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Flexibility Is Not Europe’s Miracle Solution

Flexibility Is Not Europe’s Miracle Solution

As the EU confronts all manner of challenges, there has been a new push for the idea of so-called flexible Europe. Yet the concept is prone to misunderstanding and risks tearing the union apart.

In the aftermath of the Brexit vote, a new push for European integration brought the idea of a so-called flexible Europe—a framework that responds to varying levels of ambitions among the EU’s members, capable of adapting to member states’ individual needs and interests—back en vogue. Calls for “more Europe” usually face resistance and cause divisions within the EU, so the flexible option presents a natural compromise between the need for unity and the wish for movement. Yet flexibility is prone to the risk of misunderstanding, which, against today’s complex political backdrop, could tear the union apart.

 
The term “flexible Europe” has been loaded with multiple meanings from the start, making it difficult to define—a few of the many explanations include two-speed or multispeed Europe, a core group of EU members, an avant-garde leading the way forward, or concentric circles of membership. At the same time, the debate on flexibility has exacerbated divergences among EU members. For supporters of enhanced integration, flexible Europe comes as the natural fix to deliver new momentum to European affairs. For the skeptics, it brings the potential to dig up old divisions.

This antagonism is further complicated by the tendency to reduce tensions to a confrontation between Eastern and Western Europe. Eastern Europeans see flexibility as a trick to gradually lock them into a second-class zone, while Western Europeans support flexibility as a means to rectify growing divisions over migration and the rule of law.

This presentation smacks of oversimplification, but it reflects a built-in ambiguity that has always permeated the idea of flexibility: there are two distinct ways of handling it. The pragmatic approach seeks to smooth the integration process on the way to a more united Europe. The more dogmatic approach seeks to exploit flexibility for the purpose of differentiation and potential fragmentation.

At the root of these two visions lies a misunderstanding over the nature of flexibility as a concept—it is a tool, not a policy itself. If the endgame is significant reforms capable of tackling Europe’s many internal and external challenges, flexibility by itself cannot deliver the results Europeans want. At best, it can ease the path toward integration, but it cannot define its course. The objective assigned to the integration process opens the way to flexibility, not the other way around. Even after many debates on flexibility dating back to the aftermath of the EU’s founding Maastricht Treaty, Europeans still struggle to grasp all the implications of flexibility.

THE RETURN OF FLEXIBILITY

The United Kingdom’s vote to leave the union stirred new life into EU leaders’ discussions and revived flexibility as part of increasing European integration. Since the Bratislava Summit in September 2016, the EU’s agenda has been packed with initiatives aimed at reenergizing the union around ambitious goals. From consolidating the banking union and eurozone to reforming European defense, migration, trade, and energy policies, all manner of possible challenges have been named as items for the working agenda over the next few years. European leaders have lofted ambitious goals rarely seen in the past. The Leaders’ Agenda presented by European Council President Donald Tusk after the council’s October 2017 session reads like an attempt to reinvent Europe itself. With its extensive scope and diversity, this working program exacerbates the difficulties the EU will face when compelled to deliver on each of these issues.

EU leaders are well aware of this quandary. Between the political necessity to show that Europe is on the move and the risk of not delivering, they know they have to define the right course for reform. Theoretically, the flexible option is the perfect compromise. It has the potential to avoid a stalemate and overcome divisions by satisfying all EU members. Those who want to move forward on increased integration can do so, while those who remain apprehensive can act later when they feel ready to join the pioneering group.

It was no surprise that, shortly after the Brexit referendum, some European leaders started to mention flexibility as a natural enabler for the EU’s ambition reform agenda. German Chancellor Angela Merkel referred to “an EU with different speeds” at the Malta Summit in February 2017. The European Commission proposed five options for the future of Europe in a 2017 white paper, including one for a flexible Europe. Soon afterwards, the French government organized a restricted meeting in Versailles where leaders from Germany, Italy, and Spain reaffirmed their support for a multispeed formula. Since then, further meetings in that format have taken place. French President Emmanuel Macron, in his September 2017 Sorbonne speech, went further by suggesting that shaping this future flexible Europe could be left to those countries that shared the same ambition, implying that an avant-garde could move forward without the prior consent of all member states.

