A democratic Union of democratic States: Jaap Hoeksma, Philosopher of Law, is the author of "The European Union: A democratic Union of democratic States". His idea on Democratic Citizenship Education for the Conference on the Future of Europe can be endorsed here.
His idea on Democratic Citizenship Education for the Conference on the Future of Europe can be endorsed here.
During the last meeting of the European Council, which she attended,
Angela Merkel raised the perennial question as to what the European
Union is. Reflecting on the debate in the Council about the objections
of some member states against the introduction of the conditionality
mechanism, she asked whether we are an organisation of states
(Staatengemeinschaft) or an ever closer union? It might be appropriate
to present the outgoing Chancellor with an EU-definition as goodbye
gift.
A democratic Union of democratic States
The
fact that the longest serving and most experienced member of the
European Council should raise this issue, may in itself be regarded as
unsettling. Two years after her inauguration as Chancellor she signed
the Treaty of Lisbon, which came to replace the so-called Constitution
for Europe. The hallmark of the 2007 Treaty on European Union (TEU) is
that it construes the EU as a democracy without turning the Union into a
State. The EU is not a state since article 4 of the Treaty obliges the
Union to respect the sovereignty of its Member States. At the same time,
the EU can neither be regarded as an organisation of states, because
the Union is also composed of citizens and has an autonomous legal order
as well as a directly elected parliament and a single currency.
Moreover, Title II TEU contains explicit provisions on the democratic
principles of the Union. Taking into account that the Treaty requires
its Member States to respect the values of democracy and the rule of
law, the EU can be described as a ‘Union of democratic States, which
also forms a democracy of its own’. The farewell present for Chancellor
Merkel may therefore be summarised in the line that the EU is a democratic Union of democratic States.
Theoretical deadlock
From
the legal perspective, it may be easier to answer Merkel’s question
than to explain why she should have felt obliged to pose it in the first
place. A dive in history may help to clarify that problem. Seventy
years after the start of the process of European integration politicians
are still stuck in the old dilemma of state or organisation of states,
Bundesstaat oder Staatenbund. Initially, the ECSC was compared to the
existing commissions for the governance of international rivers, such as
the Rhine-Commission. As experts could not agree on this issue, it was
decided to describe the European Communities as an organisation sui generis.
Under cover of this agreement, two schools of thought could flourish.
The intergovernmentalists argued that the EC/EU formed a union of
states, while the federalists could maintain that Europe had a federal
vocation and that the determination to lay the foundations for an ever
closer union among the peoples of Europe would inevitably lead to the
creation of a United States of Europe.
European model of Transnational Governance
The
fact that a wise and experienced leader like Chancellor Merkel saw
herself forced to raise the same question again in October 2021 can be
attributed to academic incompetence and political opportunism. Political
scientists concluded in 2017 that there is not yet a political theory
of the EU.[1]
So, political theorists have been unable to overcome the dilemma of the
Westphalian system and do not know how to interpret the gradual
evolution of the EC/EU. As the starting point of the process of European
integration consisted of a departure from the Westphalian principle of
absolute sovereignty, it might be expedient to study its subsequent
development as a further deviation from that model.[2]
From this perspective, it makes sense that the EU has evolved from a
Union of democratic States, as the Communities were identified by the
European Council in 1973, to a Union of democratic States, which also forms a democracy of its own (Lisbon Treaty).[3]
The stages along which this evolution has taken place can be
meticulously described, from the first direct elections for the European
Parliament in 1976 to the introduction of the rule of law mechanism in
2021. In consequence, political theorists have failed to recognise that
the EU has replaced the Westphalian system of International Relations
with its own European model of Transnational Relations.[4]
Clashing over the Rule of Law
While academic researchers have been unable to grasp this evolution, political leaders of some EU member states are unwilling
to do so. In his address to the EP of 19 October 2021 the Polish
Prime-Minister Morawiecki argued that the EU is a union of sovereign
states. He questioned the legal basis of the conditionality mechanism
and emphasized in line with the Westphalian principles that the EU must
refrain from interfering in the internal affairs of the sovereign state
of Poland. Hungary has lodged the same complaint and both cases are
treated simultaneously by the EU Court of Justice. The cases of Poland
and Hungary against the Commission perfectly illustrate the clash
between the traditional Westphalian system and the new European model of
Transnational Governance. Obviously, if the EU was a Westphalian union
of states, Poland and Hungary would win the case outright . However, the
EU Member States have gone much further in their commitments towards
each other. They have acceded to the EU, signed the Treaty of Lisbon and
have created a new kind of international organisation with a distinct
model of governance. The political leaders of Poland and Hungary should
have realised that governments of the day cannot unilaterally change the
treaties to which their countries have acceded. The values of democracy
and the rule of law, which are enshrined in article 2 TEU, cannot be
violated by member states without adequate reaction from the EU
institutions and other member states.
The fact that the EU is a
new kind of international organisation with a distinct system of
governance in the form of the European model of Transnational Governance
may reassure Chancellor Merkel that the answer to her last question is
contained in the Treaties. As the distinctive hallmark of the EU in
comparison to other regional organisations consists of its democratic
character, it can be identified as a ‘democratic regional organisation’.
So, the academic definition of the EU, which the author would like to
offer as a farewell present to Chancellor Merkel, reads in twenty words:
The
EU is a democratic regional organisation, which derives its political
legitimacy both from the Member-States and from the Union.
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