Europe needs a new narrative, a very simple and easy narrative. Just as a company has to reconsider its strategy from time to time, the same applies to Europe. Europe is neither a deus ex machina nor a scapegoat, but can make a real difference to European citizens in their daily life. Th ose citizens are the real stakeholders in the European story. A new impetus is only possible if Europe focuses on those areas where it can really make a difference for its citizens. Forget the cucumbers, the condoms and the tampons. Be pragmatic. Focus on the large, important works. We have called them the labours of Hercules.

Europe has proven that it can do so. The internal market and the euro have become feats that many envy. And yes, the process is slow. Rome was not built in a day. And yes, there have been construction errors, such as the decoupling of monetary and economic policy. But the European project has proven to be solid and able to navigate through turbulent waters and crises. Moreover, crises often appeared to act as an accelerator of the European integration process.

Crises like COVID-19 or the Ukraine conflict can also have this effect. The next-generation project is an unprecedented injection into the real economy. Financing through European loans would never have been possible without COVID-19, just like open strategic autonomy and the energy transition would never have gone so fast without the Ukraine crisis. Channelling that confidence, let us now commemorate Europe, not for its 65th anniversary, but by rethinking the role of Europe for the next decade based on the philosophy that Europe should be big in big things, small in small things. The twelve labours of Hercules can serve as a guideline here.

Let us be proud of our Europe instead of torpedoing it again and again. We are global players in Earth observation. We realized the monetary union. We have 450 million consumers with considerable purchasing power. We should not think of ourselves as the continent where the sun sets, but impose our legitimate wishes on other superpowers who are only interested in our market, but do not want to respect the environmental and social values that go with it.

Values, those are what matters. In the coming decades, values will be central. They will determine which economies have a future.

This is an ambitious book. The premise is that there is a need to modernise the appeal of Europe by developing a new narrative that (re)connects Europe’s citizens – its stakeholders – to the idea of Europe and specifically one that engages Generation Z. Rudy Aernoudt is eminently qualified to offer a new narrative. He has worked almost all of his professional career in European Union Institutions – in European advisory bodies, the European Council and the European Commission. His roles have included cabinet director at European level, Special Counsellor to the European Council President and chief economist. He has also held positions as Head of Cabinet in Belgium, at federal, Flemish and Walloon level. He has significant policy achievements. He designed and implemented the Joint European Ventures (JEV) programme to stimulate European companies to set up joint ventures with companies from other European countries. He co-founded the European Business Angel Network (EBAN) and he conceived the ESCALAR (European Scale-up Action for Risk Capital) that will double the capacity of the venture capital funds to support companies at their scale-up stage. Our paths crossed in the late 1990s when EBAN was being conceived and established, and we have remained in contact, albeit sporadically, since then.

Aernoudt starts by tracking the deepening integration of Europe. The European Union was created in 1957 when the Treaty of Rome was signed, initially as an economic union comprising six Member States, expanding to 28 members (following Brexit it now has 27 members), with several states seeking membership. Over this time, Europe has evolved from its origins as an economic union. The process of economic integration has deepened, culminating in the Single Market which, in turn, paved the way for the European Monetary Union, with the Treaty of Lisbon creating a coherent set of decision-making procedures. This has resulted in the acquisition of increasingly new competences moving into non-economic fields as laws have been translated into national legislation. Aernoudt highlights the increasingly complex interplay between the European Council and the European Parliament and the exponential growth of regulations and directives, much of which relates to the internal market, complicating the daily lives of ordinary citizens.

Founded in its current form in 1957, Europe has reached retirement age. However, it does not appear that Europe can rest on its laurels. In referendums, citizens systematically speak out against it. Populist movements in France and the Netherlands, among others, oppose Europe and are calling for the reintroduction of their national currencies. For the first time in the history of the European Union, a member has even chosen to leave the club. And during the post-Brexit negotiations, the COVID-19 crisis hit, which, like any crisis, gave rise to nationalist reflexes. How did it come to this? How can such a beautiful project – at least on paper – suffer such a significant blow? And what is next?

Europe is a phoenix in this regard. The deeper the crisis, the more is possible. The institutional crisis led to the single market project, the banking crisis led to the banking union, the COVID-19 crisis made possible what had never happened before – the issuance of European bonds – and the Ukraine crisis accelerated the energy transition. It is as if Europe can only arise and evolve as a result of crises.

Why write another book about Europe? A new book on Europe is published almost every week, for or against Europe. Everyone has an opinion about how to proceed and European experts are mushrooming. Most of these experts only know Europe from other books and write a new book about it that is often a mosaic of existing texts. Intertextuality, as the French philosopher Julia Kristeva calls it. We could call it ‘cut and paste’ culture today.