The Push Back

This growing push for flexibility inspired rapid criticism from other quarters. Specifically, Eastern and Central European nations perceived this new momentum as an attempt to sideline them. Reactions varied from open opposition to the mere principle of flexibility (Hungary and Poland) to other members that preferred to stay on hold (Croatia and Romania) or even stated their intention to be part of future flexible schemes (Slovakia and Slovenia). 

The depth of this concern was not simply linked to circumstances. As the Brexit challenge brought an ambitious integration agenda, it also reopened old wounds among the remaining twenty-seven members (the EU 27). The pressure for deeper integration seemed to suddenly emphasize current weaknesses and reinvigorate a debate between Eastern and Western Europeans that appeared to have diminished.

What reemerged was a resentment toward Western Europe’s perceived anti-Eastern bias, which Eastern and Central Europeans attribute to a long-term misunderstanding of Eastern realities by their Western counterparts. For many years, Eastern and Central European leaders have objected to Western Europe’s accusations of distorted economic competition and, more recently, a lack of solidarity in solving the migrant crisis. Conversely, they have complained of receiving exports of substandard industrial and farm products from Western traders. And, more importantly, they have emphasized the challenge of Western companies that apply lower wages in Eastern and Central European countries or repatriate their profits.

On the Western side of the union, this jaundiced and muffled feud has deeper connections with some open frustration over an enlargement process that many consider to have been hastily managed, with work uncompleted and many questions still unresolved. The recent confrontation with Poland and Hungary over diverging views on the rule of law only enhances this frustration. The current uneasiness seems to have reopened the debate that divided Western member states during the enlargement process. Those who then advocated for a more selective approach to admitting new members based on individual merit (the so-called regatta process) or for some form of transitional stage (the confederation concept) are the same who call today for flexibility as they complain the graft has not succeeded. The current interest in flexibility reflects a new desire for integration, but it also illustrates the reemerging doubts from “old Europe” over its Central and Eastern partners’ willingness and capacity to move toward closer political and economic union. Hungarian Prime Minister Viktor Orbán has rekindled the old debate around the concept of “the Europe of Nations,” which he favors versus a federal Europe that supercedes national governments. By insisting on his own restrictive vision of what a European migration policy should be, Orbán has only enhanced the suspicion that Western Europe and Central and Eastern Europe do not embrace the same vision of the future.

This resurgent antagonism has created its own counterweight. It effectively embarrassed some of the Western European countries initially attracted to the flexible option but reluctant to sponsor what looked like a perilous drift. At the March 2017 meeting convened to celebrate sixty years of the Treaty of Rome, all member states agreed to a carefully worded declaration meant to reassure every side on flexibility. Then, European Commission President Jean-Claude Juncker, in his September 2017 State of the Union address to the European Parliament, distanced himself from the flexible option that his own institution had proposed as a possible alternative. He pleaded instead for a reinvigorated version of a cohesive Europe where member states make all necessary efforts to move at the same pace. Following in his steps, Tusk underlined the same message at the October 2017 session of the European Council, insisting on the imperative that unity prevail over all other considerations.

The Compromise Over the Permanent Structured Cooperation

The best illustration of these contradictory actions and the efforts to overcome those tensions came with the launch of the first permanent structured cooperation (PESCO). Provisioned in the Lisbon Treaty—but, so far, never implemented—PESCO offers the possibility for a limited number of EU members to initiate more integrated cooperation on security and defense. The first serious debate over PESCO launched an uneasy discussion between European partners. With France calling for a limited membership, many Eastern and Central European nations fearful of being left behind, and Germany eager to avoid any major split, the debate could have easily gone sour. Yet the agreement finally reached in November 2017 brought twenty-five of twenty-eight countries on board with this new cooperation, while leaving the possibility of flexibility open at the level of individual projects. 

