Since its foundation in the middle of the previous century, the EU and its predecessors have been preoccupied with the question whether they should become a federal state or a confederal union of states.
In the end, the
participating states agreed to disagree by presenting the EU to the
citizens as an organisation sui generis. While this compromise suited
diplomats, it alienated the citizens from the Union. It even opened the
way for Eurosceptic politicians such a David Cameron to portray the EU
in his Bloomsberg address of January 2013 as an “undemocratic
organisation.” Anti-Europeans were encouraged to denounce the EU as a
modern Roman Empire or even as a ‘Fourth Reich’!
Towards the close
of 2020 Great Britain is facing the double tragedy of Brexit and
COVID-19. But the EU has lessons to learn from this traumatic period
too. It should notably adapt its self-perception to contemporary
realities. The EU is no longer some incomprehensible hybrid between
state and international organisation. Instead, the 2007 Lisbon Treaty
construes the EU as a democracy without turning the Union into a State.
The present essay aims to lay the philosophical foundations for the
required change of attitude. Its author introduces the theory of
democratic integration as an explanatory model for the evolution of the
EU from a Union of democratic States to a European democracy. In
consequence, the EU may present itself at the global stage as the
first-ever ‘democratic regional organisation’. In doing so, it may prove
the British anti-European factions wrong and contribute in due course
to a dignified return of the UK to the EU.
From
the outset, lawyers have underlined the revolutionary character of the
process of European integration. In the first edition of the renowned
Introduction to the Law of the European Communities, published in 1973,
Kapteyn qualified the construction of the European Coal and Steel
Community as a ‘revolutionary breakthrough from the classic pattern of
international organization’.[1]
Many legal scholars have subsequently participated in the ‘Integration
through Law (ITL) project, but their efforts and conclusions have had
little resonance with the wider field of European Integration Theory.[2]
Political theorists, studying European integration, tend to operate
with more political concepts such as neo-functionalism, liberal
intergovernmentalism and postfunctionalism. Overlooking legal
contributions, they prefer to present these three schools of thought as
the ‘Grand Theories of European Integration’.[3]
This lack of interdisciplinary dialogue is especially regrettable since
political theorists have been unable so far to develop an own and
distinct political philosophy of the European Union.[4]
In consequence, this ‘academic provincialism’ has led to an undue
prolongation of the identity crisis of the EU, as epitomised by the
notorious deadlock in the debate about the nature of the Union.
The
aim of the present essay is to demonstrate that the perennial stalemate
in the debate about the nature of the EU and the Future of Europe can
be overcome through a democratic approach to the process of European
integration. It will be established that the much-discussed democratic
deficit, which used to characterise the EU in its early decades, has
been addressed from within. The theory of democratic integration, to be
summarised in this essay, postulates that, if two or more democratic
states agree to share the exercise of sovereignty in a number of fields
with the view to attain common goals, the organisation they establish
for this purpose should be democratic too. The new theory not only
underpins the conclusion that the EU in its present stage constitutes a
‘democratic Union of democratic States’, but also offers an explanatory
model for its evolution from an association of democratic states to a
European democracy. Mirroring this conclusion from the perspective of
international relations it will be submitted that the EU has emerged as
the first democratic regional organisation in the world.
The reception of citizenship
Hardly
ever in the history of international law has a new concept been
introduced with so much ignorance and opportunism as EU citizenship. The
Heads of Government and State arrived at the summit of Maastricht in
December 1991 with great expectations. The European Parliament had
already drafted a federal blueprint for a European Union in 1984, while
France and Germany had agreed to replace the established formula ‘ever
closer union’ with the term ‘federal vocation’.[5]
On the assumption that the President of the European Commission Jacques
Delors aimed to complete the internal market, the Spanish government
floated the idea to improve the status of their nationals in other
member states by introducing a citizenship of the Union.[6]
As the proposal was endorsed without much discussion, one of the
purposes of the newly founded Union was -in the words of article B TEU-
to ‘strengthen the position of the rights and interests of the nationals
of its Member States through the introduction of a citizenship of the
Union’. As from the entry into force of the Maastricht Treaty the
citizens of the Member States were to be citizens of the Union too.
In
line with the Internal Market-driven preparation of the introduction of
the new status, however, the European Council did not attach any new
rights or obligations to the citizenship of the Union. The citizens of
the Union continued to enjoy the rights they had obtained in their
capacity of subjects of the Member States, notably the right to free
movement and settlement, but the Maastricht Treaty failed to contain any
concrete measures to improve their position. Moreover, no propositions
were made to connect those citizens of the member states, who preferred
to remain in their own country with the newly established Union.
