage policy as also not a policy domain mostly because it has no legiti-
macy in the various treaties and therefore not really a focus of EU policymaking
(except insofar it pertains to the single market). The ECB described by Jones, on the
other hand, is an organization that has at least three policy domains, one of which
organizes banks, another that contains member state governments’ central banks,
and a third that sits to make policy, all of which exist at a supranational level. The
ECJ as discussed by Saurugger and Terpana is a domain responsible for the crea-
tion and maintenance of the EU legal field and thus certainly a policy domain. The
Duina and Smith paper where the EU has a supranational identity in some interna-
tional negotiations may or may not be a policy field depending on how such a field is
defined. Given these are not all equally policy domains, it is difficult to say what one
learns by comparing them.
Relatedly, what can the selection of these cases tell us more generally about
the process of building European identity in policy domains? These sets of cases
were not chosen to be representative, and so the general lessons one might draw are
uncertain. Moreover, the relative significance of each of these domains to the over-
all EU project is not considered. Given the EU has so little treaty jurisdiction over
social or labor issues, as the Menz paper shows, does comparing that domain to the
ECB or the ECJ really make sense? Isn’t the simplest explanation that the EU does
not really have much influence here, the best explanation as to why there is no EU
identity in social or labor issues? The ECB, on the other hand, is clearly a core insti-
tution to the EU project. That it is so core and so “EU” should mean it is telling us
something important about the EU as a governance structure with an identity. With-
out understanding the universe from which these cases are sampled and the degree
to which the cases are important to the overall functioning of the EU, it is hard to
tell what the main results of the papers tell us about how far the European identity
projects of the EU have gone.
There is another set of problems raised by isolating the domains in the ways in
which the papers are presented. The existing stable institutions of the EU are clearly
going to be more European in their origin and likely to have stronger European iden-
tity and makeup than those which do not have formal organization or are constituted
in an ad hoc way. But those institutions are of varying size and importance. While
the papers avoid the question of whether or not the EU is a state, it is hard to avoid
that fact that the ECJ and the ECB are core to the political system that is the EU
while many of the other papers take on domains that are not core.
Let me elaborate this point. Alec Stone Sweet and I wrote a paper in 2002 where
we show that the process whereby the core of the EU project, the Court, the lobby-
ing process in Brussels, and the production of directives around the single market
linked up to form a political system. The origination of that system was not cre-
ated through the intent of the original organizational design in the Treaty of Rome.

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Comment: the EU and European identity

Instead, actors creatively did what Saurugger (2013) says they do: they use what
they have and they make something happen.
In the EU case, people who traded were the first movers in the formation of the
core of the EU. They were the ones who sued under EU rules in national courts
(Fligstein and Stone Sweet 2002). When the ECJ agreed that they had standing and
upheld their rights to do business across member state lines, it stimulated two politi-
cal reactions. First, groups began to form to lobby the Commission and the Council
in Brussels and the output of directives increased (Fligstein and Stone Sweet 2002).
Over time, this ratcheted up to create the most important political structure that
exists in the EU today. This part of the EU is actually not only relatively well insti-
tutionalized in the treaties but is populated by groups representing a wide variety of
interests, mostly those of people doing business across Europe.
Now the question that this story raises is how significant are some of the case
studies in this volume compared to the core activity of creating a real European poli-
tics around the single market and its main constituency, those engaged in cross bor-
der trade? This is particularly a question when one can see the ECJ as part of this
edifice and the ECB pretty closely allied with it. But the papers in the volume oper-
ate as if each of the domains they study is independent of each other. The papers
also do little to assess the overall importance of the domains to the core function-
ing of the EU. By being siloed, the papers ignore the relations between domains to
one another in forming a system of governance. Put another way, the existence of a
European identity in a domain probably means it strongly attaches to the overall sys-
tem of EU governance. Lack of such a link is prima facie evidence that the domain
is not part of that structure.
My second issue is exactly what the authors have chosen to study about these
domains. The core attempt is to try and find the use of language that connotes a
European set of values or justifications for action. While this is certainly legitimate
and well defined as an object of study, the issue of exactly what constitutes these
domains is left very vague. While most of the papers do a good job situating the
main EU organization in the papers, they vary greatly in who else is considered a
participant in these activities. There is always a mention of EU organizations, some-
times a mention of member state governments, but there is little mention of other
stakeholders like traders, lobbying groups, or civil society associations. Any discus-
sion of these domains that does not include who is a participant and what their role
is and their take on what is going on, potentially under- or over-estimates the degree
to which the domain is European in its orientation. It also could easily miss impor-
tant dynamics of change and stability.
This raises a more general question of what these studies actually show. How is
what goes on in each of these policy arenas any different than any other political
system, particularly one based on some form of federalism where there is a divi-
sion of powers between states and a central authority? After reading these papers,
one is struck by how similar the politics of these varying domains are to domains
that exist in other governments. So, in the USA, we have a Supreme Court which
hears cases from private citizens, but also from representatives of state governments,
particularly their attorney generals. It would be odd to ask the question of whether
or not such a legal system was “American.” But we can clearly see conflicts in that