PESCO illustrates the difficulty of setting up a pioneering group inside the union, because it immediately runs the risk of being perceived as a secessionist plot. The natural reaction for member states was to join the nascent cooperation, although it undermined the selective nature of PESCO as foreseen in the treaty. Stemming from that precedent, flexibility in the defense sector may have to be implemented other ways, probably through arrangements of a more informal nature. The current French initiative—called the European Intervention Initiative—seems to follow that thread by purporting to limit the number of participants in this future military force and deliberately setting this action outside of the EU institutional frame.

Furthermore, the debate on PESCO highlights the risk stemming from the selective nature of flexibility, which tends to discriminate—often tacitly—between member states based on uncertain criteria. This stirs a sense of uneasiness and frustration among EU members that are left out and can feel unfairly downgraded by their peers. While intended to build more efficient arrangements for a few, tentative efforts to promote flexibility tend to end up increasing instability and uncertainty for the whole union.

THE POST-MAASTRICHT SYNDROME

This sensitivity over all things related to flexibility is not just part of the latest European crisis. It goes back to even before the Maastricht Treaty negotiations and the shaping of the future Economic and Monetary Union (EMU).

The first idea for a flexible option came as early as 1985 with cooperation over the open-border Schengen Area. It was followed a few years later by the first examples of member states being allowed to opt out from select parts of the Maastricht Treaty. Both cases represent opposite formulas for flexibility with completely different motivations.

Schengen belongs to a time when opt-outs were not even conceivable and flexibility was not foreseen as an option in the treaty’s provisions. It took shape outside of the treaty realm in a direct bilateral agreement between the German and French governments, later enlarged to the three Benelux countries (Belgium, the Netherlands, and Luxembourg). More significantly, it was inspired by a positive approach—a “voluntary” flexibility based on a collaborative endeavor open to all countries who wished to join on the condition of accepting the rules of this new cooperation. The mind-set was based on pragmatism and inclusiveness. Gradually, it succeeded in bringing most union members into the open-border framework before Schengen became part of the EU acquis, or body of laws, in the Amsterdam Treaty.

With the UK and Denmark opting out of the European Monetary Union in 1992, the EU experienced the exact opposite of the Schengen approach. These two opt-outs were the first example of what could be called “negative” flexibility. This meant that a few member states decided on their own to exclude themselves from a major step forward, while the rest of the group reluctantly took stock of that reality. At the time, this breakdown in unity was considered a concession that should not be repeated. Yet every following treaty has seen new opt-outs, making the use of this exclusion process more frequent and familiar.

The Maastricht opt-outs triggered a debate on flexibility and brought along a set of innovative ideas for a less uniform Europe. One option, embodied in German politicians Karl Lamers and Wolfgang Schäuble’s often-quoted 1994 paper “Reflections on European Policy,” proposed the creation of a “hard core” group inside the EU, comprising a relatively small number of countries fit to adopt a single currency. Without closing the door to other possible members, this option used flexibility as an exclusive device to shape the eurozone for a happy few’s benefit. A second, more comprehensive option was promoted by France at the same time as the publication of the German paper. It called for a system of concentric circles, piling up the eurozone, the single market area, and non-EU countries linked to the union through special partnerships. Enlarging the perspective of Lamers and Schäuble’s idea, the French proposition actually sketched out a completely new architecture for the European Union with three different levels of EU membership. Still today, this concept of a three-tier union finds strong supporters in some French political circles that remain skeptical of the merits of previous enlargements.

The common inspiration for these two proposals was pro-European at heart and dedicated to deeper integration. Yet, underneath the surface, these propositions responded to the double challenge of the eurozone and future EU enlargement by suggesting, effectively, differentiated membership. Even if the possibility of joining the avant-garde was not ruled out for future members, the motivation for these schemes was discriminatory and meant as an instrument for separation and, eventually, disassociation. Arguably, the promoters of both proposals were tentatively offering a political solution to overcome the anticipated risk of inefficiency and dilution. Each option, in its own way, was shaped to reinvent the European model without daring to say so. It was, in fact, a stealth refondation of the EU project through the use of flexibility. In the end, neither proposal came to fruition because the time was not ripe for a major political confrontation between member states. Additionally, transforming the eurozone into the basis for a leading core group ran against the inclusive nature of the EMU. The failure of these ideas confirmed the limitations of the dogmatic use of flexibility as an instrument for significant institutional change. 

