German implementation error lets Al Qaeda Suspect Walk Free

As European integration gets increasingly regulatory, it will be increasingly important for parliaments in the member states to implement EU directives correctly.  If they don't, the consequences could be very serious.  For example, Germany recently had to release a suspected al Qaeda financier because of a failure, according to Germany's federal constitutional court, to implement the European Arrest Warrant in a way compatible with the German Constitution.  While the kind of technicality that lead to this blow to Germany's anti-terror efforts is likely only in questions of political integration, failure to implement laws correctly in the economic arena could also have consequences for things like public financing, social programs, and environmental protection.

Rule flaunting means lack of credible commitments

Member states have been flaunting EU rules lately. France has been illegally fishing. Italy is violating the growth and stability pact even after the rules were made less restrictive because France, Germany, and Portugal were violating the orginal rules. Greece appears to have lied about its economy to qualify for membership in the common currency. Spain can't keep its bathing waters clean. Overall, the number of infringement cases brought before the ECJ is up nearly 15%. And the ECJ and the Commission are taking notice with larger fines and harsher language, but it does not seem to be having the effect of making member state's commitment to EU rules any more credible. What's the deal? The EU has a problem making credible commitments and it isn't just because national governments are scared of losing voters. Its because of the democratic deficit.

It might be easy to look at all this rule flaunting in the isolation of domestic politics. In most cases, there are large domestic constituencies that make enforcing certain EU rules uncomfortable for national governments. For example, the Fisheries industry in France has made France weary of enforcing EU rules regarding the size of fish caught in EU waters. This "two-level" game is a common feature of international relations involving democratic governments. However, the relationship between the EU and its member states does not fit this model. Member states have agreed to abide by rules that do not have to be agreed to by domestic constituencies. This is one source of the democratic deficit. And it has member state governments running scared.

The trouble is that the willingness of Member States to violate EU rules is no longer a factor of being unable to sell a particular policy to a key constituency back home. Instead, it has become a factor of being unable to sell multiple policies to almost all constituencies back home. EU governments are scared of enforcing rules that effect small, but vocal constituencies for fear that these constituencies will unite to defeat the government' larger policy agendas and the integration project itself. The public is getting wise to this and it is not surprising that the EU Constitution went down in flames in France. All the groups who are losing out on specific policies are no longer placated by the universal benefits offered by integration, and they want the original "two-level" game reopened. The longer national governments resist fundamental changes to the structure of the EU, the greater the number of rule violations the Commission will find because member states can no longer make a credible commitment to enforcing EU rules.

Austria's university admission policies ruled illegal

The ECJ has ruled that Austria must open its universities to foreign students.  The court said any students who have earned their degree in any member state should be admitted on the same basis as an Austrian student.  Before the ruling, Austrians enjoyed the luxury of being able to study whatever they wanted as long as they passed their final secondary school exam (Matura).  The court reasoned that placing more restrictive admission criteria on foreign students violated the principle of freedom of movement for students, which is guaranteed in the treaties.  

The consequences of the court ruling is that Austria must now decide between its policy of giving qualified Austrians unrestricted access to higher education or facing a deluge of students from other member states, primarily Germany.  Even before the court issued its ruling, there were fears that students rejected by Universities in Germany would apply for admission to Austrian schools.  Austria's Education Minister Elisabeth Gehrer claimed, "It is impossible for a country of eight million inhabitants to give university places to all those who have been refused places in Germany."  And she is right.  It is unclear at the moment what steps the Austrian government will take to comply with the court's decision.

This ruling raises an interesting question about how the treaties should be interpreted.  Students are guaranteed by treaty the freedom to attend school anywhere in the EU.  However, the intent of the treaties was not to allow less qualified students to shop around for the most lenient admission standards in an academic version of social dumping.  Austria argued before the court that the ECJ should apply the "country of origin principle" whereby citizens are subject to the national provisions of their member state of origin.  This would mean that foreign students would be admitted to Austrian Universities based upon the admission criteria of the students' homelands, not Austria's standard of unlimited entry to higher education.  I think the court was right in rejecting this argument for two reasons.

First, establishing the country of origin principle as a precedent in regards to higher education could lead to a reverse type of social dumping.  Students from member states with less restrictive admissions criteria, like Austria, would have an easier time getting in to Universities in member states with stricter standards.  Instead of German students deluging Austria, more prestigious German schools would have to face an increase in Austrian students.

Second, it punishes more qualified foreign students for the sake of the lesser qualified domestic students. Overall, this would reduce the quality of higher education in the member states.  While Austria's policy of unrestricted access to higher education is noble, it is unsustainable.  Even adopting the country of origin principle would not save their universities from overcrowding since it gives incentives to dump students on other countries.  In the end, the only real solution for the Austrians is to establish admissions criteria.  Not only will it improve the quality of their universities, but it is the fair thing to do.  The ECJ was right in forcing Austria to deal with this reality.

EU budget talks fail

EU budget talks broke down last month  over  a bitter dispute between Britain and France.  Everyone agrees that the UK's infamous budget rebate has to go, but Tony Blair says any changes to rebate must be linked to reform of the Common Agriculture Policy (CAP).  This is unacceptable to the French, who are stalwart defenders of the EU's bloated farm subsides program. 
The failure of leaders to agree to a budget puts the the EU in "a deep crisis" according to the then president of the EU, Jean Claude Juncker, the Prime Minister of Luxembourg. Without significant reform of the budget, the EU's current structure will be soon become untenable.  The crisis is only exacerbated by the failure of referenda on the Constitution in France and the Netherlands a month earlier.  By delaying a final decision on the budget for at least six months, European leaders are simply delaying the inevitable battle over redefining "Europe" that the failure of the Constitution engendered.  This begs two questions: how long can they wait and how many crisis can the Union handle before it begins to fall apart?