Remarkable as it may seem from the present perspective, the citizens of
the member states still had to cross an internal border in to ‘validate’
their status as EU-citizen.[7]
If
there had been any hope in academic circles that the Heads of State and
Government would have seized the momentous occasion of the Maastricht
Treaty to address the democratic deficit of the European project, these
expectations were dashed instantly after publication. The EU was
described by one author as a ‘Union of bits and pieces’,[8] while another concluded that the new status of EU-citizen was a ‘pie in the sky’.[9]
The harshest criticism was still to come. At the height of the
financial crisis, which was to hit the EU after the entry into force of
the 2007 Lisbon Treaty, a leading commentator even concluded that
‘democracy is not in the legal DNA of the EU’.[10]
His views were reflected by the German Constitutional Court, which
concluded in its Maastricht-Urteil of 1993 that EU citizenship was not a
‘real’ status and in its Lissabon-Urteil of 2009 that the EU-democracy
was not a ‘real’ democracy.[11]
As these academic doubts and judicial judgements were corroborated by
the prevailing paradigm in international law, known as the Westphalian
system of international relations, the old continent seemed to be
condemned to the Faustian dilemma of either having international
cooperation and economic prosperity or enjoying sovereignty and
democracy.[12]
In the prevailing perception international organisations were presumed
to be incompatible with the concept of democracy. Democracy could only
thrive within the boundaries of a sovereign state, whereas the relations
between states were governed by the rules of diplomacy. In consequence,
the EU could never be democratic and would always suffer from an
intrinsic democratic deficit. Presented with this dogmatic dilemma the
citizens of the United Kingdom decided in the 2016 referendum about the
continuation of British membership of the EU to leave.[13]
Absolute sovereignty and beyond
The hallmark of the Westphalian system of International Relations lies in its concept of absolute sovereignty.[14] Sovereignty (summa potestas) must be one and indivisible.[15]
It cannot be compromised. The emphasis on absolute sovereignty of
States can be understood as a reaction to the feudal system of the
Middle Ages, in which kings had vassals and in which Emperors and Popes
competed for worldly power. As from the 16th century Europe
became divided in an ever-fluctuating number of sovereign states, which
were guided in their relations with each other by the Westphalian
system. States had to treat each other as equals, they had to refrain
from interfering in the internal affairs of other states and they were
only allowed to declare war on another state if there was a valid casus belli.
Although
the Westphalian system gradually became the global norm for the
relations between states, the old continent of Europe proved to be too
small for the system to remain the guiding principle in international
relations. After two devastating world wars the citizens and politicians
of the ravaged countries wanted ‘no more war’, even if that meant that
they would have to give up or share parts of their national sovereignty.[16]
In fact, the European Coal and Steel Community, which was founded in
1951 by six Western-European countries, was based on the premise that it
would be materially impossible for states to declare war on each other,
if they shared the exercise of sovereignty over the materials with
which these wars were conducted.[17] In practice, sharing sovereignty in a limited number of fields proved to be a reasonable price for the prevention of war.
The
European countries proceeded very cautiously on their way to a more
mature system of mutual relations. Later generations may judge that they
took far too long. It seems at least stunning that – 70 years after the
start of their experiment with shared sovereignty – they are still
measuring the results of their exercise by the norms of the system which
they have abandoned. To put it concretely: the political and academic
debate about the nature of the EU is still dominated by the Westphalian
opposition between states and international organisations.[18]
The reason for this outdated practice is probably that practitioners
and researchers seem to be so accustomed to examining political
relations from the Westphalian viewpoint of States, that they are
mentally unable to swap their paradigm for another one. However, as the
EU not only exists of states, but also of citizens, it should be
endeavoured to substitute the civic perspective of democracy and the
rule of law in the study of the EU for the Westphalian paradigm of
diplomats and states.[19]
A New Narrative for the EU
Paradigm
shifts tend to shed fresh light on accepted truths and persistent
stalemates. In the case of the EU the change of paradigm renders the
traditional opposition between state and international organisation
obsolete. The axiom that it is impossible for international
organisations to function on a democratic footing is being replaced with
the premise that, if two or more democratic states agree to share the
exercise of sovereignty in a number of fields in order to attain common
goals, their organisation will have to be democratic too. Substituting
the democratic perspective for the diplomatic paradigm opens the way for
identifying the emancipation of the citizen as a new dynamic in the
process of European integration. In line with the practice of the
European Council to mark each treaty as a new stage in the process of
European integration, the evolution of the European polity from a Union
of democratic States to a European democracy may be described in ten
stages.