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 N. Fligstein

legal system that look a lot like those described in the Saurugger and Terpana paper.
Similarly, the Federal Reserve in the USA may try and get the federal government to
reign in its fiscal policy, but it lacks the levers to do so just like the ECB.
The Menz paper shows how little supranational capacity exists for labor and
social policy in the EU and how most responsibility for these things lies with the
member state governments. But in federal systems, we often see this division of
power around these issues. If you look at educational policy in the USA, you would
find that state governments control funding and rules for all levels of schooling with
the federal government having little authority to do much, just like the EU. The
political dynamics of these policy domains reflect their institutional legitimacy, their
organizational capacity, and the nature of who the players are and what the conflict
is between the players in the political domain. I am less sure that the “national”
identities of the players have a huge impact on who has power and who gets what
and why.
This brings me to my last issue, what does all of this add up to? It is here that the
question of whether or not the EU is a state and if so, what kind is important. It is
here that also the issue of what the citizens of Europe want and who they think they
are is relevant as well. The authors of these papers suggest that there are two issues
which appear to be tearing Europe apart: the forced fiscal austerity in response to
the financial crisis and the refugee crisis caused mostly by the wars in Syria and
Afghanistan, as well as ongoing conflicts in Africa. But both of these crises had
policy responses generated not in the supranational arenas of the EU but in the inter-
governmental relations of the EU. The fact that the conflicts over these policies were
so much about how each member state government perceived its national interest
meant that a lack of European identity and indeed any institutional legitimacy in
these domains has caused an erosion of support for the EU.
The austerity project, ironically, was enforced by the Council acting as an inter-
governmental alliance. The northern countries, particularly, the Germans were
very aggressive in pushing an austerity agenda that involved cutbacks in govern-
ment spending in the face of horrific recessions. The so-called PIIGS (Portugal,
Italy, Ireland, Greece, and Spain) were given little choice but to tighten their belts
in response to a crisis that few of the citizens of those countries caused directly.
It became clear to people living in these countries that the EU was not a form of
solidarity that embraced everyone. The effects of this intergovernmental agreement
were to increase dislike of the EU and increase national identity (Polyakova and
Fligstein 2016). The refugee crisis also showed clearly the intergovernmental nature
of that policy domain in line with the papers by Lavenex and Diez. That the crisis
ended up being entirely a matter of national decision making was a result of the fact
that the member state governments had not been able to put a stronger agreement in
place before this crisis began.
Both the financial crisis and the refugee crises were part of the fuel which has
brought to the fore populist and nationalist politicians across Europe. These poli-
ticians have been Eurosceptical to an extreme. I argue that the current crisis of
the EU, including the Brexit, is not a function of the failure of the supranational
part of the EU from working the way they should to create a sense of Europe, but
instead a product of the deep divisions across the member state nations on issues