I therefore felt it was my responsibility to write about Europe based on my professional experience within the European institutions. A vision of someone who has experienced and lived Europe, as a European in daily life, but also from within, from the Brussels Eurocrat bubble. This explains the title of this book: Towards a New European Impetus Post-Brexit: A View Behind the Scenes.

My triple position as head of cabinet in Belgium, at federal, Flemish and Walloon level, was rather an interlude in my life. After all, I have worked almost my entire professional life for Europe. I have worked in the European advisory bodies, the European Council and the European Commission and attended the sessions of the European Parliament in Strasbourg countless times.

Books about Europe appear every week, but few are written by someone who is currently experiencing the European institutions from within. Rudy was my chief of staff during my presidency of the European Economic and Social Committee. He was Special Adviser to the Presidency of the European Council and held various positions at the European Commission. And in all of these functions, he acted more as an entrepreneur than as a civil servant.

Moreover, Rudy also knows Europe from the point of view of the Member States, as well as from that of the regions. He was in fact chief of staff in his own country, Belgium, at both regional and federal level. He was thus private secretary on the three levels, a unique achievement worthy of an entry in the Guinness Book of Records.

These multiple experiences are reflected in his book. We feel his passion for Europe. But also, we feel the desire for Europe to move forward. Instead of complaining about the crises that Europe is going through and has been through, the author argues that Europe is able to overcome these crises, and more importantly, to take advantage of them to progress and develop. He therefore calls for the COVID crisis not to be wasted, but to be used as a lever for the further integration of Europe.

However, the author is not a blind ‘Euro-lover’ who would like everything to be done at European level. He points out the danger, as also shown by Max Weber, that the formalism of bureaucracy can lead to cumbersome and rigid administrative procedures, even to a monopolization of power in favour of the bureaucrats’ interests. Bureaucracy is indeed a system that provokes resistance to change, a system that revolves around itself and loses its link with the outside world. The bubble of the Schuman roundabout, as the author calls it, is one of the main issues explaining the disassociation with the European citizen.

But this bureaucratic mechanism failed to extinguish the flame of the European dream for the author, a passion that keeps him looking at solutions instead of problems. This is what I admire most about him: a pragmatic spirit coupled with an unrelenting optimism. And since the author uses anecdotes in his book, allow me to do the same.

Based on that pragmatic approach, I have selected twelve domains, twelve labours of Hercules as illustrated on the metopes of the Temple of Zeus at Olympia. Both Hercules and Europa are part of the Greek mythology, from the cradle of European civilization, and are even interconnected. We know that Zeus disguised himself as a white bull to seduce Europa. That same Zeus used the same technique, disguising himself, this time as Amphitryon, the spouse of Alcmene, and conceiving with her a child, Hercules. The mother was considered the tallest, most beautiful woman, and wise with it. The child inherited from his natural father the combination of enormous strength and a certain leanness and was thus very powerful. By analogy, the power of Europe is based on the synergy and power of the constituent Member States and pragmatism should hence allow each of the Member States to be better off together.

The reader should see these twelve priorities as an illustration of how a pragmatic approach can work in practice. Other domains can be added and domains can be omitted, but always based on the premise that actions on the European level should make a difference and that citizens should be able to feel this in everyday life. And just as no metopes stands alone, these twelve policy areas must also become holistic, rather than a menu to select from.

My aim is to briefly summarize each of the labours and still – it is becoming more difficult now – avoid Eurocrat jargon. I will discuss for each labour the potential impact on European citizens and what it is all about. Let us not forget Jean Monnet’s earlier thought that Europe is not for the Member States, but for the citizens. The twelve labours, or priorities, are:

• 1. Erasmus4All or the happy few?

• 2. Environmental and climate policy: a sense of urgency

• 3. Europe: a home for industry?

The question is: how should we proceed now? Can Europe just muddle on now that the momentum has ebbed? Or should we just stop, as has happened with a lot of past integration efforts throughout the world? Or should we breathe new life into Europe and if so, how? Let us take a closer look at four possible scenarios.

1. EURO-MADNESS

Europe is the future. Member States are the past. This is how we could summarize this scenario. All tasks should be transferred to the supranational level as much as possible. European taxes, direct European elections, a European army – these are just a few of the many possibilities.

Guy Verhofstadt, former leader of the ALDE (liberals) group in the European Parliament, is an adoptee of this philosophy. He advocates a United States of Europe with a European diplomatic corps, a European army and a genuine European government. Valéry Giscardd’ Estaing and Helmut Schmidt also have far-reaching proposals that make Europe a fully integrated monetary, budgetary and fiscal zone. This philosophy is based on the idea that what is done at European level is done better.