1) Sharing Sovereignty The new narrative,
which stems from the paradigm change, starts with the historic decision
of six Western-European countries to prevent the renewed outbreak of
war by sharing sovereignty over the materials required for the very
conduct of war. The construction of the European Coal and Steel
Community, founded in 1951, formed a ‘revolutionary breakthrough of the
existing patterns of international organisation’.[20]
2) An autonomous legal order
Encouraged by the success of their experiment the six member states
decided to broaden the practice of pooling sovereignty to the entire
economy. The European Economic Communities, which was created by the
1957 Treaty of Rome, aimed at establishing an internal market among the
participating states. In its landmark verdict in the case Van Gend en
Loos of 1963 the EC Court of Justice found that the Community had an
autonomous legal order.[21]
A year later the Court added that the law of the Communities has direct
effect and, in case of conflict, precedes national laws and
regulations.[22]
3) A Union of democratic States
In the wake of the first enlargement in 1973 with three new members the
European Council decided to identify the Communities as a ‘Union of
democratic States’.[23]
While unions of states are a regular phenomenon in international law,
unions of democratic states are rare, especially when they share the
exercise of sovereignty in order to attain the goals they have in
common. In view of the nature of the democratic principle it may be
presumed that, if two or more democratic countries agree to share the
exercise of sovereignty in a number of fields in order to attain common
goals, the organisation they establish for this purpose should be
democratic too.
4) A directly elected Parliament
In line with this theoretical presumption the nine member states decided
three years later to increase the democratic legitimacy of their
Communities by holding direct elections for the European Parliament.
According to the 1976 Act concerning the election of the Members of the
European Parliament by direct universal suffrage the candidates were to
be chosen in each Member State by the electorate of that particular
State. The voter turnout in the 1979 EP-elections stood at almost 62 %.
5) Qualified Majority Voting
The functioning of regular unions of state is based on the principle
that no member state can be bound against its will. In other words, each
participating state has the right of veto. National vetoes, however,
are incompatible with the democratic decision making at the
supranational level. Seen from this perspective the decision of the
European Council to replace the national vetoes in a number of fields
with a system of deciding by qualified majorities was an important step
on the road towards a European democracy. The European Single Act,
signed by twelve member states, entered into force on 1 July 1987.
6) EU Citizenship
The stakeholders in the process of European integration did not have a
blueprint for the transition of their polity from a Union of democratic
States to a European democracy. In hindsight, it seems obvious to
suggest that citizenship is an indispensable condition for a democracy.
As demonstrated above, however, the purpose of the European Council on
introducing a citizenship of the Union was to complete the internal
market rather than to lay the foundations for a democracy at the level
of the Union. It was only after the initial Danish rejection of the
Maastricht Treaty that the European Council tacitly withdrew its
original motivation for the introduction of EU citizenship.[24]
7) Dual Democracy
The 1997 Amsterdam Treaty is the first treaty in the history of the EU
to contain the outline of the system of dual democracy, which has become
the hallmark of the European Union. The Amsterdam Treaty includes
democracy in the core values of the EU, presently enumerated in article 2
TEU. As it also introduced specific provisions to ensure durable
compliance by the member states to the values of the Union, notably with
respect to democracy and the rule of law, the Amsterdam Treaty allowed
for the description of the EU as a ‘Union of democratic States, which
also constitutes a democracy of its own’.
8) Fundamental Rights
The Charter of Fundamental Rights of the European Union, solemnly
proclaimed at the 2000 Summit of Nice, symbolises the emancipation of
the citizens in the framework of the Union. It has been hailed as the
‘Magna Charta’ of EU citizens, since it contains both the political and
the civil as well as the economic and social rights of the EU citizens.
After it had obtained legal status by virtue of the entry into force of
the Lisbon Treaty on 1 December 2009, EU citizenship was no longer a
‘pie in the sky’, but a full-grown status of citizens of an
international organisation. From then on, the citizens of the member
states could take pride in saying: Civis Europaeus Sum.[25]
9) The Lisbon Treaty
The 2007 Treaty of Lisbon is the first treaty in legal history to turn
an international organisation into a transnational democracy. At the
same time, it construes the EU as a democracy without turning the Union
into a state. Article 10 (1) TEU articulates that the functioning of the
Union shall be founded on representative democracy.[26]
Seen in this light, the Lisbon Treaty symbolises the emergence of the
EU as a new kind of entity in global politics, which can no longer be
understood and explained in terms of the Westphalian paradigm of
international relations. As the Lisbon Treaty puts beyond doubt that the
EU is neither a State nor an international organisation, the question
as to how the EU can be described in positive terms can no longer remain
unanswered.
