The Unpatriotism of the Economic Constitution?
Rights to Free Movement and Their Impact on
National and European Identity
Chris Hilson
School of Law,
The University of Reading, UK
[email protected]
Paper prepared for the workshop on
‘Political Identity and Legitimacy in the Politics of the European Union’
ECPR Joint Sessions
Nicosia, 25–30 April 2006
Draft – please do not quote without the author’s permission
1
The Unpatriotism of the Economic Constitution? Rights to Free Movement and
Their Impact on National and European Identity
Introduction
Advocates of constitutional patriotism argue against those who point to the lack of a
European ethno-cultural demos as an intractable source of the EU’s legitimacy deficit,
suggesting that a European civic identity around shared values such as democracy and
rights may provide an alternative underpinning for EU democracy. The argument is
either that the EU needs a new formal constitution because constitutions reflect and
inculcate these shared values (Habermas, 2001), or else that it already has a material
constitution in the shape of the existing Treaties and that these encapsulate such
values and encourage tolerance (Weiler, 1999).
The question addressed in this paper is the extent to which the above reading
privileges a political reading of EU constitutionalism. If, instead, one looks at the
European economic constitution, might one find that – far from helping to foster a
shared civic, political identity with the EU – it actually works against the creation of
such an identity? The four single market freedoms in particular – constitutionalised by
the Court of Justice as fundamental in nature – can be used by the Court to strike
down Member State laws which impede them. The question is whether the Court does
in fact act in this way when these national laws represent deeply held aspects of
national cultural identity. Or does it adopt a more sensitive, hands-off approach? If the
answer is the former and the EU economic constitution is seen by citizens as a threat
2
to national cultural identity, then they are less likely to feel a sense of civic identity
with the EU.
However the paper argues that identity protection is not only in the Court’s hands.
In those policy areas where the Court is more interventionist and its case law is
perceived as a threat to national cultural identity, one is likely to find binding Treatybased derogations in the shape of Articles in Accession Treaties or Treaty Protocols.
These derogations – which are typically, though not always, time-limited – can be
seen as ‘identity markers’. Where, in contrast, the case law poses less of a threat to
national cultural identity, one is more likely to see non-binding declarations attached
to the Treaties. A significant part of the paper is spent examining policy areas in
which specific cultural derogations and declarations are found, including abortion,
property acquisition, football and alcohol control. The impact of the economic
constitution on national cultural identity in all of these areas is examined, across a
range of Member States.
The Court’s ‘Cultural’ Case Law
Craufurd Smith (2004, 37-40) argues that the Court’s single market case law adopts a
hands-off stance to Member State laws where moral or religious issues are concerned,
where the goods or services at issue are intrinsically harmful, and where the issue is
constitutive of national identity. In areas outside these categories such as national
rules on food and broadcasting, the Court is much more interventionist. Although her
analysis is a useful starting point, it does raise some problems. First, there are very
few cases in the ‘constitutive of national identity’ category and, as she herself
3
recognises, other categories (such as the moral and religious one) might equally be
placed within it. The boundaries, in other words, are fluid and contestable. Secondly,
as will be seen below, there are some moral and religious issues such as abortion in
which the Court’s approach is only semi-hands-off. Thirdly, there are certain policy
areas missing from her analysis, which are important in terms of national cultural
identity, where the Court is more interventionist (notably the acquisition of property
by foreigners). And finally, the place of alcohol in her schema is difficult to place: is
it a normal food/drink, or is it intrinsically socially harmful? The answer is crucial,
since it determines how intensive the Court is likely to be.
Abortion
In Grogan,1 the Society for the Protection of the Unborn Children (SPUC) brought an
action against Irish students’ union officers, seeking an injunction to prevent them
from handing out literature advertising abortion clinics in the UK. The case was
referred to the Court of Justice which ruled that abortion was classifiable as a
‘service’ within its case law on free movement of services, but that there was no
breach of the right, because the link between the students’ unions and the service
providers (the abortion clinics) in the UK was too weak. Although, on this occasion,
the Court thus avoided confronting the clash between the right to life of the unborn
enshrined in the Irish Constitution2 and EC free movement laws, it made it clear that,
had the clinics themselves been seeking to distribute promotional material in Ireland,
there would have been a breach.3 The case was thus only semi-hands off in nature and
can be likened to the Court firing a broadside at Ireland: an inevitable future case
brought by someone with an stronger economic link would lead to the dismantling of
4
the Irish restrictions on abortion information and travel. Conscious of this, the Irish
Government therefore successfully negotiated a Protocol in the 1992 Maastricht
Treaty, preserving Ireland’s constitutional ban on abortion from ‘attack’ by EU law.4
How then does this play out in terms of identity? Religion is an extremely
important aspect of Irish identity. Historically, Catholicism helped to define the Irish
nation in opposition to its predominantly non-Catholic, British colonial adversary.
