André Lima Machado (Master in European Union Law - UMINHO) 

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1. Introductory remarks

Last May 10, the Head of State of the Portuguese Republic, Marcelo Rebelo de Sousa, addressed the European Parliament in Strasbourg on the occasion of the Europe Day celebrations.[1] President Marcelo – as he is affectionately called by the Portuguese – called for a stronger Europe, a Europe that leads and anticipates, rather than a Europe that follows events. He went on to explain that the Portuguese believe in the future of Europe: in a Europe that is not the Europe of Heads of State, Heads of Government, or party leaders, but rather a Europe of European women and men, because without both there is not and there never will be a strong Europe, within itself and in the world. This is the challenge – said President Marcelo – there is not much time left to anticipate it, and the millions of Europeans deserve it. 

Moreover, this is a recurring idea in President Marcelo’s speech: “Europe cannot waste time”. And why is that? Because the circumstances of integration have changed substantially. The Portuguese President began by recalling the last time he spoke to MEPs, seven years ago, at the start of his first mandate. It was another time, another world, another Europe. He listed the changes that had occurred since then, such as the pandemic, the UK’s decision to opt out, and the Russian invasion of Ukraine. “In another time, another world, another Europe”, people still believed in the international order, in the existing balance of power, in the advancement of human rights, in the victory of diplomacy over war. People believed in the reform of universal institutions (even if postponed) and in the European security inherited from the 20th century (even if weakened). They believed in the primacy of globalisation, multilateralism, and common causes.

Until recently, many people thought it would be possible to put off reforms, to put off rapprochement between Europeans, to put off enlargements. But this time of postponement is over. And it ended abruptly, with two years of the pandemic and another year of war. The Portuguese President explained that the last European legislature was a cycle of emergency, with the pandemic and its phases, with the economic standstill and its social effects, with the war and the energy crisis, with inflation and its consequences. The problem is that in emergencies you only manage day to day. There is less time to consider the big questions facing the Union, the Europeans, all of us. And there is only a year left before the European elections.

This is why we need to think about the sacrifices being made by millions of Europeans; we need to speed up economic recovery to bring the citizens closer to the Union, and not minimise the immediate political effects of inflation, pandemics, and war. There is an urgent need to clarify the economic and financial guidelines for the future, because this economic and financial governance must promote social convergence between Europeans. There is an urgent need to invest in solidarity between generations and in rejuvenating the Member States’ economic, political and social systems. Otherwise, strategic vacuums are opened, to be filled by what we refer to as populist and anti-systemic movements. And if this happens, it will be due to the fault of the current European leaders – and not the responsibility of inorganic populisms and movements. In other words, the responsibility will lie with the democrats who failed to act accordingly in due time.

2. How internalisation of law by citizens usually occurs in modern-day States

The Portuguese President’s speech makes us consider the internalisation of Union law by European citizens – and to what extent the weaknesses of this internalisation can compromise democratic values. When we talk about the internalization of law by citizens, we refer to the process of law and it being understood, internalised and guiding the actions of each individual that makes up a society. Since human beings are not machines, this is not straightforward and simple, there being many aspects in this process. One must also understand that legal systems today are ultra-complex, and as such, understanding them can be quite difficult. It is reasonable to expect that even a law graduate is not overly capable of understanding all the intricacies of law, hence it is unreasonable to expect the average citizen to have this knowledge. Despite this, most people have a basic notion on how politics works and how this produces legislative output.

Moreover, law alone is not sufficient to guide the action of every human being. Law is constantly being violated, and in these situations the pairing punishment is either given – and the law works – or its enforcement structures ignore the issue at hand.  Citizens in their actions also tend to comply with social norms, not exclusively legal ones. Social norms correspond to expectations about the appropriate behaviour that occurs in a group context.[2] We regularly encounter social norms and laws operating together in many ways[3] and social norms are frequently formalised in law, and usually both will coincide.[4]

In fact, for new law to be internalised by its target demographic, it needs to be internalised by the group, and be transformed into a social norm, in case it has not been so before, if maximum effectiveness is to be achieved.

3. How the internalisation of European law is (not) occurring

3.1. The EU as a complex structure to be understood

The general population is used to legal norms being issued by State entities, be they at national or local level. These are the power structures that the average citizen understands best. When individuals are exercising their democratic right to vote at a national level, it is safe to assume that they have a basic understanding of whether they are voting for a position that is one of legislative or executive power.

The EU, however, is a particularly recent structure. It is a structure that is always evolving and changing shape. The checks and balances are very complex in the EU. The easiest and most basic unit of a democracy is the vote, and voting power is only exercised in elections to the European Parliament and national governments that have some power within the EU system.