10) An autonomous democracy The
innovations brought about by the Lisbon Treaty proved to be so intricate
that it took the EU Court of Justice more than a decade to come up with
proper interpretations. The case law of the ECJ is vital for the
understanding of the Lisbon Treaty both with respect to the status of EU
citizens and in relation to the system of governance of the EU.
The
ECJ started by turning EU citizenship into a real status. While
citizens had to cross a border under the old regime in order to validate
their rights in the framework of the EC/EU, the ECJ established in 2010
that ‘citizenship of the Union is intended to be the fundamental status
of nationals of the Member States’.[27]
It followed that ‘national measures that have the effect of depriving
citizens of the Union of the genuine enjoyment of the substance of the
rights conferred by virtue of their status as citizens of the Union’ are
in conflict with European law.[28]
The cross-border element had been removed so fundamentally that
nationals of a member state who had been convicted to imprisonment by
the judiciary of their country for breaking national laws, could
successfully invoke their rights as EU citizens.[29]
It
lasted more than a decade after the entry into force of the Lisbon
Treaty before the ECJ found itself in the position to articulate its
views on the system of governance contained in that treaty. In two
separate judgements, delivered on the same day, the Court recalled
‘that, as stated in article 10 (1), the functioning of the EU is to be
based on representative democracy, which gives expression to democracy
as a value. Democracy is, under article 2 TEU, one of the values on
which the EU is founded’. This fundamental provision forms the basis for
the conclusion that the EU has an autonomous democracy and that the
member states, while they are obliged to ensure free and fair elections
for the European Parliament, must refrain from actions, which have the
effect of undermining the EU democracy.[30]
From
the conceptual viewpoint, these verdicts of the ECJ underline that the
EU has evolved beyond the Westphalian system. While the latter holds
that it is impossible for organisations of states to be democratic, the
Court establishes that the EU has an autonomous democracy. So, some
seventy years after the start of the experiment with shared sovereignty a
new kind of democracy has emerged at the European level, which does no
longer comply with the demands and prescriptions of the Westphalian
system. As the present essay shows, a new set of rules is developing,
which may be described as the ‘European Model of Transnational
Governance’ and which is characterised by the exclusion of war, by the
practise of shared exercise of sovereignty, by an autonomous legal order
as well as by dual citizenship and a dual democratic order.[31]
Conclusion
Political
processes tend to take time, notably when they are not merely related
to individual states but to an entire continent. Clear ideas are
indispensable for bringing about the required foundational change. The
ECJ should therefore be credited for clarifying the nature of the EU.
Taking into account that the European Council described the then
Communities in 1973 as a Union of democratic States, the finding of the
ECJ that the European Union has an autonomous democracy, leads to the
conclusion that the EU is to be identified in its present stage as a democratic Union of democratic States. Formulated in terms of international relations, this conclusion implies that the EU may present itself at the global stage as a democratic regional organisation.
The
corona crisis from which the world is trying to recover, may serve to
demonstrate that the long-awaited solution of the conundrum concerning
the nature of the EU, does not mean that Europe’s problems have all been
solved. On the contrary, the challenges are formidable and the
construction of the new European house is far from complete. However,
the realisation that the EU has reached its constitutional destination
as a democratic Union of democratic States, may enable the participants
in the Conference on the Future of Europe to make the right diagnosis.
They do not have to limit themselves to the prevailing three ‘Grand
Theories of European Integration’ in their efforts to shore up their
recommendations with solid foundations. They may conclude instead that,
as Jürgen Habermas,[32] Kalypso Nicolaïdis[33] and Koen Lenaerts[34]
each have demonstrated in their own way, that the
constitutional-democratic approach is the path forward. Seen from this
perspective, the main challenges for the European Union at this juncture
are to strengthen its young and fragile democracy by all possible
means, including digital and participatory democracy, and to ensure
continued respect by its member states for the values of the Union,
notably for the values of democracy and the rule of law.[35]
As the quality of democratic governance at the level of the Union is
correlated to the democratic processes within each member state, it is
essential for European democracy to be protected and nurtured on both
levels. After all, European sovereignty is only feasible if it is
balanced and controlled by an effective European democracy.
Endnotes
[1]
P.J.G. Kapteyn and P. VerJoren van Themaat, Introduction to the law of
the European Communities, London 1973 (The first edition in Dutch
appeared as early as 1970). A congenial approach was presented in the
same period by P. Pescatore, Le droit de l’intégration, Leyden 1972
[2]
For a recent evaluation, see L. Azoulai, “Integration through law” and
us, International Journal of Constitutional Law, Vol 14, 2, April 2016
[3]
Journal of European Public Policy, Vol 26, 2019, Special Issue:
Re-engaging Grand Theory: European integration in the 21st Century.