THE DIFFERENT FACES OF FLEXIBILITY

This dogmatic version of flexibility—which is the gateway to multi-tier Europe—sets up different destinations and opens the way to diversification. The other version of flexibility is the more pragmatic option, or multispeed Europe, which accommodates the diverse positions of union members by offering different ways to reach the same goal. At the center of this distinction lies the crucial choice between unity and disassociation. One of the reasons behind the many failed attempts to introduce flexibility is the confusion between these two options.

Multispeed Europe

Multispeed flexibility is the option foreseen by the treaties. Its purpose is, within the goals set for all union members, to allow for different paces with the same destination. Some may want to move faster and others more slowly, but the common objective of a more integrated union remains identical for all. Multispeed flexibility is framed in a communautaire spirit, which means abiding by the relevant provisions of the Lisbon Treaty and monitoring by the EU Commission and the European Court of Justice (ECJ). It requires constant dialogue with the countries left behind, so that they can catch up at some point.

In its own way, the monetary union epitomizes the most demanding version of this approach: all member states—with the exception of those who opted out from the start—subscribe to the objective of this cooperation (which is an integral part of the EU framework); but they can only adhere when they fulfill the criteria for membership, thus demonstrating the possibility for differing speeds. Enhanced cooperation and PESCO, both enumerated in the Lisbon Treaty, represent the more mundane version of flexibility that applies to other fields of EU intervention. It sets the conditions for pioneering groups to lead from the front.

Other, more low-key flexible options also exist. They are not treaty-level prescriptions but are included in legislation and regulations issued by the EU Council of Ministers when concluding long, protracted negotiations on issues ranging from agriculture or fisheries to environment rules and industrial products. These flexible devices have been part of the daily practice of the EU, set up to accommodate requests made by individual member states for additional implementation time, transitional periods, temporary derogations, or review clause. Here again, these flexible arrangements are of an inclusive nature. Moreover, they always seek to remain in conformity with the principles and rules of the union to avoid undermining the level playing field of the single market.

Multi-tier Europe

Multi-tier Europe is the exact opposite. It takes the form of opt-outs conceded to individual member states—so far the UK, Denmark, and Ireland—in a limited number of sectors (the monetary union, justice and home affairs, defense, social affairs, and the Charter of Fundamental Rights) and formally inscribed in treaties. If not enumerated, the multi-tier option has no legal basis; to be implemented, it then has to rely essentially on intergovernmental arrangements. Multi-tier flexibility does not include monitoring by EU institutions or application of the EU legal principles or prescriptions unless the parties to such agreements decide to do so. For instance, the Schengen convention, in its initial form, was a multilateral agreement between a few member states with no control by the commission or the ECJ. Member states that had not taken part at the start were free of any obligation until they decided to join the convention. The model here is Europe à la carte—a looser union where the member states involved only commit themselves to the specific objectives they have subscribed to together in their ad hoc agreement.Multi-tier flexibility is a recipe for fragmentation, which is the untold intention behind this option.

In his efforts at the start of 2016 to prepare for the Brexit referendum campaign, then British prime minister David Cameron made an attempt to formalize and enlarge this same flexible option when he proposed to introduce a legal way for the the UK to not share all EU objectives. Its purpose was to allow the UK to pick and choose the goals it intended to share. This British concept of flexible Europe certainly moved the furthest away from the original intentions of the founding treaty. It was ultimately short lived: the loose agreement disappeared when the Brexit vote rendered all other efforts useless.

The Limits of Multi-tier Europe

The multi-tier formula has a breakdown effect that makes it difficult to be agreed on by all. It sets a clear-cut division between union members, highly controversial and problematic to many. For members left out of these arrangements, it feels like a second-class relegation. But for members willing to take part in a core group outside of the institutional framework, this approach implies a strong commitment to a full-fledged multilateral integration, which may entail significant self-imposed sovereignty limitations. When faced with this prospect, putative core members may find that prospect more constraining than ad hoc bilateral agreements. Past experience in the security field—like the 2010 Lancaster House Treaties between the UK and France or current bilateral military cooperation between individual member states like Germany and the Netherlands—confirms that inclination.