The gap with the citizens makes such an approach unfeasible; that is not realpolitik. Citizens already believe that everything is decided in Brussels. Entrusting yet more powers to the Schuman bubble would only exacerbate those problems and lead to further mistrust in the European construction.

The Euro-madness approach is not only unfeasible, but also undesirable. After all, from the earlier points it may be concluded that Europe is not a nirvana. It does not make sense to want to do everything on a supranational level.

Besides, the European construction is a gradual process, not one that aims to bring everything up to the European level, gradually eroding the powers at national and regional level. It only makes sense to bring a certain domain wholly or partly to the European level if there is real added value in doing so. Nor was it ever the intention of the fathers of Europe to create a kind of Moscow in Brussels.

Incidentally, the concept of ‘the United States of’ does not seem attractive to me as a model for Europe.

INTRODUCTION

A no-fault comprehensive compensation fund is a significant part of a jurisdiction’s legal framework. In the four jurisdictions that are studied here, the fund framework affects the way that individuals access justice for specific types of injury-related harms. Most specifically, it restricts access to the courts and an individual’s choice about whether to pursue potential defendants.

However there has been little or no analysis of how no-fault comprehensive compensation funds intersect with human rights and access to justice issues. There is a current knowledge gap about the intersection between human rights and no-fault compensation funds generally. This chapter, however, focuses on the impact of comprehensive no-fault funds on human rights and access to justice issues, as a discrete sub-field. Large funds pose slightly different issues in the realm of human rights, compared with their smaller cousins. This is because they create a near or total restriction on the ability of a comprehensive category of claimants to access court-based remedies or settlements. As a trade-off for this, they offer a statutory entitlement to compensation for certain classes of injury, and a fast and streamlined claims process. However, a question that has not fully been analysed by research or practice remains: is this balancing act ultimately a fundamental problem from a human rights perspective, or an acceptable alternative approach?

The four big funds studied in this book are located in jurisdictions that do not all have a fundamental human rights framework equivalent to the European Convention on Human Rights (ECHR) or the United States Constitution. Only Canada’s human rights frameworks are connected to its written constitution and/or have a fundamental nature. This leads to a natural or default presumption that a fundamental human rights framework may be incompatible with such a fund, or that the fund hinders access to justice in an unacceptable way. However, there has been no scholarly legal analysis of whether these presumptions or suspicions would be correct.

INTRODUCTION

This book has contributed to the comparative law landscape of compensation funds in general, by identifying the key characteristics and principles of the world’s most comprehensive no-fault compensation funds. The field of no-fault compensation has been broad and ill-defined until now, despite many differing shapes of alternative liability schemes existing for decades in multiple jurisdictions. It is only in this century that legal scholars have attempted to more precisely classify these liability frameworks, better understand their function and nature, and apply scholarly rigour to their unruly growth. Very big no-fault compensation funds, which are publicly managed and publicly underwritten, are the purest and most expansive forms of no-fault or no-blame redress structures.

The four schemes analysed in this book are the largest and most expansive of their type, covering around 21.6 million people in total, with automatic entitlement to compensation for certain types of injuries, but severely restricting access to ordinary court remedies. This book is the first scholarly analysis of this category of comprehensive no-fault compensation funds. The key learnings of this book are relevant to the existing funds themselves, new funds that are coming into existence, and smaller less comprehensive funds which can define themselves in similarity or contrast with the largest exemplars of no-fault.

Three research questions were posed in the research that underpinned this text. The choice of these research questions was motivated by an observation of knowledge gaps in the current scope and practice of big no-fault compensation funds. The research questions were also motivated by the goal of evolving the understanding of the law surrounding big compensation funds a step further from Peter Cane’s bipolar abolitionist and incrementalist camps of tort law reform. The definition of a no-fault comprehensive compensation fund can be summarised as follows. It is a fund that compensates individuals for a statutorily defined comprehensive range of harms, on a no-fault basis (i.e. showing liability is not necessary to access compensation). The scheme is administered by a single public or quasi-public centralised body.

INTRODUCTION

This chapter considers the four existing no-fault comprehensive compensation funds, and analyses their purpose, scope and effect. Firstly, each jurisdiction is described and analysed using a pluralist comparative law approach (considering functional, structural, and in-context elements). After this, the selected funds are compared and analysed by their function – how they deal with the same kinds of loss incidents (traffic injury, medical/pharmaceutical, employment injury and everyday risks of life). Next, the learnings from the no-fault comprehensive approach are compared to functionally relevant French, Belgian and Nordic no-fault compensation funds. The European funds have functional and purposive relevance to our four no-fault comprehensive compensation funds. They are not as comprehensive as the key New Zealand, Australian and Canadian funds, but they represent a significant departure from standard compensation and liability law approaches in those jurisdictions. The European funds have also been compared in the past with one another. Finally, conclusions are drawn about this comparative law analysis of existing systems. This partially answers the first and third key questions, and forms the departure point for further comparative law analyses in the subsequent chapters on issues of administration, human rights, access to justice and possible future applications.