The Catholic Church has long been set against abortion and lay Catholic religious
groups have, in recent decades, been a key part of the Irish anti-abortion, pro-life
movement (Kurzer, 2001). Although church attendance has fallen in Ireland as in
most EU Member States, the Catholic faith remains a key part of Irish national
cultural identity. The threat to this identity posed by the EU economic constitution (in
the shape of the fundamental right to free movement, in connection with abortion) led
the Irish Government to seek the Protocol in the Maastricht Treaty preserving the
primacy of Ireland’s own constitutional provision on abortion. Without it, the fear was
that Ireland would vote ‘no’ in the referendum on the Treaty. Irish national identity
can be viewed here in opposition to two barbarous, irreligious others. On the one
hand, there is Britain, portrayed as the site of destruction for Irish foetal victims, with
clear post-colonial echoes of earlier instances of historical oppression (Smyth, 1998;
Fletcher, 2001). And, on the other, there is the EU – the institutions5 and many of the
Member States of which are seen as supporting abortion, and the law of which may
actively prevent the saving of Irish victims from travelling to their death at the hands
of the British (Smyth, 1998). The right to travel to Britain for abortions under EU law
also literally depletes the Irish Catholic nation (a point returned to below) and
5
recreates a shameful and commercially exploitative dependency on a former colonial
master to provide medical services (Fletcher, 2001).6
However, after the Protocol had been agreed, but before the Irish referendum, came
the X case,7 in which the Irish High Court granted an injunction, preventing a fourteen
year old girl, who had been raped and who was suicidal, from going abroad to the UK
to secure an abortion (Kingston and Whelan, 1997). The case caused a public outcry,
with the majority of Irish public opinion sympathetic to the young girl’s plight. The
case was swiftly appealed domestically and the Irish Supreme Court ruled that, in the
circumstances of the case, an abortion would be lawful under the Irish Constitution
and that there was therefore nothing to prevent her from travelling abroad to procure
one. Following the Supreme Court’s judgment in X, the Irish Government sought to
revisit the Maastricht Protocol. However, other EU Member States were reluctant to
allow it do so, fearful of the signal this might give to other States wishing to alter the
Treaty. Ireland was, however, allowed to add a ‘negative’8 declaration to the effect
that the Protocol had no bearing on the right to information or travel.9 This was
clearly directly opposite to the original intention of the Protocol, but better reflected
the post-X reality.
The X case brought to the fore the place of women in the construction of national
identity. Under ethno-cultural nationalism, women take on a significant role as
reproducers and nurturers (through mothering) of the future nation (Yuval-Davis,
1997; Smyth, 1998; Nagel, 1999). Abortion can thus be constructed as itself a threat
to the demographic viability of the nation to be allowed only in limited circumstances
within an overall policy of pro-natalism. Consent to sex becomes, at the same time,
6
consent to a reproductive social contract with the nation. Those who consent must
uphold this social contract and be denied abortions. Only those, such as rape victims,
who do not consent, are legitimate candidates for abortion. The purity of women is
also often central to constructions of nationalism: “Only pure and modest women can
re-produce the pure nation” (Mayer, 2000, 7). The fact that X was a pure and innocent
girl who was not wanton but had been violated meant that her sexuality did not
threaten national identity in this manner either, thus eliciting ‘deserving’ public
sympathy (Smyth, 1998). Given this sympathy, the Irish Government now felt that the
public would be against the Maastricht Protocol and that this would threaten a ‘yes’
vote for the Treaty. The pro-abortion movement was able to reconstruct the threat to
Irish national identity, so that it was no longer Britain or the EU as the barbarian
other, but Ireland – a totalitarian, uncivilized regime to be compared with the likes of
Ceausescu’s Romania, the Ayatollah’s Iran, and engaging in the kind of internment on
its own women that the British had previously inflicted on Irish republicans in
Northern Ireland (Smyth, 1998).10 The Irish Government thus wanted to amend the
Protocol, but in the event, as we saw earlier, was only able to secure a declaration. In
the event, Ireland voted for the Treaty with 69% voting in favour. In a referendum on
abortion that took place later in 1992, the majority of those who voted supported
rights to information and travel, thereby confirming the political wisdom of the Irish
Government’s earlier decision to soften the Protocol via the declaration.