While the different forms of flexibility have been used with some success, experience also demonstrates that they are a poor instrument for the kind of profound transformation that is presently being debated within the EU. Deep reform requires political decisions far outside the scope of what flexibility, as provisioned in the Lisbon Treaty, can deliver on its own. Employing only the legal options included in the treaty implies that the objective of flexibility is an inclusive process that allows left-behind members to join later. But, all too often, the real intention of those promoting a flexible option is to initiate a process of gradual fragmentation. Here lies the contradiction between the pragmatic inclusiveness that inspires the formal rules for flexibility and the political motivations of those who intend to use flexibility for a more transformational purpose. Today, this distinction and its many implications are at the heart of the challenges facing the union as it struggles to find solutions on issues like migration, the rule of law, and eurozone convergence. 

THE POSITIVE USE OF FLEXIBILITY

Is it possible to bridge the gap between these two diverging conceptions of flexibility and find ground where the flexible option can genuinely add value to the consolidation of European integration?

There is a positive and useful way to use flexibility, so long as union members do not ask too much of it. As a transactional instrument to smooth transition towards more integration, flexibility can deliver—though not without problems or risks. Flexibility is not the relevant instrument to achieve a transformative process capable of morphing the present EU into a completely new organization with multiple membership status. It is hard to imagine flexibility being capable of delivering a core group of highly integrated members, a larger circle of union members sharing the single economic market, and a loose association of outside partners. Furthermore, using flexibility for this ambitious goal necessitates a clear understanding of the political stakes as well as a willingness to openly confront the deep-rooted divisions impeding the natural course of EU affairs. At present, the member states appear to be more interested in expediency than in genuine reform. With populists in Europe exploiting the anti-European argument and making headways in an increasing number of national elections, the trend among most EU leaders is to keep their heads down, find accommodations, and wait for better days to propose more innovative schemes.

With this assumption in mind, the pragmatic version of flexibility can indeed represent a timely resource to confront the hard times ahead. But to fulfill its useful purpose, it must overcome three main challenges.

    • The inefficiency risk: If flexibility undermines the purpose of union policy, it will produce counterproductive effects and not deliver. Too many flexible arrangements in the single-market area run the risk of unsettling the level playing field concept that lies at the heart of the EU market rules. The same concern applies to the eurozone, where a more flexible interpretation of the EMU rules that gives leeway to some member states to apply more lax fiscal policies can only work if these members’ responsibilities are spelled out when their sovereign debt is involved.

 

    • The disunity risk: Any flexible provision has to take into account the need to safeguard the solidarity principle that remains the bedrock of EU cooperation. If not, the union’s overall cohesiveness is under threat. Introducing derogations to the EU migration rulebook by allowing some union members to be exempted from relocation of regular migrants cannot work without some proper form of compensation. And flexibility applied to border controls can only deliver if it is done in full transparency and good faith between all union members. 

 

  • The mistrust risk: Flexibility can work if it is done with the clear intention of smoothing the way forward for all union members. Should doubt prevail on the objective of any flexible option, waning confidence will threaten the stability of the EU system. A defense initiative limited to a few European nation states can enhance security effectiveness, but, if set up with the intention of sidelining other union members, this approach risks ending in open confrontation when the union’s solidarity is tested (for instance, when the EU budget is involved).

The capacity to tackle these three challenges remains key to any successful recourse to the flexibility option.

Where Flexibility Can Help

Flexibility could be applied in several areas of EU policy: to further integrate the single market; to consolidate the eurozone; to deepen cooperation on migration policy; or even to tackle politically sensitive issues related to the rule of law. But, in each of these cases, deliverables are limited because flexibility can only help overcome some obstacles to the laborious work in progress—it cannot set up a more ambitious path to long-term integration.