NEW ZEALAND’S ACCIDENT COMPENSATION CORPORATION (ACC)

When jurists consider the issue of tort law losses, social insurance protections and insurance coverage in the New Zealand jurisdiction, the impact of one compensation fund is always addressed before any other consideration. That fund is the universal single-window statutory scheme for personal injury compensation, administered by the Accident Compensation Corporation (hereafter ‘the ACC Scheme’). Under this scheme, individuals forego the right to sue for compensatory damages for injury under the common law, in exchange for this comprehensive cover and compensation. The fund also has a mirror injury prevention and rehabilitation focus, which makes the purpose and scope of the scheme wider than financial compensation.

The ACC Scheme is something of a legal ‘unicorn’ because, despite being in effect for the best part of 50 years, it has not been wholly replicated (i.e. its multifunction coverage) in any other major common law or civil law jurisdiction.

INTRODUCTION

This book has so far crystallised and analysed, for the first time, a definition of the largest type of no-fault comprehensive compensation funds that are publicly administered. It has also developed a suitable comparative law methodology for analysing such funds. There was an initial consideration of the core problems associated with the classification of compensation funds generally. This is because there is a lack of agreed definition within existing literature and practice about no-fault compensation funds generally. There has also been no significant scholarly analysis of the largest types of no-fault compensation funds in particular. In Chapters 3 and 4 there was a practically focused crystallisation of the defining and key features of very large and mature no-fault compensation funds, with appropriate functional and structural comparisons. There was also a novel first principles consideration of the intersections between very large no-fault compensation funds and human rights, with a specific focus on access to justice and dispute resolution issues. This crystallisation and analysis approach has added to the existing literature by providing a clear picture, for the first time, of the key legal landmarks of comprehensive no-fault compensation funds, as a subset of the wider no-fault or no-blame compensation funds.

However, in order to be most relevant and useful, this research also needs to look toward the future development of large no-fault compensation funds. There is potential for no-fault frameworks, as a non-liability compensation solution, to be used to address contemporary and future problems. These problems range from issues as diverse as new jurisdictions adopting the comprehensive no-fault model for transport injury, artificial intelligence damages applications, to the implementation of national and global vaccine injury compensation funds to underpin the COVID-19 global vaccination campaign. The analysis undertaken in this book provides more definitional clarity and guidance about the positive and negative elements of these very big schemes, which enables more informed legislative and policy choices to be made about the future of our four existing funds and the development of new funds.

INTRODUCTION

This chapter analyses some of the core problems afflicting the classification and analysis of compensation funds generally, and no-fault comprehensive compensation funds specifically. The inconsistent legal philosophical and technical definitions and usage of compensation funds across different jurisdictions illustrate a number of key problems that require proper framing and analysis.

THE DISTINCTION BETWEEN SOCIAL SECURITY SCHEMES AND NO-FAULT COMPREHENSIVE COMPENSATION FUNDS

The design of social security systems globally varies widely depending upon legal tradition and other political and economic influences. European systems in states like Belgium, the Netherlands and France generally have a ‘Bismarck-ian’ contributions-based social insurance structure. The United Kingdom, New Zealand and Scandinavian countries generally follow a ‘demogrant’ system, which guarantees universal entitlement to social security benefits if citizenship or residency requirements are met. Other countries, including Canada, Australia and the United States take a blended approach involving social insurance, universal social security and private insurance/out-of-pocket principles depending on the particular social security purpose.

There are differing theories from legal scholars about the social security overlap with compensation funds generally and no-fault comprehensive compensation funds in particular. A no-fault comprehensive compensation fund has been described by Cane and Goudkamp as a ‘social welfare solution’ to the problem of compensation. Some tort law scholars have classified no-fault comprehensive compensation funds as a complete social insurance system that follows from the logical extension of loss distribution to all accidental losses.

Knetsch classified compensation funds generally as being distinct from social security because they provide compensation without means-testing, evidence of prior contributions or affiliation and operate in a narrow field related to the circumstances of damage. Macleod and Hodges have most recently described an international trend towards compensating personal injury on a no-fault basis as a shift to compensating on a ‘wider social basis’ that may also (depending on the jurisdiction) be infused with concepts of social solidarity.