There are, however, many other mechanisms through which citizens can exercise democracy, both formal (petitions as an example) and informal (activism and approaching representatives). However, the methods of legislative production are very composite, and the average citizen is very unfamiliar with how the system works. Therefore, he/she does not i) usually know what he/she is voting on and ii) how he/she can have an efficient action in the informal field.

3.2. The EU as a structure distant from its citizens

Whereas law that comes from a traditional statutory structure is usually discussed and formalised by political actors much closer to the population, EU law is discussed and formalised far from them. EU law originates from a place i) physically distant from the citizens, and, more importantly, ii) distant from a democratic perspective, as it comes from a system not understood by the people.

This physical distance has glaring implications. Firstly, it is not as fully covered by the media, as distance is an extra barrier for both the small and large media reporter. Furthermore, this distance makes it harder to use some of the more traditional informal forms of democracy, such as protest. It is extremely expensive for citizens, especially from the most peripheral states, to go to Brussels, where their voices would be more easily heard.

3.3. EU law and social norms: a law insensitive to regional variations?

EU legislation is produced in the heart of ‘Western Europe’, with the most relevant structures centred around those who were the first members. In the European Parliament, the countries with the largest populations hold a very high number of seats.[5]   The countries with the strongest economies, which also coincide with the aforementioned States, hold enormous soft power within the European space. As such, EU legislation, which is very focused on “European values” as the Treaties state, is too focused on ideas that are more aligned historically with Western Europe. Consequently, we see an EU policy that regularly disregards cultural differences and needs and produces legislation through the lens of ‘Western Europe’. [6]

4. Concluding remarks

In the light of all the above, we must conclude that the EU may be having some difficulties in following its ideals. Proclaiming itself as having an “attachment to the principles of democracy”, it is encountering some issues in making it come truly alive. In fact, there are many democratic mechanisms within the functioning of the EU system and law, and this is one of the pillars of the EU. However, this democracy tends to happen sometimes more in the de jure than in the de facto. We witness citizens completely unaware of what is slowly becoming their most important source of legislation. Today, citizens are generally unable to act because they are unaware of both the issues and the functioning of the system. As such, it is like a cardiovascular system with fake blood: the system is working but is not fulfilling its objectives.

In order to protect the ideals of the EU and the trust of its citizens, it is important that the EU tries to address the above issues as soon as possible. In particular, the European Parliament elections are always a good opportunity to open a debate and bring the EU closer to its citizens in the new political cycle that starts in 2024. These debates can also have positive effects on other issues such as the ‘centralisation’ of the EU and the lack of sensitivity to regional variations and needs. It is this idea of horizontal integration (the Europe of European women and men, in the words of the Portuguese President) that makes us more free, more fair, more democratic, and more fulfilled (each and everyone together) than if we lived separately, apart, and alone.

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[1] RTP, “Discurso em Estrasburgo. Marcelo avisa que “Europa não pode perder tempo”.” Accessed June 2, 2023, https://www.rtp.pt/noticias/mundo/discurso-em-estrasburgo-marcelo-avisa-que-europa-nao-pode-perder-tempo_n1485324.

[2] Rachel I McDonald and Christian S Crandall, “Social norms and social influence.” Current Opinion in Behavioral Sciences 3 (June 2015): 147–51. Available at: https://doi.org/10.1016/j.cobeha.2015.04.006.

[3] Kaushik Basu, “Social norms and the law”, in The New Palgrave Dictionary of Economics and the Law, ed. Peter Newman (Palgrave Macmillan, 1998). Available at SSRN: https://ssrn.com/abstract=42840  or http://dx.doi.org/10.2139/ssrn.42840. 

[4] Eric Posner, Law and social norms (Cambridge: Harvard University Press, 2000).

[5] Germany holds 96 of the 705 seats in the European Parliament, or 13.6% of the available seats. France has 79 seats. See, European Parliament, “Home | MEPs | European Parliament.” Accessed January 28, 2023, https://www.europarl.europa.eu/meps/en/home.

[6] One example we particularly appreciate is the case of Croatia with rakija. Rakija is a spirituous beverage deeply rooted in Croatian culture, being part not only of its gastronomy but also of its customs and habits. Croatia’s integration into the EU has forced the Balkan country to change its legislation on home-made rakija production. See Melanija Belaj, “Tradition vs. bureaucracy: on producing homemade rakija in EU (Case of Croatia).” SIEF2015 12th Congress: Zagreb, Croatia. 21-25 June 2015, 2015. Available at: https://nomadit.co.uk/conference/sief2015/paper/24820.

Picture credits: by Element5 Digital on Pexels.com.