The Single Market

The European single market is the natural playing field for pragmatic flexibility. A flexible scheme may help overcome some obstacles impeding integration by granting derogations or temporary transitional arrangements to individual member states. This type of flexibility is common practice in EU legislation. Conversely, it can embolden union members eager to move more rapidly on issues like tax harmonization, foreign investments monitoring, or energy cooperation. Indeed, enhanced cooperation on patent rights, binational divorces, and the new European Public Prosecutor’s Office already illustrates the possibilities offered by flexible arrangements.

But this pattern bears its own limitations by threatening to cause market distortions. While the current stalemate on tax harmonization has prompted some member states to resort to the enhanced cooperation process, this option has been unsuccessful so far, as illustrated by the proposal for a common taxation on financial transactions. The same goes for corporate taxation; Germany and France, although previously reported to be considering possible bilateral cooperation in this field as a way to jumpstart a pan-European negotiation, have now reverted to the more traditional course of injecting joint proposals into the EU talks to rekindle the overall process.

Yet this low-profile flexibility, with its toolkit of technical derogations and transitional arrangements, remains the most suitable option for unblocking some of the deadlocks stalling economic integration in recent years. The compromise reached in December 2017 on the posted workers directive, based on transitional periods and temporary derogations, is a telling illustration of how the member states are ready to accept substantial concessions to avoid the loss of the single market’s benefits and the threat of fragmentation.

The Eurozone

The eurozone epitomizes flexibility’s two main approaches: multispeed (temporary exclusion for not fulfilling eurozone criteria) and multi-tier (permanent derogation). But, today, it faces deeply entrenched opposition when considering efforts to consolidate a higher degree of economic convergence as a way to mitigate budgetary discipline. Northern and Southern Europe increasingly diverge on the economic rationale, as evidenced by eight Northern EU governments calling for a strict observance of the EMU rules and giving limited leeway for any solidarity mechanism.

As eurozone members face deep divisions, can flexibility bridge the gap? There may be room for limited flexible options: the recent French-German proposition for a eurozone budget financed directly by members’ national funds opens the door to possible tailor-made contributions; and new thinking over allowing eurozone members more space for national fiscal policies if they accept more responsibility for handling their sovereign debt could also alleviate the current pressure. Yet these improvements, however useful they may be, will still leave open the larger debate on how to reach a high degree of economic convergence inside the eurozone for the benefit of EMU stability. This is a gap that flexibility cannot bridge with its limitations as a substitute for political vision.

Migration

Differences over migration policy are some of the deepest divisions in the EU’s history. Opposition from the Visegrád nations (the Czech Republic, Hungary, Poland, and Slovakia) to the implementation of relocation quotas has been reinforced by other member states contesting the current asylum rules set up by the Dublin Convention and the new Italian government’s policy of refusing to continue bearing the largest burden of migrant inflows into Europe. The present deadlock over negotiations among the union members seems all the more intractable as EU leaders increasingly feel under pressure from populist groups that have made the rejection of migration their banner political platform.

In this context, signs of a possible recourse through flexibility have recently appeared with tentative ideas to achieve an improved burden-sharing process between union members. This would allow member states to choose from a diverse set of possible contributions, ranging from additional support for the European Border and Coast Guard to increased financial assistance to countries of transit or origin. Even on the more sensitive issues of border controls and a uniform European right of asylum, a flexible system could let those union members ready to carry additional obligations move ahead of the others.

Yet much of this flexible approach will be far-fetched if it is not embodied in a more comprehensive migration strategy, agreed on by all members, that clearly defines the rights and obligations of the union members. This requires an agreement where all components of this strategy—including border controls, the return of irregular migrants, asylum rules, resettlement arrangements, room offered to economic migration, and assistance to countries of transit and origin—are figured out and member states get a clear perception of their respective contributions. A few flexible provisions can alleviate the current political tensions of the migration challenge, but they will not bring a definitive solution.  

The Rule of Law

Tampering with some of the EU’s most fundamental rule-of-law principles has put Poland and Hungary on a confrontation course with the rest of the member states and the EU Commission. This is the most vindictive example of the divergent trends that are unsettling the EU in its attempt to tackle the illiberal democracy phenomenon.

