Mr. János Martonyi: Law and Identity in the European Integration (ABSz, 2020. Különszám, 23-27. o.)

The European integration process has been the most successful exercise in the history of our continent. It has been and is confronted with numerous challenges and a series of crises prompting various reactions generally called reforms. (No wonder that the two most frequently used words in the history of European construction are crisis and reform.)

One of the main reasons for this success is the fundamental and indispensable role that law, legal norms, rules and regulations have played all through this complex political, economic and institutional development.

It all started as a political project ("finalité politique"), born in a given historical situation to be achieved after the failure of establishing a political union, a "European Political Community and a European Defence Community" by means and on the basis of a gradual economic integration. What was, however, unique, perhaps unprecedented in the exercise, was the method, the instrument of rulemaking for the building of a legal and institutional structure and establishing a constitutional order. This construction has been established and developed by the law and has been functioning through legal norms - legislation or case law - creating legal rights and obligations for the European institutions, Member States, and most importantly for their citizens and economic actors as well. Without this legal construction and without its core elements the primacy of community law and its direct effect, that is without an autonomous legal order, neither the common and later the single market, nor the common policies could have been put in place, and the economic integration could not have reached the level - by far not yet perfect -, where it stands now.

What was one of the main factors of success - at least of the economic dimension of the project - also gave ground for criticism addressed precisely to the preponderant role of rulemaking and the legalistic approach dominating the integration process. Critiques referred to the excesses of regulatory fervour together with the rulemaking competition between European Institutions, all this contributing to the perceived or real "competence creep" of the same institutions.

However, law is not only an instrument, a useful device of the integration process. It is, at the same time, the core element of European identity. It is often said that this identity is symbolized by the three hills; the Acropolis, the Golgotha and the Capitoleum, standing for the antique Greco-Roman cultural heritage, the Christianity and the heritage of Roman law, which directly or indirectly shaped or influenced all European national legal systems. Law is therefore an indispensable and core element of the cultural heritage upon which Europe is based and should be based also in the future.

While European construction was a political project to be put in place via economic integration, the third basic driver of any individual or collective human venture, i.e. the cultural dimension upon which a European identity could be built, has largely been neglected.

Out of the three main drivers of history of mankind in general, the trade - representing economy - performed with excellent notes; the flag - representing political power - was less successful, while the Script representing culture and based upon the heritage of the past but supposed to address the present and the future essentially failed in the case of the European integration. The result is a fundamental disequilibrium between these three dimensions. The political objective is lagging behind the economic integration, while the cultural element, a common vision and identity, is no doubt, the weakest point. In other words or to put it symbolically, the Merchant went far ahead, the Soldier only followed him from a distance and the Missionary representing ideas was falling behind.

It is often said that the European Union is an economic giant and a political dwarf. Although this statement is undoubtedly excessive, the disequilibrium between the economic weight and the geopolitical clout is evident and well reflected in the difference between the achievements of a successful trade policy and the half successes and failures of the common foreign and security policy. The unbalance between the trade and the flag is compounded and deepened by the even more serious disequilibrium between the material and the cultural-spiritual dimension, which is the ultimate source of most of the flaws, challenges, distortions and the consecutive crises the integration has been facing, right from the beginning all through its history.

It is remarkable that the law plays a significantly different role in the various fields of the integration process. The establishment and the functioning of the common and single market would have been impossible without the primary role of rulemaking, as this has been the natural cause as well as the consequence of the well-known incremental, technical, functional, reactive approach in line with what is referred to as the Monnet method or the neo-functional approach. Rules and regulations had to be made in order to harmonize and unify the vast variety of existing national regulations. For the organic and technocratic building up of a new structure, law was the only possible method, the instrument that best served the purpose of economic integration. Similarly, - to create a common commercial policy - for a long time the only perceptible area of external action, legislation and case law were the paramount devices. In fact, the scope of the common commercial policy has been progressively extended and widened not only by the subsequent treaties but also by a list of groundbreaking decisions of the Court of Justice, of which the Singapore opinion has only been the last one.

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This was certainly not the case in the field of the foreign and security policy, as it is very well demonstrated by the largely restrained scope of the legal acts and accordingly the minimal role granted to the Court by the Treaties in this area. The jurisdiction of the Court is limited to monitor compliance with the provisions on the procedures and the extent of powers of the institutions for the exercise of competences (Art. 40 of TEU) and reviewing the legality of decisions providing for restrictive measures against natural or legal persons. (Art. 24 of TEU and Art. 275 of TFEU.)

To cut it short, for trade, law is the main and indispensable tool, while for the flag, law, as a device or instrument, only has a strongly limited role.

As it has been referred to above, law has a double role in the European integration. It is not only a tool or device; it is also a basic ingredient of identity based upon the European cultural heritage. In fact, the two roles of law are closely intertwined, and one cannot function or exist without the other. Law, as a tool, is the indispensable functional device and the law as an element of identity, is the cultural-spiritual basis for the strategic objectives inseparable from the system of values and principles the legal norms are supposed to reflect. Accordingly, the functional role of law is hard to be traced in the third - weakly developed - dimension of the European construction. Here the law is not a device but the heart of the vision giving a sense of purpose for the whole exercise. The two roles of law are not only interrelated, but they also have to keep a proper balance. The tool function can only be successful in the long run if it does not go against the value-related nature of the rulemaking. In other words, the technics used have to be in full respect of the law as a fundamental component of European identity.