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Comment: the EU and European identity

of sovereignty and national identity that preceded the events of the past 10 years. It
is here that Fabbrini paper comes into play. It is not just the contradiction between
the supranational EU and the intergovernmental EU which restricts a more united
Europe from happening. It is instead that democratically elected member state gov-
ernments following the wishes of their citizens have historically refused to pool sov-
ereignty around issues of national concern like immigration, labor, social, and fiscal
policies.
Citizens with mostly national identities view their governments as the actors who
should work to protect their nation. As I have shown in earlier work, 90% of citizens
in the member states have mostly a national identity (Fligstein 2008). The financial
crisis and the refugee crisis both offer instances where other member state govern-
ments pushed policies on citizens not living in their states. Those citizens wanted
their governments to protect them from exactly those kinds of policies. But these
crises have only reinforced for most people across Europe the sense that they have a
national identity. Understandably, they want their national government to put them
first. Whether or not one considers the EU to be a state is a matter of definition.
But it is clear that the current division of power between the EU and the member
state governments has only been reinforced in these crises. This division will only
change when citizens of most countries decide that they share a common fate in
those domains. This seems unlikely.

References
Fligstein, N. 2008. Euroclash: The EU, European identity, and the future of Europe. Oxford: Oxford
University Press.
Fligstein, N., and A. Stone Sweet. 2002. Constructing polities and markets: An institutionalist account of
European integration. American Journal of Sociology 107(5): 1206–1243.
Polyakova, A., and N. Fligstein. 2016. Is European integration causing Europe to become more national-
ist? Evidence from the 2007–9 financial crisis. Journal of European Public Policy 23(1): 60–83.
Saurugger, S. 2013. Constructivism and public policy approaches in the EU. Journal of European Public
Policy 20(6): 888–906.
Saurugger, S., and M. Thatcher. 2019. Constructing the EU’s political identity in policy making. Com-
parative European Politics. https://doi.org/10.1057/s41295-019-00169-2.

Publisher’s Note Springer Nature remains neutral with regard to jurisdictional claims in published
maps and institutional affiliations.

Neil Fligstein is the Class of 1939 Chancellor’s Professor in the Department of Sociology at the Univer-
sity of California. He is the author of seven books including The Transformation of Corporate Control
(Harvard University Press, 1993), The Architecture of Markets (Princeton University Press 2001), Euro-
clash (Oxford University Press, 2008), and A Theory of Fields (with Doug McAdam, Oxford University
Press, 2012).

165 Reprinted from the journal

Comparative European Politics (2019) 17:624–630
https://doi.org/10.1057/s41295-019-00177-2

ORIGINAL ARTICLE

EU political identity, integration and top-down analyses:

a reply to Neil Fligstein

Sabine Saurugger1 · Mark Thatcher2

Published online: 29 March 2019

© Springer Nature Limited 2019

Abstract
This reply to Neil Fligsteins thought-provoking comments on this special issue’s
contributions analyses three specific aspects: the problems of comparing identity
construction in different policy areas due to differences in European integration;
the focus on EU institutions and lack of attention to social groups and citizens; the
EU as a state. We argue that instead of offering one overarching theory of EU state
building, the articles analyse what most would regard as a key aspect of a state—
political identity—and then consider its top-down policy aspect. This has several
advantages: a degree of manageability; seeking careful hypotheses; separating parts
that are conceptually distinct, notably the creation of a political identity and then
whether citizens actually identify with it; investigating causal linkages.

Keywords Identity · European Union · Public policy · Society

In response to our invitation to offer comments on the special issue, Neil Fligstein
provided us with a fantastically provocative piece on the special issue for which we
are grateful. It offers thought-provoking criticisms for the future but also a chance to
explain and defend our choices and approach.
Neil Fligstein examines three main issues: the problems of comparing identity
construction in different policy areas due to differences in European integration; the
focus on EU institutions and lack of attention to social groups and citizens; the EU
as a state. We will address these various issues in turn.