Confronted with this unprecedented challenge, the majority of EU members have so far shown little appetite to get involved in what many of them perceive as domestic political matters. More generally, they see these trends as offshoots of the populism spreading over the whole European Union. Though critical of the policies pursued by Warsaw or Budapest, many Western European leaders worry about underlying discontent toward EU systems within their own populations. Sensing the possibility of broader destabilization, member states are increasingly cautious, leaving it to the EU Commission and its relevant agencies to monitor the failing rule of law in these member states. The commission itself seems uncertain on the right course to follow. The relevant provisions of the Lisbon Treaty call for sanctions, including the possibility of suspending voting rights, which sounds too radical to many union members.

Could flexibility offer a way out of this deadlock by accepting the political reality of a two-tier union with different obligations on the rule of law for different categories of members? The limitations of such a scheme are obvious: flexibility would mean that the EU is willing to compromise on some of the most essential European values. It would imply a breach of the basic rules that inspired the social contract all member states signed when joining the union. It would, in reality, rubberstamp the transformation of the EU into a loose alliance of nations with competing values and diverging views on governance.

Yet a dose of pragmatic flexibility should not be entirely discarded. It could provide for down-to-earth and temporary solutions that would give more time to settle the crucial issues involved (judicial reform, media freedom, NGOs’ status). Calling on the ECJ to give its opinion or keeping the dialogue open with Budapest and Warsaw could offer member states the necessary time to assess whether their mutual conception of the rule of law, beyond their common reliance on free and fair elections, encompasses the same vision of public freedoms and the role of civil society. As much as union members are rightly eager not to interfere in each other’s domestic politics, their seemingly deep divergence over what democracy means calls for clarification. In this context, flexibility can, at best, buy time; it cannot offer a political way out.  

Where Flexibility Cannot Deliver

Previous instances have shown the opportunities and limitations of the flexible approach. When dealing with the external dimension of EU actions, the shortfalls of flexibility appear even more pointed as the issues at stake (the future of enlargement, the outcome of the Brexit negotiations) increasingly call for some new thinking from the EU on its future relationship with its immediate neighbors. Resorting to some ad hoc flexible arrangements may look like a tempting solution, but flexibility rapidly shows its shortfalls in external relations as limited room to maneuver exists in the Lisbon Treaty, which only provides few options (mainly accession or associations with third countries). The current stalemate in both the whole enlargement process and the Brexit talks is living testimony to this reality.  

EU Enlargement

The EU enlargement process is undermined today by many union members, who sense strong resistance from their populations, refusing to engage on this issue. Promises made to the Western Balkan states and Turkey are lost in endless negotiations. The May 2018 Sofia Summit reaffirmed the union’s commitment to the processs in the Western Balkans but stayed clear of too precise a timetable. It emphasized the importance of more cooperation with the region by committing to an ambitious program of economic convergence that should, as Tusk put it, “use the time between today and tomorrow more effectively than before, so that our citizens and businesses are not waiting for all the benefits of EU integration.” The countries that have made the most progress toward membership—Serbia and Montenegro—may have been reassured to some extent by this renewed engagement. The others, which are further behind, do not know when to expect a precise road map.

For the Eastern Partnership nations most anxious to join the union—Georgia, Moldova, and Ukraine—there has been no clear indication either of their future relationship, as the union members keep bickering over the desirability of their accession. The same deadlock applies to Turkey, leading the Turkish government to call for an upgraded membership in the EU Customs Union in the meantime. But this prospect is fraught with the fact that many union members are satisfied with the present deadlock with Ankara.

In that context, flexibility cannot do much as there are not many available options. One pragmatic way would be to extend some of the EU’s internal policies— such as energy or air and road transports—to candidate countries as a gradual introduction to the EU single market. A more ambitious proposition would be to design an intermediary stage between candidate status and full-fledged accession. In a way, this solution recalls the third circle imagined in the post-Maastricht debate over concentric circles of membership. But it is far from certain it would be more successful this time around.

