04 July 2022

Federal Trust: EU Court abandons Westphalian system

The verdicts of the EU Court of Justice (ECJ) in the cases of Poland and Hungary concerning the rule of law, which have been delivered on 16 February, are not only consequential for the functioning of the EU but also shed new light on the relation between the UK and the EU.[1]

 While the present Brexiteer government of the UK seems to devote an undue amount of its time to creating conflicts with the EU as if to vindicate its campaign for leaving the Union, the ECJ has accentuated an undercurrent in the ideological debate between the United Kingdom and the EU.

The principle of non-interference

In their request for annulment of the so-called conditionality mechanism the EU member states Poland and Hungary accused the EU of interference in their internal affairs. The purpose of the conditionality mechanism, which the EU introduced in its plan to recover from the corona-crisis, is to link the grant of subsidies to compliance with the rule of law by the recipient states.[2] The complaining states sung a tune that sounded all too familiar to British ears as they invoked the principle of non-interference. This argument is based on the Westphalian system of International Relations, which forms the globally recognised code of conduct for the relations between states and which underlies the functioning of the Organisation of the United Nations.[3] In their campaign for withdrawal from the European Union the proponents of Brexit invariably denounced the EU as an undemocratic organisation and accused the Union of interference in the internal affairs of the UK.

Either federation or confederation

Before, during and after British EU membership the debate about the end goal of the European Communities & Union was entirely dominated by the Westphalian paradigm. The essence of the template is that states must enjoy absolute sovereignty. Sovereignty has to be one and indivisible and may neither be compromised or undermined. In the traditional approach, violation of this principle constitutes a reason for war (casus belli). In consequence of the predominance of the Westphalian template, politicians and scholars held that the EC/EU had either to become a federal democratic State or establish itself as a union of sovereign democratic states. The two rivalling schools only agreed that other options were not available (tertium non datur).

Beyond Westphalia

In hindsight, the debate about the end goal and the identity of the EU appears to have been driven more by ideological than by legal considerations. As courts are obliged to do, the ECJ has studied the demand of Poland and Hungary on the basis of the text of the EU-Treaties. The Court dismisses the claim concerning unwarranted interference by the EU in the internal affairs of the complaining countries by establishing that the member states concerned have voluntarily acceded to the EU and that they have subscribed to constitutional principles contained in article 2 TEU. These values contain the core of the legal traditions of the member states. They have not been dictated by anonymous Brussels’ bureaucrats, but they have been formulated and agreed upon by the member states themselves. The essence of constitutional democracies is that governments have to serve their citizens and that they are bound by the rule of law. For that reason, the nine member states of the then Communities described themselves in 1973 after the accession of Denmark, Ireland and the UK as a ‘Union of democratic States’.[4] This declaration formed the starting point of the democratisation of the emerging polity itself. Despite the claim of the Westphalian system that constitutional principles like democracy and the rule of law can only thrive within the borders of a sovereign state, the member states of the EC/EU wanted their organisation of democratic states to function on a democratic footing too. The present author has analysed the stages along which this process has taken place, in an earlier essay on this website.[5] As the member states of the EU have voluntarily acceded to the Union and have mandated the EU to guarantee the respect for their common values, these member states can no longer invoke the principles of the Westphalian system in their mutual relations. The EU is no longer a mere union of states, but has evolved from an international organisation to a European democracy.

The UK and the EU

There is a sad irony in the conclusion that the quality of the British democracy has not improved subsequent to or, indeed, as a result of Brexit. After all, one of the main arguments of the Leave Campaign consisted of the allegation that the EU is destined to be an undemocratic organisation. The ECJ has proven this assertion false. Instead, the conclusion to be drawn from the conditionality mechanism verdicts is that the Court regards the EU as ‘a Union of democratic states, which also constitutes a democracy of its own’. This conclusion may come as an incentive for British citizens and politicians who are campaigning for the UK to return to the EU. They can refute the objection that the European Union is destined to be undemocratic, by demonstrating that the EU has outgrown the Westphalian paradigm and that the Union thrives as a European democracy. It is not looking back to a global past but preparing for a common future!

 

Notes

[1] Cases Poland and Hungary against Parliament and Council, ECLI:EU:C:2022:97 and ECLI:EU:C:2022:98

[2] Known as the Resilience and Recovery Facility, https://ec.europa.eu/info/business-economy-euro/recovery-coronavirus/recovery-and-resilience-facility_en

[3] R. Cooper, The Breaking of Nations, Order and chaos in the twenty-first century, London 2003, gives a useful summary of the Westphalian system

[4] Declaration on European Identity, Copenhagen 1973, EC-Bulletin 1973-12

[5] J. Hoeksma, Replacing the Westphalian system, Federal Trust Essay, October 2020,  https://fedtrust.co.uk/replacing-the-westphalian-system/

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