Post-enlargement, Ireland is, of course, no longer the EU odd-one-out, culturally, in
terms of its restrictive stance on abortion. Malta and Poland are also both strongly
Catholic countries with strict abortion laws. In Poland’s case, like Ireland’s,
Catholicism is an integral part of an oppositional political identity, with the ‘other’
7
here being its officially atheistic,11 Communist past, when abortion was generally
permitted. De-legalisation of abortion was thus argued for, not only to bring the law
into line with Christian values, but also as a significant step towards deCommunisation and de-Stalinisation (Plakwicz and Zielinska, 1994).12 Threats to the
Polish nation from abortion were also constructed in non-religious, oppositional
terms. Those seeking to restrict abortion in the early 1990s made historical,
demographic claims that Poland would not have defeated the Red Army in 1920 had
Polish women aborted; argued that the 1980 revolution would not have occurred
without the population explosion of the 1950s; and compared abortions with Nazi and
Stalinist genocide (Fuszara, 1993, 245-247).
While Malta has, historically, lacked such oppositional others,13 the integration
between Church and State is nevertheless deeply engrained.14 In its Accession Treaty,
Malta successfully negotiated a Protocol stating that “(n)othing in the [Treaties], shall
affect the application in the territory of Malta of national legislation relating to
abortion.”15 Poland, on the other hand, only secured a lesser declaration to the effect
that:
The Government of … Poland understands that nothing in [Treaties] prevents
the Polish State in regulating questions of moral significance, as well as those
related to the protection of human life.16
It was stated earlier that, where there is a strong clash between the EU economic
constitution and national cultural identity, one is likely to find a legally binding
measure such as a Protocol. Where, in contrast, the clash is weaker, one is likely to
8
find only a non-binding, positive17 declaration. In relation to abortion here, in
Poland’s case the strength of the clash was almost certainly weaker than Malta’s,
hence its declaration as opposed to Malta’s Protocol. In Poland, abortion had been
easily accessible for a considerable period of time18 during the Communist era. Only
in 1993, with the resurgent influence of the Catholic Church post-Communism, were
the abortion laws tightened. In 1996, the left-wing Government sought to liberalise
them once again, only for the amendment to be ruled unconstitutional by the
Constitutional Court in 1997.19 After a brief right-wing administration, a left-wing
Government returned to power in 2001, with another attempt at liberalising the
abortion laws high on its agenda. However, the Government was also very keen on
Poland acceding to the EU and – although both the Church and Government denied it
– it is widely thought that the Government agreed to shelve its abortion plans in return
for the Church’s support in the referendum on accession (Szczerbiak, 2002). Given
that the Government had been planning to liberalise the abortion laws, it is no surprise
that it had not sought an identity-protecting Protocol as Malta had done (Traynor,
2003). Indeed, it seems that it was only bounced into asking for a declaration late in
the day when the Church had demanded one in response to an injudiciously-timed
statement by a senior ruling party member that the Government would liberalise the
abortion laws after the accession referendum (BBC, 2002).
The Acquisition of Property by Foreigners
EU law on the free movement of capital requires there to be no discrimination, as
between nationals and non-national EU citizens, in their ability to purchase real
property. Historically, a number of European states have imposed significant
9
restrictions on the purchase of such property by foreigners. Given that the EU
economic constitution requires the dismantling of these national laws, many such
states, on seeking accession to the EU, have attempted to secure permanent or
temporary derogations from the EU capital provisions relating to real property. Again,
the question here is whether these EU economic laws clash with national cultural
identity. As we shall see, there is such a clash, which explains why one finds a
number of identity-marker Protocols in this field.
