The following blog post based on an upcoming Working Paper of the RIGHTS to UNITE project (Plan & Schiek, 2024). The full paper will be available on the Rights To Unite website and we welcome any feedback or suggestion.
The author is grateful to Professor Dagmar Schiek for her feedback on earlier versions of this post.
Introduction: why reconceptualise European integration?
European integration studies tend to place States as the centre of the integration process and outcome. Scholars have focused on the gradual pooling of State sovereignties, and the growing macroeconomic interdependencies. In other words, an integration of peoples’ States rather than an integration of States’ peoples.
European integration from this perspective remains a spectacular endeavour which requires proper attention. Yet, this framework seems ill-equipped to explore recent crises of the European project. Brexit, the rise of illiberal democracies, the surge of Euroskeptic far right parties in multiple recent elections, are difficult to explain by a State-centered, high level view of European integration. States have been moving toward an ‘ever-closer Union’ partially relying on ‘integration through law’[1]. Yet, this political and institutional integration does not seem to trickle all the way down to individuals – an oddity, when one of the points of integration through law, with primacy and direct effect of EU law over national law, is to ensure that individuals do benefit from EU law effectively.
How to then rethink integration through law away from States, and toward individuals?
Societal integration and European Private Law
Rather than the integration of political institutions and formal law, it is societal integration which requires our attention. Societal integration places individuals and their communities at the heart of the research agenda – and not the entrepreneurial few who had a strong impact [2] in the making and developing of European integration [3]. Focusing on societal (dis)integration means looking into the mundane, the daily life of individuals in the European Union. How does the European project alter their societal environment, increasing integration or disintegration? If such phenomenon is to happen, at what scale does it take place: Locally? Nationally? Across borders?
This analysis requires a definition of “societal integration” in Europe. Societal integration is a type of societalization (Vergesellschaftung), as used by theoreticians such as Weber and Marx: a process through which individuals “build” society by extending their circle of interactions beyond their family and kins. For Walby, societalization is the process of aligning different institutional domains and regimes, although often in an incomplete manner – a project, rather than an end. A “successful” societalization is a path-dependent process through which repeated interactions are incentivised and normalised, developing shared meta-norms and meta-values, in the case of integration. Conversely, societal disintegration sees the diminishing of shared meta-norms and incentives to interact.
The idea of facilitation of some interactions over others, at the individual level, is where private law comes to light as the most relevant field to focus on. Societal integration or disintegration depends on how individuals engage with each other in their daily life, be it with their employer, their landlord, their friend, or a shop they bought a good from. These are area organised by labour law, contract law, civil law, consumer law. Individuals’ interactions live and die by private law – and so does societal integration.
From EU fundamental rights to EU-derived rights
Private law creates a legal framework organising how individuals or entities connect with each other. At its core, it creates rules detailing the reciprocal rights and duties of each party, attempting to find the optimal balance between what one owes and what one is being owed. Even in a contractual arrangement, mutual obligations and duties can be conceptualised as “rights”. Rather than being only trumps against the common good, rights become a claim over the duty of another, which we can unpack to analyse interactions.
In conventional European integration studies, the notion of “integration through rights” is frequently reserved for fundamental or human rights, in line with the state-centred vision of integration mentioned above. Integration through rights becomes about fundamental rights in EU instruments, the development of European fundamental rights as part of the supranational EU law and the battle over who decides what are sufficiently high fundamental rights standards.
By turning our attention to EU private law, EU-derived rights at large become the relevant object of interest. They are not unrelated to fundamental rights, far from it – but they go beyond them. EU-derived rights include the protection against gender-based discrimination in the workplace, the right to be forgotten by Google, the right to be compensated by the airline when a flight is cancelled, the right to the portability of pensions across the EU, the right to be on EU territory for a non-EU citizen. The presence or absence of EU-derived rights, especially those falling under EU private law, are the ones truly able to create the potential for integration, able to incentivize some interactions over others, able to organise repeated interactions that organically, on the ground, develop common meta-norms and meta-values at the level of an individual’s environment.
Toward a theory of societal (dis)integration through EU-derived rights
If we are to explore EU-derived rights as a catalyst for European societal integration, what would be the characteristics of this new framework?
First, it should not be assumed that rights, by their mere presence, lead to societal integration. Rights can be facilitators of specific interactions, but there are multiple points of failures that they may expose or be exposed to. The existence of a right can for example enhance the winner/loser duality of an interaction, turning them into winner/losers of European integration at large [4]. This could be the case, because a right is a disservice to a certain party, who may decide to withdraw from further interaction, or maintain it only for lack of better option. The “losers” may also be the ones not covered by the rights framework. Moreover, a right may also exist on paper more than in practice: rights may require rights-claiming methods not available to all, or fail to truly catalyse a more diffuse culture of rights.
Second, if EU-derived rights are to be taken seriously, then societal (dis)integration can take place wherever EU law is applied. This means that under this framework, integration does not only occur across borders, but also at the local level. EU-derived rights are no longer confined to cross-border situations, especially with the rise of EU citizens’ rights. Societal integration means potentially reshaping societies at the local level – whether the “local” is situated in a border region or not. Additionally, EU-derived rights do not stop at the borders of the EU: through the EU’s varying treaties and neighbourhood policy, EU-catalysed societal (dis)integration, could take place in Switzerland, Norway or North Macedonia. Third, a research agenda centred around theory of societal integration and disintegration will need to be explored through sociolegal, empirically grounded research methods. This is necessary to account for the diversity of social political, economic and cultural contexts across the EU. If we place individuals at the core of this research agenda, there is no guarantee that a framework catalysing integration in one corner of Europe will do the same in another corner. There is also a need to explore whether different categories of rights (economic, social, digital) have similar or differentiated effects. This theory of integration will bring the scholarship away from treaties and the Court of Justice of the EU, and toward the daily routine of everyday individuals on EU soil – and beyond.
Conclusion
EU integration is in crisis – it has been for decades. Perhaps since the arresting failure of the EU Constitution was the first occurrence of a disconnect between European citizens and the European project. That disconnect has deepened over time, and the current frameworks are unable to fully explore it. A theory of societal (dis)integration through EU-derived rights will bring in EU private law as one of the key components of the European project. It will offer new insight on EU law on the ground, and identify root causes of the crisis of faith that seems to permeate European integration today: what do European citizens and non-citizens make of rights granted by the EU? Where, exactly, does the disconnect between the polity and the citizens lie? It is time to find new explanations, and new solutions, to the crisis of EU integration? Bring back the ‘people’ in the ‘ever-closer union’ front and centre of academic research could be a place to start.
[1] Mauro Cappelletti , Monica Seccombe and Joseph H. H. Weiler, Integration Through Law: Europe and the American Federal Experience. A General Introduction, De Gruyter, 1986.
[2] Andrew Moravscik, The Choice for Europe Social Purpose and State Power from Messina to Maastricht, Routledge, 1998
[3] Tommaso Pavone, The Ghostwriters. Lawyers and the Politics behind the Judicial Construction of Europe, CUP, 2022.
[4] Neil Fligstein, Euroclash: The EU, European Identity, and the Future of Europe, Oxford 2009.