Brexit is no excuse to start misunderstanding the EU

There's an inescapable link between the discussion of Brexit and that of the future ethos and shape of the EU of 27. But does that necessary link make it an opportunity to be embraced? Should we be seizing the moment to refashion and redesign the architecture of the European Union?

We've got to change the treaties, if only to take the United Kingdom references out. So why not a full reworking, to recognise and institutionalise the "reality" that the UK has articulated, the need for a different kind of union, a vision shared by others? How about two unions in one? Concentric circles, with the most committed integrationists in the middle, and others, like the UK, in an outer association of those interested only in economic ties?

Or so argues Federico Fabbrini, professor of European law and head of Dublin City University's Brexit institute.

The British position is a 'misunderstanding' – some would say a deliberate obfuscation – of the EEC's foundation as an explicitly political project

But mention treaty changes – even the word referendum – to Irish officials or politicians and you see them age. Treaty changes necessitated by the specific requirements of Brexit are one thing; an opening of the whole can of worms entirely another.

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Fabbrini was in Brussels on Monday to host, with the Irish representation to the EU, a well-attended Brexit seminar that heard assessments of the state of play in negotiations from commissioner Phil Hogan, a member of the EU task force, and a senior Irish diplomat.

Fabbrini's lively contribution rehearsed an argument he has made in several articles. It's not Euroscepticism but a "realist" Europhile's concern that the European integration project may be stalled irrevocably. And primarily by failing to address profound differences about the finalité, or end state, of union integration. Unanimity means the slowest mover can determine the pace of advance.

But giving credence to the British line that “we never joined up to political union, only a common market”, and the suggestion other states share that analysis, provoked several members of the audience to demur forcibly.

For one thing the distinction between “economic” and “political” union is somewhat artificial, and, as Fabbrini admits, the British position is a “misunderstanding” – some would say a deliberate obfuscation – of the reality that the EEC was founded as an explicitly political project. Economic integration was the means to an end; indeed, as one member of the audience pointed out, but for a parliamentary mix-up in France the EEC was almost founded as a defence union.

Fabbrini is right to say that the new model of "future relationship" being negotiated between the EU and UK, a trading partnership with much access to the single market and EU programmes, could become a template for other "association" relationships with "third countries" – although there are already good templates in the arrangements that countries like Norway, Switzerland, Ukraine and Turkey have with the EU.

But the idea that such a formalised framework of concentric circles could also accommodate some of the “difficult” member states as second-class members is far more problematic.

In recent years the EU has embraced a new form of integration , “differentiated integration”, in which it tries to accommodate those who want to move forward more quickly and those reluctant to do so – but without creating a hierarchy of members, or unpicking the basic institutional structure of the EU, a bargain in which all member states preserve equality in ultimate decision-making.

It is precisely the most 'difficult' member states that are most resistant to any institutionalisation of a multiple-speed EU

"Europe has developed in variable geometry," Fabbrini points out in a recent paper. "Two countries (the UK and Denmark) have a derogation from adopting the common currency; two countries (the UK and Ireland) have an opt-out from Schengen; and three countries (the UK, Poland and the Czech Republic) have obtained a protocol that seeks to exempt them from the application of the EU Charter of Fundamental Rights.

“Moreover, 25 member states have embarked in the process of enhanced co-operation to set up a unitary patent court, and 10 euro-zone countries are discussing the introduction of a financial transaction tax.”

And he could have mentioned the 25 member states that signed up in December to the military co-operation project Pesco.

But preserving the essential equality of members, even if they are proceeding at different speeds, is vital. It is precisely the most “difficult” member states, like Poland and Hungary, so loath to share in common tasks like easing partners’ refugee burden, that are most resistant to any institutionalisation of a multiple-speed EU.

They fear being treated as second-class members, and see in it an opportunity for the wealthier states to step back from their willingness to help poorer states catch up through cohesion and structural funding. “Solidarity, brothers,” they say, “is the backbone of the EU.” Although it may sound strange from those quarters.

The UK’s declaration of intent to depart was seen by some as likely to herald a rush for the exit door. Instead, as many observers have noted, it led if anything to a renewed spirit of togetherness and determination not to see the project undermined by an always-reluctant member.

Hard cases make bad law, and it would be mistaken to see Brexit as a rationale for institutionalising a profound “misunderstanding”.