Land or territory is central to notions of sovereignty (Kostakopolou, 2001, 154159). Externally, in international law, state sovereignty is defined in terms of
exclusive control over a territory. Internally, state sovereignty is about the relevant
citizens who constitute the sovereign people or demos; and the constituency of the
sovereign people is typically defined territorially. The ideal of the nation-state is, of
course, that the territory of the relevant people or nation coincides with the territory of
the state. Where the two do coincide, myths of national territory have often been an
important means of fostering national (and thus state) loyalty and identification.
Nationalism, land or territory, and identity are thus closely intertwined. As Wood
(2004) points out, the variants of nationalism and identity at play here are ethnocultural (as opposed to civic) in nature. In Verdery’s (1998) anthropological account
of land ownership in Romania, the ethno-cultural link with the land is brought out
particularly forcefully in terms of a shared history. Land is regarded as, literally,
inalienable, because of its link with ancestors who have laboured, shed blood in battle
and, in death, become one with it. As Verdery states (1998, 300), “Land would appear
to be very significant as an inalienable symbol of group identity, not only because of
10
the modern association of states with territories but also because of the connection
between ancestors and soil.”
The potential of EU law on free movement of capital to undermine national cultural
identity is thus clear. EU law sees property in neutral terms as ‘real estate’, and its
sale and purchase as a straightforward contractual bargain, barriers to which constitute
an interference with an efficient single market (Wood, 2004). Land must be alienable
to residents from other Member States: there must be no discrimination, in national
land ownership law, between nationals and non-resident aliens. With a number of the
new Member States, the most widely expressed (because least controversial)
objections to opening up their property markets in this way were phrased using a
similar market-based logic. The fear expressed was that relative differences in land
values and wealth as between the old and new Member States would lead to
acquisition of significant areas of land by foreigners. To prevent this from occurring
could not be regarded as discriminatory because equality involves the idea of treating
like cases alike. And since foreigners and nationals are not in a like position as
regards their wealth, treating them differently is not discriminatory. As the Polish
position papers on accession put it:
Poland aims at providing Polish residents with a share in real estate acquisition
on par with that enjoyed by citizens of the European Union. However, [the]
financial capacity of entities originating in the EU Member States can impair
equality of opportunity for Polish citizens in the field of real estate acquisition
(Poland, 2000).
11
However, in relation to derogations from the Capital acquis, this tells only half the
story. Relative wealth differentials do not of themselves account for the Protocols,
since Denmark negotiated an opt-out relating to second homes in the Maastricht
Treaty despite its relative wealth (Wood, 2004, 595), as indeed have other Member
States, such as Austria in its Accession Treaty. The missing part of the story is
cultural rather than economic. The cultural rationale for the Protocols varies however
and is not necessarily along the lines of Verdery’s extreme ancestral history account.
In the case of Austria, for example, “the imagined scenario of a tribe (the “Austrians”)
taking posession of a piece of land which will then become its legitimate territory, is
missing” (Langer, 1999, 166). In the Polish position papers, alongside equality, ones
finds reference to the sensitivity surrounding land ownership. This cultural sensitivity
is not, however, concerned with an ancestral-based opposition to all foreigners but is,
rather, related to a distinct oppositional identity to the Germans in particular, based
on the conflict between the two countries during World War Two. This specific,
historical anti-German sentiment similarly existed in the case of the earlier Danish
and Austrian Protocols; however, there, the concern was territorially limited (rather
than relating to the purchase of any national territory) and linked with a specific,
ongoing cultural use of land (for recreation). In both instances, the sites of concern
were important destinations within the national tourist landscape, such as parts of the
Tyrol in Austria and the coastline of Denmark. In relation to the latter, as Skak
observes:
Danish citizens and parliamentarians feared that German citizens would
discover the natural beauties of the Danish coastline to the North Sea and buy
holiday houses on this coast. This could limit the possibilities for Danes to go
12
to the coast in the popular way of spending vacations and weekends in a
summer cottage near the sea … animosity against Germans after the
occupation of Denmark during the Second World War probably also played a
role (Skak, 2002, 2).