The chapter’s original version was revised: Mark Thatcher's affiliation has been updated. The
correction to the chapter is available at 10.1007/978-3-031-17407-0_12

* Sabine Saurugger
[email protected]
Mark Thatcher
[email protected]
1
Univ. Grenoble Alpes, Sciences Po Grenoble, Pacte, 38000 Grenoble, France
2
Department of Political Science, Luiss University Rome, Rome, Italy

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 S. Saurugger, M. Thatcher

Identity, integration and cross-domain comparison

Neil Fligstein starts by arguing that the selected areas show a selection bias; nota-
bly comparing integrated and/or central policy areas with less integrated and/or
central ones leads to comparing apples with pears. There are strong differences in
the extent of integration across fields. Indeed, he argues that areas such as immi-
gration and culture are not domains because they are not ones where ‘the Com-
mission has the power to produce common agreements’ and ‘it has no legitimacy
in the various treaties and therefore not really a focus of EU policymaking (except
insofar it pertains to the single market).’ He underlines the important studies by
neo-functionalists and the ways in which they show processes whereby transna-
tional exchange lead actors press for greater integration, and how these processes
vary across fields.
While we understand the argument, we disagree about comparison and very
importantly, distinguish identity construction and integration. First, the aim of
selecting these policy areas and institutions was precisely to create variance in
order to analyse when and under which circumstances actors active in these con-
texts are able to create a common policy identity. It would indeed have been a
problem if we had analysed both policy and organisational identities, i.e. the
internal identity of the ECB or the Commission. Instead, the articles included
in this special issue analyse highly integrated policy fields such as trade (Duina
and Smith 2019) as well as public policies that are less supranational such as
cultural policy (Thatcher 2019). Others, such as EMU (Jones 2019), immigration
(Lavenex 2019) or the neighbourhood policy (Diez 2019) are mixed, or differenti-
ated policy fields, in terms of the extent of integration. Studying identity forma-
tion in these policy fields allowed us inductively to develop a series of hypoth-
eses presented in the introduction. Identity formation in these policy fields varies
based on five different variables ranging from interests and preferences of mem-
bers states to power relations between institutions, external pressures and rival
policy identities at member state level.
The analysis of conflicts and cooperation amongst actors in different policy
fields allows the authors to illustrate the embeddedness of these domains and
relate it to EU identity formation. Far from developing in a vacuum, policy iden-
tities emerge through interaction and opposition. Duina and Smith (2019) show
this process of identity creation in the field of trade policy; Georg Menz (2019)
shows that the emergence of EU policy in one area led to pressures for more pol-
icy identity in a related one: the development of the single market in the 1980s
triggered Jacques Delors to search to offset liberalisation with a ‘social market’
identity. Furthermore, some aspects of social policy are linked to migration pol-
icy, some other to broader sovereignty concerns as Lavenex points out.
Hence, the articles show that policy areas and institutions are not unitary
fields. Their embeddedness, as Neil Fligstein rightly pointed out, makes it dif-
ficult, if not impossible to determine their borders. The ongoing process of dif-
ferentiation is adding to this complexity. Contrary to the 1990s when policy areas
could be relatively well described as either supranational or intergovernmental,

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EU political identity, integration and top-down analyses: …

this distinction has become increasingly blurred (Leuffen et al. 2012). All the
domains examined have EU legal bases—including culture and welfare. Even
within those where the supranational elements are weaker than others, there are
significant legal powers for EU institutions. There have also been changes over
time in both directions of greater supranational powers in some fields (e.g. Cul-
ture and welfare) but also attempts to rein in EU institutions such as the Court
of Justice of the European Union or European Central Bank.
Therefore, in order to analyse the identity-building process in an empirically
meaningful way, policy areas and institutions have to be selected and cannot be
treated in an overall, macro-sociological manner. The hypotheses included in the
introduction of the special issue are the result of the in-depth analysis across and
within policy fields, often over periods of change. We use variations across and
within policy domains to increase our analytical leverage.
Perhaps equally and fundamentally, integration offers an explanatory factor rather
than the end point of our analysis. Debates about the extent of integration and expla-
nations for it have dominated studies of the EU for many years, and Neil Fligstein
and others have made seminal contributions, notably the revival of neo-functionalist
explanations. However, new issues are coming to the fore in European politics, espe-
cially in the past decade, of which political identity is a good example.
There are both theoretical and empirical reasons to maintain integration as con-
ceptually distinct from political identity. The former relates to the development of
supranational authority—rulemaking powers, whereas the identity is about distinct,
articulated values and then a process of identification. Although early neo-function-
alist scholars of European integration included a transfer of loyalties to the EU in
integration (e.g. Haas 1958; Deutsch 1957; cf. Risse 2005), more recent work has
not. As prominent neo-functionalists Alec Stone Sweet and Wayne Sandholz argue:
‘we leave as an open question the extent to which the loyalties and identities of
actors will shift from the national to the European level. There is substantial room
for supranational governance without an ultimate shift in identification.’
It is perfectly possible for integration to proceed without the EU setting out a
clear political identity. Indeed, those looking at ‘integration by stealth ‘or ‘covert
integration’ analyse the many advantages that avoiding clarity, including a political
identity in the sense of clear values that are articulated and differentiated from those
of other polities, can have for actors seeking greater European integration (e.g. Héri-
tier 2015; Mény 2014; Meunier 2017). A third possibility is that identity proceeds
before integration or may even be a causal contributor to integration. The linkage
between integration, and especially supranationalism, and identity must therefore be
explored rather than either assumed or conflated (cf. Fabbrini and Puetter 2016) .
Empirically, our papers certainly find relationships between legal integration and
identity creation efforts by EU institutions. However, such relationships are far from
simple nor can the latter be ‘read off’ the former. Often integration has aided politi-
cal identity creation, and at times, it has preceded it, notably in monetary policy.
However, EU powers have sometimes increased without a corresponding rise in EU
identity—parts of cultural heritage policy or even of monetary policy offer good
examples (Thatcher 2019; Jones 2019). Equally, the content of identity matters—
for example, whether EU institutions seek to create a market identity or a social

