Xavier Groussot, Anna Zemskova, The Resilience of Rights and European Integration in A. Bakardjieva Engelbrekt and X. Groussot, The Future of Europe: Legal and Political Integration beyond Brexit (Hart Publishing, 2019), Forthcoming (July 29, 2018). Available at SSRN: https://ssrn.com/abstract=3222099
The White Paper of the Commission on the Future of Europe delivered last year has relaunched the discussion on integration through law within the context of the Lisbon Treaty by proposing five scenarios. In particular, the President Juncker in his State of the Union Speech from September 2017 proposed a sixth scenario for the Future of Europe based on three ‘unshakeable principles’: freedom, equality and the rule of law. This strong right-based vision of the future of Europe is, arguably, not unproblematic given the irrefutable fact that EU rights have been politically and legally contested in the recent years. To go this way would not change much to the present operation of the EU legal order and would, in fact, merely confirm the possibility of the status quo for the future of European integration. To go this way would also lead to the possible endorsement of the argument that rights may degenerate into mere ‘talks’ and be used, as a result, for the legitimation of the status quo. This possible ‘(non)-tournant’ of the process of European integration begs one essential question that we intend to answer in this contribution: why are the rights so resilient in the process of European integration? The starting point of our reflection lies in the ‘Ever Closer Union’ Clause enshrined in Article 1(2) of the TEU, which is here viewed as reflecting the legacy of neofunctionalism. Article 1(2) TEU has sadly once again come under the spotlights of European (dis)integration due the Brexit referendum and the well-known point made by David Cameron that the European Union and its Member States should annihilate the very existence of the ‘Ever Closer Union’ clause. Our main argument in this contribution is that the resilience of rights is intimately connected to Article 1(2) TEU and its constitutional spirit. This contribution is divided into two parts. The first part analyzes the spill-over of rights into the EU legal order by taking a historical perspective and by explaining the institutionalization of the ‘Ever Closer Union’ clause by the judicial branch (Section 2). The second part looks at the concept of rights and their internal logic (their ‘voice’) from a functionalist and analytical perspective (Section 3).