Candidate countries and many member states oppose any alternative to the prospect of full accession. Additionally, they suspect that a transitional status would become a permanent feature. Once a new flexible template emerges between full membership and the present external partner status, the whole enlargement process could well be discarded. An enlarged economic free trade area, extended to the whole EU neighborhood, could seamlessly become a substitute to membership. If only as a way to avoid an endless debate among union members, the pragmatic flexibility option, offering an upgraded version of the regional cooperation agreed to at the Sofia Summit, might appear more appealing than the more ambitious transitional-status proposition.

The same kind of assessment could also apply to the case of Turkey. French President Macron hinted at the possibility of a tailor-made partnership when he hosted Turkish President Recep Tayyip Erdoğan in Paris on January 5, 2018, but the initiative received no support from his Turkish counterpart. Since no concrete provision of this type exists for a partner with candidate status, it would first and foremost require innovative thinking and long negotiations between the union members to reach a consensus on any deal to be offered to Ankara. The lack of enthusiasm toward Turkish accession may eventually elicit more interest in this new type of partnership. And pending the final results of the 2018 Turkish elections, an upgraded association with the EU Customs Union may sound in the end like a more plausible path.

Brexit

From the perspective of flexibility, the Brexit negotiations can be summarized as a laborious attempt by the UK and the EU 27 to invent the bespoke status of a former member state. With no precedent to rely on, the EU 27 is clearly determined to prevent any undermining of the rules governing the single market and the EU Customs Union. It will limit, as much as possible, the derogations of the third-country status they wish to impose on the post-Brexit UK. For its part, the British government, amid deep domestic political divisions, is working in exactly the opposite direction, in the hope of keeping as many of the benefits of its former EU membership as possible.

In short, the UK is calling for the most extreme definition of flexibility to accommodate a unique status for its post-Brexit future. The EU 27, on the contrary, is looking for a low-key version of flexibility with limited case-by-case adaptations tailored to suit UK specificities inside the overall frame of a free trade agreement inspired by existing models (such as Canada, Norway, or Switzerland). Flexibility looks, therefore, like being of little use for the Brexit debate. And for a good reason: in its external dimension, the ambitious version of flexibility is still very much in its infancy. It will not be of much help in the Brexit negotiations, which will conclude long before any tangible flexibility applies to the EU’s external policies.

THE INESCAPABLE POLITICAL DEBATE

Flexibility can deliver when it abides by existing provisions in the treaty and looks for efficient ways of managing the existing EU system. When pulled into unchartered waters and asked to fulfill more long-term ambitions, the flexible option rapidly reaches its limits. It is not an organizing principle for the future of Europe. Flexibility excels in bottom-up approaches and low-key options. It can deliver ad hoc compromises and a long trail of piecemeal arrangements, but not a full-fledged vision of revisited Europe. Only a genuine political debate among union members can deliver that. In the absence of that debate, flexibility lacks the comprehensive scale and the sense of purpose needed to motivate any transformation of Europe.

By overly exposing flexibility, its champions risk overloading it with excess ambition. In addition, they may well be trying to avoid a debate on the future content and depth of European integration, which they desperately need to engage with in order to address the political challenges now facing the EU.

By applying flexibility to the whole set of highly sensitive problems facing Europe, its supporters overlook the precondition for success: an orderly vision of what they think a revamped Europe should look like. Yet they know that entering into such a discussion would be highly divisive and probably fruitless.

Contrary to common belief, flexibility is neither the problem nor the one-size-fits-all solution to the many challenges facing the EU. Its improbable delivery is the symptom of a more profound uncertainty about the common purpose that Europeans are ready to share together.

Expecting flexibility to singlehandedly deliver a new architecture for Europe’s future can only feed delusion and disappointment. Flexibility can help smooth the way forward. It cannot replace a clear understanding among European states about their perspectives on the future of Europe. When the EU nations recognize that flexibility cannot be the catch-all solution, then a more rational and responsible debate on the future of Europe can hopefully come to fruition.

-PIERRE VIMONT

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