While Poland’s Protocol – like Denmark’s and Austria’s – concerned second
homes, it went beyond this to encompass agricultural and forestry land. A significant
proportion of the Polish population is employed in agriculture and, not surprisingly,
agricultural interests are therefore strongly represented in the Polish political system
(Batory, 2003). In a 2002 survey, four out of five Polish farmers expressed a fear that,
following accession, foreigners would buy up Polish agricultural land and threaten
their livelihoods (Batory, 2003). Without the Polish property Protocol, the Polish
Government feared that the agricultural lobby would prejudice the outcome of the
referendum on accession.20 In terms of cultural identity, the perceived threat was that
the Polish tradition of small-scale farming would be lost, replaced instead by the
“excessive concentration of land and [the] emergence of gigantic real estates”
(Poland, 2000, 77) alien to the Polish way. Much of Poland escaped land
collectivisation during Communist rule and the continued presence of an agrarian
landscape of “numerous unconsolidated strips” is important to Polish national identity
in part due to this successful opposition to the pressures of the Soviet command
economy (Unwin, 1999, 116-117). Besides this oppositional element, the threat to the
nation can be viewed in a variety of ways. Food is central to national cultural identity
and farmers are literally responsible for sustaining the nation: having foreign farmers
growing food for you may thus be seen as a form of national security threat.
Furthermore, landscape is crucial to the construction of national identity, and
13
traditional, small-scale farms are often regarded as a central part of an idealised,
‘natural’ landscape. Finally, the peasant movement is said to enjoy a particular place
within Poland’s foundation myths – “an idea which has for a long time provided
sustenance to the concept of individual peasant farms set in a very specific type of
landscape” (Unwin, 1999, 113).
As for forest land, to the Poles, the forest stands for the continuity of the nation and
represents, at the same time, a site of resistance, safe retreat, freedom and alien
ungovernability (Schama, 1995). Schama vividly depicts the way in which Polish
forests such as Bialowieza play an important role in the construction of an
oppositional identity in relation to Russian and German invaders. Memories – of, in
particular, Hermann Göring’s attempts to ethnically cleanse Bialowieza of Poles and
to create an authentic Teutonic wood – live on (Schama, 1995, 37-74), and it is thus
not hard to see why the threat of a more modern German take-over of Polish forests
might be resisted.
Football
The impact on identity of the famous ECJ Bosman21 ruling is multi-dimensional. The
case involved a challenge brought by a footballer, who claimed that the transfer rules
and rules limiting the number of foreign players were contrary to EC law regarding
free movement of workers. The ruling transformed national cultural practices. For
present purposes, most significantly, restrictions on foreign players were overturned
and, as a result, many clubs in Europe now field teams with few ‘home-grown’
players. The question is, however, what effect this aspect of the Bosman ruling has
14
had on identity? Has it produced a clash with national cultural identity in the same
way as the property and Irish and Maltese abortion examples?
A trite response would be that EU economic law specifically excludes national
teams from the scope of the Bosman ruling.22 Thus, the England team is not required,
by EU law, to open up to nationals from other Member States. On this reading,
Bosman’s dismantling of the overseas player restrictions – if it undermines identity at
all – is likely to undermine an urban or regional identity rather than a national one.
In reply, one might observe that if EU economic law produces a clash with identity,
this is harmful from a pro-integration perspective, no matter whether the relevant
identity is national or sub-national. The question therefore remains whether Bosman
has produced a clash with sub-national identities. It would appear not. As Advocate
General (AG) Lenz pointed out, there had for some time pre-Bosman, been a move
away from employing local players towards more nationally composed club sides.23
This did not seem to have dented local identities and thus employing foreign players
should not impact negatively on local identity either.
Whether it does so depends on the extent to which supporters adopt an ethnocultural or a civic nationalist frame. On the former view, someone can only be, say, a
Manchester United player if he comes from Manchester, or at least the UK. This
approach is exemplified by UEFA/FIFA’s Michel Platini, when asking: “Is it okay
that there are a dozen Africans playing for Beveren, in Belgium? I mean, why do they
still call themselves "Beveren"? Why do they still play in Belgium?” (Platini, 2004).
On the other hand, supporters might adopt a more civic frame, so that it is loyalty to
15
club and shirt that matter and not the players’ origins: as long as a player is able to
help the club win, that is what counts. According to AG Lenz in Bosman, the “great
majority” of fans adopt the latter view, being “more interested in the success of their
club than in the composition of the team.”24
From this latter perspective, nationals from other Member States pose no problem
for identity. Far from it – as Roche states, if anything “the symbolic identifications of
local fans with these new cosmopolitanized clubs and of the clubs with their host
cities seem to have often intensified in spite of [the significant undermining of
objective connections between clubs and communities].” (Roche, 2001; 2004, 22).