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 S. Saurugger, M. Thatcher

one (Saurugger and Terpan 2019) or the balance between economic and other val-
ues (Menz 2019; Thatcher 2019)—not just for the kind of EU identity but also its
strength in term of its distinctiveness. Moreover, the linkages are often complex.
Thus, Sergio Fabbrini shows the contradictory forces set off by different types of
political identity in supranational versus intergovernmentalism, while Erik Jones
analyses how greater monetary powers lead unelected EU policy makers to want
to create a political identity to deal with the problems that arise (Fabbrini 2019;
Jones 2019). Moreover, integration may be compatible with different forms of
identity, with strong contestation about which should prevail—as Sandra Lavenex
(2019) shows by looking at statist, normative power and economic EU identities in
immigration.

Citizens, social groups and EU institutions in identity building

A further key issue concerns the focus on EU institutions and exclusion of other
groups, including citizens. Neil Fligstein points to the extent of citizen identification
as a key problem, as well as other groups, especially as he argues that other groups
have led to integration to such an extent that we must discuss the EU as a form of
state.
We quite explicitly chose not to focus on citizens and their identification (or lack
of identification) with the EU. Quite apart from the volume of work that has already
been done on this issue (e.g. Bruter 2005; Diez Medrano 2003; Checkel and Katzen-
stein 2009; Risse 2010; Duchesne et al. 2013; van Ingelgom 2014; Hooghe et al.
2017), the central reason is that the process of identification involves the existence
of an identity to identify with. If the EU has created little identity, then the process
of identification is unlikely to occur. The literature on European nation state building
underlines that identity creation has often been a top-down process, as key insti-
tutions—national government, the monarchy, army, education system, etc.—devel-
oped an identity that citizens then identified with, often in times of war and crisis
(Elias 1975; Fukuyama 2004). Of course, we live in different times and the EU can-
not be assumed to follow the same path as a nineteenth-century European nation
state, so we focused on the EU’s central activity—policy making—across major
fields. We also examined the content of the EU’s identity in various fields, as this
too is likely to be important for citizen identification.
Equally, the focus on EU institutions rather than a whole gamut of groups arises
for both empirical and theoretical reasons. We are concerned with identity build-
ing by EU institutions through policy rather than integration. Neil Fligstein refers
to the ‘deployment’ of EU identity, but here our concern is with the development of
that identity. Undoubtedly, social groups may contribute to this, and several papers
include groups in this way, from trade unions and employers in social policy to those
taking legal cases to the CJEU, but their actions pass through or act in conjunc-
tion with those of EU institutions that make EU policies. It will be extremely useful
to further consider whether, how and why social groups act in relation to identity
building by EU institutions.

