The results of the Brexit referendum didn’t surprise him. He doesn’t consider referenda to be a good means for deciding whether to leave the EU or not in the first place. But whether the UK will actually make the final move in the future is even for him, with all his knowledge of European law, a matter of groping in the dark. De Kennis van Nu spoke to Koen Lenaerts, the President of the EU Court of Justice.
‘I was visiting Slovenia’s capital city Ljubljana on the night that the EU referendum results became known. I was there on the occasion of the 25th anniversary of Slovenia's independence. Though I watched the live coverage from the beginning till the end, the final outcome of the Brexit didn't surprise me.’
It may sound strange to hear these words from the president of the European Court of Justice. But Koen Lenaerts’ statement has more to do with the use of referenda in general than the current European political situation.
Mr. Lenaerts: ‘The question of what it means to be a EU member state is incredibly complex. You have to take into account so many different facts and perspectives, yet it always ends with a ‘yes’ or a ‘no’. The creation of a negative approach is also very easy. One person could have voted ‘leave’ because maybe he thought the EU is lacking in social protection, the other because he believed the British economy would be better off in the end. With this negative approach, the Leave campaign already had a lead from the beginning while it was the task of Remain to convince. This way, it is a miracle that the Leave campaign achieved 48 percent. Especially if you take into account that those people were also not completely happy. But merely saying ‘no’ to something is not easy to translate into a positive strategy.’
Mr. Lenaerts explicitly wants to emphasize that his comments are not meant to criticize former British Prime Minister David Cameron for organising the Brexit referendum. However, he believes that serious concerns regarding EU membership could be tackled more efficiently by politically elected representatives than by referenda. Whether it will truly come to a Brexit is also not clear to him. ‘The referendum contained a strong political signal. But till now, the final decision, the date and the conditions by which it will happen remain undecided. With regards to the impact of a Brexit on the Court, as long as article 50 hasn't been activitated, nothing changes. The invoking of article 50 is the most crucial element in this debate.'
‘Norway is more of a EU member state than the UK’
On a more personal note, the idea of an EU without the UK is something that would make Mr. Lenaerts unhappy. ‘I have an enormous amount of sympathy and admiration for the UK and for Anglo-Saxon Culture in general. It is a country with an enormous tradition when it comes to global trade, as well as maritime and military affairs. Furthermore, the influence of its unique common law system would diminish significantly at EU level. Only Ireland, Malta and Cyprus would still provide this kind of legal and judicial input to the Union.’
Nevertheless, even Mr. Lenaerts has to conclude that the UK’s position within the EU was always of an unusual nature. ‘I am not stressing this out of disappointment or political activism. It is merely an objective fact. Grab the Handbook of EU law. Inside you will find dozens of pages with regards to the special status of the UK concerning the euro, the Schengen Area, or the Area of freedom, security and justice. The UK has never participated in any of these projects.’
As a consequence, Mr. Lenaerts is of the opinion that a non-EU member state such as Norway (which has been forced by the EU to follow almost all of the EU legislations in exchange for access to EU’s internal market) could be considered to be more of an EU member state in a way than the UK.
Mr. Lenaerts: ‘Norway is part of the Shengen aerea. You don’t find a single border guard if you drive to Norway. Compare this situation to the queues you find at Heathrow Airport, where you can even find signs with the words “flights to the European Union”. This kind of attitude of the Britons has always been there. “We, and the continent”.’
‘The costs of non-Europe are extreme’
But the difference between the UK and the other EU Member states is even more firmly rooted than that.
Mr. Lenaerts: UK’s opinion about the EU has always been subject to the question: “how much do we gain from it and how much does it cost?” The Common Market has always been their most primary concern. The Continent took other issues more wholeheartedly: the idea of peace, stability, the enshrinement of democracy, human rights and the rule of law. A rise in solidarity has taken place between peoples who realized that they are interdependent from each other and almost had no other possibility than cooperating. This kind of feeling has never fully developed in the UK.
According to Mr. Lenaerts, the idea of Europe is also no technocratic collection of all sorts of institutions. ‘Europe is about countries who decide to cooperate on those issues they can’t handle anymore on their own: clean water, clean air, our food, sustainable energy, security, common external borders, a level playing-field regarding social protection, taxes, pensions, et cetera. All those elements can only be meaningful to EU-member states by cooperation.
Mr. Lenaerts believes that the EU’s main problem has to do with the fact that people take all these features for granted. Therefore, if the Brexit should really happen, Mr. Lenaerts thinks that it would imply a so-called test grandeur nature. ‘The costs of non-Europe would be truly put to the test. And while the UK has been given all those exceptions, other EU-states are far more integrated. To the latter, the costs of having non-Europe are even bigger, regardless of the fact you are a patient, student, tourist, businessperson, or an artist.’
Mr. Lenaerts also urges politicians and media to think more profoundly on how they frame the European project to the public. ‘Politicians from the member states should stop depicting the EU as a Russian tsar whom puts his own rules from above. These rules are part of the deals they made themselves with other EU-member States in the past. The European Commission and the EU-Court of Justice have been founded by the EU-member states to guard these rules for everyone in a correct and non-discriminatory way.’
This article is translated from the Dutch language by the same author.
You can listen to the full interview by clicking on the media file below (Dutch language only)
Radio Host: Karin van den Boogaert