However, identification with winners is not that hard to fathom: as fans have seen
clubs with more foreign players being successful, a desire to emulate that tangible
success becomes more important to group identity than a more intangible
(ethno)cultural ‘authenticity’. One might also seek to argue, as AG Lenz did,25 that –
far from preventing supporters from identifying with the team – foreign players such
as Eric Cantona at Manchester United and Jürgen Klinsmann at Tottenham have been
the object of special affection. However, this latter argument needs to be treated with
caution. After all, the above examples came from teams where overseas players
remained an exotic minority. If one compares this with more recent English sides such
as Chelsea and Liverpool, then one finds that the English minority players such as
Frank Lampard and Stephen Gerrard are the principal focus of fan identification.
Next, it might be argued that the Bosman ruling has indeed produced a negative
impact on national identity in a number of respects. First, one might claim that the
influx of foreign players has changed the character and identity of the English game in
16
terms of playing style. As Graham Taylor, former England manager, once said: “Part
of a nation’s culture is the way it plays its sport. And the British way is with passion
and commitment” (Kuper, 2002, 210). Just as the Dutch, from the 1970s through to
the mid-1990s developed a reputation for an intelligent, attacking style of play relying
on spatial awareness, positional flexibility and precision passing known as ‘Total
Football’ (Winner, 2000), so the English league in the 1970s-1980s had a reputation
for a hard, spirited, physical style of play involving copious use of the ‘long-ball’ or
‘kick and rush’. However, in the 1990s, the influx of foreign players undoubtedly
changed the identity of the English game to a more Continental one, focused on
maintaining possession, passing and technique. Nevertheless, while the identity of the
English game has undoubtedly been changed, few would claim that this has been to
its detriment – quite the opposite. In other words, Bosman has had a positive rather
than a negative effect on identity here.
Bosman’s potential indirect impact on national teams must also be considered. For
Member States with rich leagues able to pay sizeable player salaries – and which are
therefore net importers of players – the fear is that home-grown players will not be
given the chance to play in sufficient numbers at the highest level, leaving less choice
when selecting the national squad. This fear was expressed in Bosman only to be
rejected by AG Lenz, who stated that it was “unlikely that the influx of foreign
players would be so great that native players would no longer get a chance.”26 Indeed,
such a fear does not appear to have materialised in respect of the English side in the
2006 World Cup: some have expressed the opinion that England is fielding its
strongest squad for many years; and this despite the large number of foreign players in
the Premiership. Neither does the argument stand up in relation to Member States
17
with financially weaker leagues such as France and Denmark, which are net exporters
of players. While their club sides may be weakened as a result of Bosman, the
national teams benefit from the exposure to top quality football their nomadic players
receive in other Member States (Magnusson, 2001, 61).
Finally, observers of the game have commented on how, during recent national
team competitions such as the World Cup or the European Championship, the
identification of some fans with their national teams has been weakened as a result of
divided loyalties with the national teams in which players in their club side feature. In
the case of Arsenal for example, with many French players such as Thierry Henry and
Patrick Vieira in their side, a number of English Arsenal supporters felt drawn to
support ‘their’ players in the French team rather than England during the match
between the two sides in Euro 2004 (Levermore and Millward, 2004, 6-7). Nor is this
peculiar to England: in Italy, loyalty to and identification with foreign club players
has also been known to take precedence over national identity (De Biasi and
Lanfranchi, 1997). Nevertheless, this point has to be placed in perspective. Most clubs
have few foreign players of the same nationality. And even with clubs like Arsenal,
divided loyalties would only have been felt in matches against France; even then, it is
unlikely that many English Arsenal fans would truly have wanted France to win.
In the light of the above analysis, while it cannot be said that Bosman has had no
effect on national identity, neither is the evidence of such a clash unequivocal. It is
thus no surprise to find that, although bodies such as UEFA and FIFA have sought a
cultural exception from the free movement rules for sport in the form of a binding
Protocol, such requests have so far been unsuccessful (Parrish, 2003). Instead, all that
18
have been issued are non-binding declarations – one annexed to the Amsterdam
Treaty,27 and a later declaration at the Nice European Council in 2000 issued as a
Presidency Conclusion28 (Parrish, 2003).