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EU political identity, integration and top-down analyses: …

The EU as a state

The issue of whether the EU is now ‘a state’ or its ‘stateness’ is increasingly

debated (for just a few major contributions, see Richardson 2012; Schmidt 2009;
Genschel and Jachtenfuchs 2014). It is a fascinating and big question. One
approach to big questions is to offer overarching theories. This has many advan-
tages, such as applying parsimonious theories and applying large-scale compari-
sons, notably between the EU and nineteenth-century state building in Europe or
federal systems such as the USA or Germany. The conceptual tools political sci-
entists as well as sociologists forged to study the state have been very useful, to
study and understand European integration and provoke debate and comparisons,
as Neil Fligstein was amongst the first scholars to show in his seminal work (Flig-
stein and Mara-Drita 1996; Fligstein 2008).
However, another approach to big questions is to break them down into more
manageable parts and offer medium-level theorising. This is the strategy we have
adopted here, for several reasons: the concept of ‘the state’ is of course highly con-
tested; its current meaning in Europe is equally open to debate (cf. King and Le
Galès 2017); the application of a concept usually developed for nineteenth-century
and twentieth-century nation states to an international polity that is varied across
institutions and domains, as well as changing such as the EU, calls for great care;
it is a multi-variable concept. The current development of the EU, where intergov-
ernmental decision-making and differentiated integration have become increasingly
visible, questions the state-like character and the parallels with the US even further.
Equally, identity creation is also distinct from the distribution of powers. Neil
Fligstein argues that ‘I am less sure that the “national” identities of the players
[in federal systems] have a huge impact on who has power and who gets what
and why.’ Quite apart from the fact that sharp battles linked with identity have
often accompanied the creation of federal states such as the USA or Germany,
and continue even today, whether identities affect power distribution is a question
that calls for analysis. It follows on from whether those identities exist and what
their contents are—if identities at some levels are weak and/or not in conflict with
those at other levels, this is likely to influence debates about state creation.
Instead of offering one overarching theory of EU state building, we analyse
what most would regard as a key aspect of a state—political identity—and then
consider its top-down policy aspect. This has several advantages: a degree of
manageability; seeking careful hypotheses; separating parts that are conceptually
distinct, notably the creation of a political identity and then whether citizens actu-
ally identify with it; investigating causal linkages. The papers certainly offer evi-
dence that can then form part of a broad debate about the EU as a state—from the
limits on the EU as a polity in Sandra Lavenex’s paper on different forms of EU
identity in immigration to the drawing of borders in Thomas Diez’s discussion
(2019). But, we seek to offer a bounded analysis of what we regard as already a
set of complex questions around an issue that in itself is important.
On one point, however, we are much inclined to agree with Neil Fligstein: the
gap between the EU’s powers and use of its powers and strong national identities

171 Reprinted from the journal

 S. Saurugger, M. Thatcher

creates major problems. As Sergio Fabbrini (2019) points out, there are enor-
mous tensions between supranational and intergovernmental identities. However,
a major part of the answer to this question lies in the extent to which the EU itself
has been able in its main activity, namely policy making, to develop a political
identity and the content of that identity.

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Publisher’s Note Springer Nature remains neutral with regard to jurisdictional claims in published
maps and institutional affiliations.

Sabine Saurugger is Professor of Political Science and Research Dean at Science Po Grenoble (France)
and research fellow at Pacte.

Mark Thatcher is Professor of Political Science at Luiss University, Rome, and visiting professor, London
School of Economics.

173 Reprinted from the journal

Correction to: Constructing the EU’s
Political Identity

Sabine Saurugger and Mark Thatcher

Correction to:
S. Saurugger and M. Thatcher (eds.), Constructing the EU's
Political Identity, https://doi.org/10.1007/978-3-031-17407-0

The original version of the book was revised with the following belated correction:
The affiliation of Mark Thatcher has been changed to “Department of Political
Science, Luiss University, Rome, Italy”. The book has been updated with the
change.

The updated original version of the book can be found at

https://doi.org/10.1007/978-3-031-17407-0

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 C1

S. Saurugger and M. Thatcher (eds.), Constructing the EU's Political Identity,
https://doi.org/10.1007/978-3-031-17407-0_12