[4]
R. Bellamy and J. Lacey, Political Theory and the European Union,
Routledge 2017. In a similar vein, S. Piattoni, The European Union,
Democratic Principles and Institutional Architectures in Times of
Crisis, Oxford 2015
[5]
C.W.A. Timmermans, The Genesis and Development of the European
Communities and the European Union, in: Kapteyn & VerLoren van
Themaat, The Law of the European Union and the European Communities, 4th edition, Alphen aan den Rijn 2008. Particularly useful as background for the legal history of European integration.
[6] J. Cloos, Le traité de Maastricht, Bruxelles 1994
[7] R. Fernhout, De Verenigde Staten van Europa zijn begonnen, maar voor wie?, Zwolle 1992
[8] D.M. Curtin, The constitutional structure of the Union: a Europe of bits and pieces, CMLR Vol 30, issue 1
[9]
H.U. Jessurun d’Oliveira, Union citizenship: Pie in the sky?, in: A.
Rosas and E. Antola (eds), A citizens’ Europe: in search of a new order,
London 1995
[10]
J. Weiler, Deciphering the Legal and Political DNA of European
Integration, in: J. Dixon and P. Eleftheriadis, Philosophical
Foundations of European Union Law, Oxford 2012
[11] J. Hoeksma, The Case BundesVerfassungsGericht versus EU Court of Justice, Oisterwijk 2020, www.wolfpublishers.eu/futureofeurope
[12] P. Magnette, What is the European Union?, London 2005
[13]
On rejoining the EU at a moment in time after Brexit, the UK will have
to replace the present nostalgic if not imperial mantra of ‘Global
Britain’ with a more contemporary slogan
[14] L.J. Brinkhorst, Europese Unie en nationale soevereiniteit, Leiden 2008
[15] P.H. Kooijmans, Internationaal publiekrecht in vogelvlucht, 10e druk, Deventer 2008
[16] J. Huizinga, Geschonden wereld, Haarlem 1945
[17] R. Schuman, Declaration of 9 May 1950, www.robert-schuman.eu/en/declaration-of-9-may-1950
[18] M. Burgess, Comparative Federalism, Theory and Practice, London 2006
[19] J. Hoeksma, From Common Market to Common Democracy, Oisterwijk 2016
[20] See supra notes 1 and 5
[21] Case Van Gend en Loos, ECLI:EU:C:1963:1
[22] Case Costa v E.N.E.L., ECLI:EU:C:1964:66
[23] EC Bulletin, 12-1973
[24] EC Bulletin, 12-1992
[25]
K. Lenaerts, ‘Civis Europaeus sum’: from the cross-border link to the
Status of Citizen of the Union, in: Constitutionalising the EU judicial
system, Cardonnel, Rosas & Wahl, Oxford 2012
[26]
A. von Bogdandy, The European Lesson for International Democracy, The
Significance of Articles 9-12 EU Treaty for International Organisations,
The European Journal of International Law, Vol 23, no 2
[27] Case Grzelczyk, ECLI:EU:C:2001:458, see W.T. Eijsbouts, Onze primaire hoedanigheid, Leiden 2011
[28] Case Ruiz Zambrano, ECLI:EU:C:2011:124
[29] Case Delvigne, ECLI:EU:C:2015:648
[30] Cases Puppinck, ECLI:EU:C:2019:1113 and Junqueras Vies, ECLI:EU:C:2019:1115
[31]
The present author has given a full analysis of the European Model of
Transnational Governance in ‘The Case BundesVerfassungsGericht versus
EU Court of Justice, supra note 11
[32] J. Habermas, Zur Verfassung Europas, Berlin 2011
[33] K. Nicolaïdis, Braving the Waves? Europe’s Constitutional Settlement at Twenty, JCMS 2018, Vol 56, Issue 7
[34] K. Lenaerts, New Horizons for the Rule of Law within the EU, German Law Journal 2020, Vol 21. Issue 1
[35]
A decisive step in this direction has been taken by the European
Parliament in its motion on the Establishment of an EU Mechanism on
Democracy, the Rule of Law and Fundamental Rights of 7 October 2020,
(2020/2072 (INL)). A more cogent argument that the EU has substituted
its own model of transnational governance for the traditional
Westphalian system of International Relations is hardly conceivable!
© Federal Trust