Nordic Alcohol Policy
The situation regarding Nordic alcohol policy is complex, in that we find both nonbinding declarations and binding, Treaty-based derogations. The derogations involve
travellers’ allowances for alcohol purchased in other Member States.29 Regarding the
declarations, four Nordic countries – Sweden, Finland, Norway and Iceland – initially
issued a joint declaration on alcohol monopolies which was attached to the 1992
agreement setting up the European Economic Area (EEA).30 Later, on accession to the
EU, Sweden and Finland again issued a declaration which was attached to their 1994
Accession Treaty, referring to an exchange of letters with the Commission in which
the latter had stated that it did not itself consider it appropriate to take enforcement
action against the states’ retail monopolies, provided that their production, wholesale
and import monopolies were dismantled and discrimination against products from
other Member States was precluded.31 At this stage, although it appeared likely that
the Court would adopt a hard line on the non-retail monopolies,32 it was not clear
what its approach to the retail ones might be. Only later, in 1997 with the Franzen
case,33 did the Court rule that retail monopolies did not, generally, conflict with
relevant single market law.
In the past, Nordic identity was constructed around a strong distrust of alcohol. This
distrust was associated with a strong, religious temperance movement and was based
19
on assumptions about national character (Kurzer, 2001). The Finns and Swedes were
seen an introverted, taciturn people who relied on drink to open them up but who
lacked self-control and thus had a tendency towards destructive binge-drinking
(Kurzer, 2001). Were one to look just at the declarations above, it would be tempting
to conclude that alcohol no longer played such a defining role in the construction of
Nordic identity. After all, the initial hypothesis of this paper was that one is more
likely to find declarations where identity is not significantly threatened by the single
market rules. However, while it appears true that attitudes to alcohol have moved
closer to European norms – especially in Finland and to a lesser extent in Sweden
(Holder, 1998; Ugland, 2000; Kurzer, 2001) – that does not account for the binding
derogations from the standard travellers’ allowances for alcohol. Again, on the initial
hypothesis, that would suggest that issues of national identity around alcohol were
still seen as important.
The answer, it seems, is that identity is but one of the independent variables which
may produce an effect on Protocols and declarations as the dependent variables, and
that other independent variables cloud the situation here. It might, for example, be
argued that one finds a binding measure on travellers’ allowances not because of a
threat to identity, but because national finance ministries are wary of losing
considerable sums of money in excise tax revenue if citizens can avoid high domestic
taxes by shopping abroad (Kurzer, 2001, 92). There is certainly little evidence that the
binding derogations on travellers’ allowances were necessary – as with some of the
previous examples above – in order to convince Finnish and Swedish public opinion
on the merits of accession: the public in both countries was strongly in favour of
joining the EU in any event (Ugland, 2000). Indeed, had they been asked, subsequent
20
surveys suggest that public opinion would have been against maintaining restrictive
travellers’ allowances (Kurzer, 2001, 93-94).
Conclusion
There are two principal conclusions to be drawn. The first is that while there is an
association between threats to national cultural identity and binding measures on the
one hand, and lesser threats and non-binding declarations on the other, a stronger
causal relationship is harder to establish. The impact on identity appears to be one
important independent variable affecting the choice of measure adopted, but there are
others. Threats to a state’s economic (as opposed to cultural) interests may, for
example, lead it to press for a binding derogation. The Nordic derogation on
travellers’ allowances, for example, could conceivably be explained in this way. It is
also possible, albeit unlikely, that ineptness or delay on the part of a state might lead it
to having to accept a declaration, when a binding measure would have been a
possibility. Some might claim that this was the case with Poland’s rather late in the
day abortion declaration (when compared with Malta’s earlier negotiated Protocol).
However, it was argued earlier that the Polish government at the time had no real wish
to prevent the liberalisation of abortion; thus, if delay on its part had meant that a
declaration was all that could be secured, it would not have been unhappy with this
outcome. Finally, of course, all Member States have to agree unanimously on a
binding derogation: although such agreement will often be forthcoming in order to
allow the relevant Treaty to proceed, there may be some instances where it is not, and
thus where the only option is a unilateral declaration.
21
Secondly, the case examples in the paper support the conclusion that, though it has
the potential to threaten national cultural identity and therefore EU civic identity, the
EU’s economic constitution has managed to avoid this fate via a combination of
identity preservation by the Court and by the Member States themselves acting
intergovernmentally to grant specific, binding derogations. The potential unpatriotism
of the economic constitution has, in other words, been kept effectively in check by
judicial and political means.
Notes
1
Case C-159/90, [1991] ECR I-4685.
2
Art. 40.3.3.
3
Above n. 1, paras. 25-27.
4
Protocol 17: “Nothing in the [Treaties] shall affect the application in Ireland of Article 40.3.3 of the
Constitution of Ireland.”
5
In particular the European Parliament.
6
Although the latter point has also been seized upon and inverted by pro-choice activists, who argue
that the hypocrisy of this practice is good reason for making abortion available within an independent
Ireland (Fletcher, 2001, 584).
7
AG v X [1992] 1 IR 1.
8
Negative because it sought to weaken its previously more stringent position in the Protocol. Cf. the
other ‘positive’, declarations considered elsewhere in the paper.
9
The declaration states: “the Protocol shall not limit freedom either to travel between member States or
… to obtain or make available in Ireland information relating to services lawfully available in member
States.”
10
After X, attempts were also made to replace the view of abortion as a barbarian colonial threat to
Irish cultural identity with one describing it as practised by St. Brigid, the most significant Irish female
saint, thus representing an embodiment of an ancient, indigenous Irish Christianity (Fletcher, 2001).
22
11
Although, in practice, the Catholic Church was broadly tolerated in Communist Poland.
12
Although as Plakwicz and Zielinska note (1994, 206-207), the Communist authorities used abortion
as a social policy, liberalising or tightening it according to prevailing social need (eg increasing female
employment, or the birth-rate). As for de-Stalinisation, they point out that the Stalin era was in fact
characterised by a complete ban on abortion.
13
Though, as Baldacchino (2002) states, the EU now arguably represents the ‘other’, helping to shape a
Maltese nationalism.
14
Ibid.
15
Protocol no. 7.
16
Declaration L39.
17
As opposed to Ireland’s negative one – see n. 8 above.
18
Since 1953.
19
Under the old, Stalinist-inspired, Polish Constitution, itself replaced in 1997.
20
In the end, 77% voted in favour of EU accession and 23% against, with a turnout of 59%.
21
Case C-415/93, [1995] ECR I-4921.
22
Ibid., para. 127.
23
Para. 143 of his Opinion. See also the Court’s judgment at para. 131.
24
Para. 143. Empirical evidence supports this – e.g., pre-Bosman, over 70% of surveyed (Glasgow)
Rangers fans were against UEFA’s previous three ‘foreigner’ rule (Moorhouse, 1997, 191).
25
Para. 143.
26
Para. 146.
27
Declaration 29: “The Conference emphasises the social significance of sport, in particular its role in
forging identity and bringing people together. The Conference therefore calls on the bodies of the
European Union to listen to sports associations when important questions affecting sport are at issue. In
this connection, special consideration should be given to the particular characteristics of amateur
sport.”
28
Declaration on the Specific Characteristics of Sport and its Social Function in Europe, Nice
European Council, 7-9 December 2000. The key passage reads: “even though not having any direct
powers in this area, the Community must … take account of the social, educational and cultural
23
functions inherent in sport and making it special, in order that the code of ethics and the solidarity
essential to the preservation of its social role may be respected and nurtured.”
29
See the Swedish/Finnish Accession Treaty, Annex XV, section IX. Taxation, para. 3.
30
The Declaration reads: “Without prejudice to the obligations arising under the Agreement, Finland,
Iceland, Norway and Sweden recall that their alcohol monopolies are based on important health and
social policy considerations.”
31
Declaration 50: “The Conference at Ministerial level was informed at its 5th meeting on 21
December 1993 of the exchange of letters between the Commission and Finland and the Commission
and Sweden on alcohol monopolies.” See further AG Elmer, n. 33 below, paras. 4 and 122.
32
Soon confirmed, later in 1994 by EFTA Case E-1/94 Restamark [1994-1995] EFTA Court Report
15, involving the Finnish import monopoly.
33
Case C-189/95, [1997] ECR I-5909.
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