European sovereignty Peace Palace Library blog Jaap Hoeksma

Guest blog by Jaap Hoeksma.

The EU and its predecessors have been struggling with their identity ever since the start of the great transformation of Europe after World War II. As early as 1957 an international conference was convened in order to assess the nature of the newly founded European Coal and Steel Community. Was the ECSC comparable to the existing international river commissions or should it be regarded as a new kind of entity?[1] Since the participants as well as later generations failed to reach consensus, the stakeholders in the debate agreed to disagree by describing the EC as an ‘organization sui generis’. Numerous treaties and enlargements onward, the academic community continues to portray the EU in terms of an ‘organization sui generis’ as if nothing has happened![2]

Waking up dormant volcanoes

In view of the breath-taking development of the European Union this academic inertia seems hard to explain. It may well be that the prevailing compromise is regarded as convenient or that political theorists are paralyzed by the fear of waking up dormant volcanoes or even that researchers are suffering from a lack of academic imagination. Be that as it may, the present blogger intends to demonstrate that it is not impossible to establish the nature of the present EU in a transparent and comprehensible way. If underpinned by a proper theory, it can even be done in ten consecutive steps.

Union of democratic States

1 In its ground-breaking decision in the case Van Gend en Loos of 1963 the Court of Justice found that the practice of sharing sovereignty between member states had resulted in the emergence of an autonomous legal order.[3] A year later, the Court established that the law of the Communities has direct effect and, in case of conflict, takes precedence over national regulations.[4]

2 At the height of the Cold War the European Council described the then Communities in the Declaration on European Identity (Copenhagen 1973) as a ‘Union of democratic States’.[5] Although ‘unions of states’ are a regular phenomenon in international law and international relations, a union of democratic states, in which the exercise of sovereignty is shared between the participating states, is unprecedented. It constitutes a theoretical turning point inasmuch as it is giving rise to the hypothesis 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 organization should be democratic too.

The theory of democratic integration

3 The hypothesis is confirmed by the determination of the -democratic- member states to give the Communities democratic legitimacy too.[6] Having identified their organization as a Union of democratic States, they instantly agreed to upgrade the parliamentary assembly of the Communities to a directly elected European Parliament. In 1979 the citizens of the -then 9- member states went to the polls in order to elect the representatives of their country in the European Parliament.

4 In 1987 the European Council decided to make parliamentary control more effective by introducing qualified majority voting (QMV) in a number of fields. Obviously, national vetoes are incompatible with democratic control by a common parliament.

5 The decision to introduce EU-citizenship by virtue of the Maastricht Treaty in 1992 was motivated by the European Council with the wish to strengthen the position of nationals of the member states working elsewhere in the Union.[7] From the perspective of the theory of democratic integration, however, common citizenship is an indispensable requirement for the construction of a common democracy.

6 The theory of democratic integration was corroborated by the decision of the European Council, taken at the summit of Amsterdam in 1997, to include the concept of ‘democracy’ in the core values of the Union. Simultaneously, the Amsterdam Treaty introduced provisions aimed at enforcing the required respect for the values of the Union by the member states, including respect for democracy and the rule of law.

A democratic Union of democratic States

7 The promise of EU-citizenship was fulfilled through the Charter of Fundamental Rights of the EU, proclaimed at the 2000 Summit of Nice and subsequently integrated in the Lisbon Treaty. The Charter forms the Magna Charta of the citizens of the Union and guarantees both their legal and political rights. After it acquired force of law, the new citizens could confidently feel and say: ‘Civis Europaeus sum’.[8]

8 The unique hallmark of the 2007 Lisbon Treaty is that it construes the EU as a democracy without turning the Union into a state. It stipulates that both the member states and the Union have to meet stringent standards of democracy and the rule of law. By virtue of the Lisbon Treaty, European democracy may be described as a system of governance for the EU as a Union of democratic states, which also constitutes a democracy of its own.[9]

Obviously, the EU democracy is not a replica of that of its member states. While the democracies of the member states are based on the concept of nationality, the functioning of the EU democracy is founded on the Union’s common citizenship.[10]

9 In its landmark decisions of 19 December 2019 the EU Court of Justice established that the EU has an autonomous democracy.[11] This finding is in line with the conclusion of the 1963 Van Gend en Loos-verdict that the emerging polity had an autonomous legal order. Although this judgement is emphatically rejected by the German Constitutional Court in its ‘EZB-Urteil’ of 5 May 2020, the EU CoJ takes away the last thread of doubt about ‘the nature of the beast’.[12] If the member states of the European Union have to meet stringent standards of democracy and the rule of law and if the Union has an autonomous democracy of its own, the EU forms a democratic Union of democratic States.

10 Although it was triggered by the dismal EU Council meeting of July 2019, the Conference on the Future of Europe, which is to start in the autumn of 2020, offers an excellent opportunity to overcome the deadlock in the debate about the nature of the EU and to adapt the 1973 Declaration on European Identity to today’s realities. While a large majority of the members of the European Parliament insists on a more democratic Europe, the S & D Group has elaborated the view in its position paper of 9 June 2020 that the EU should become ‘a fully democratic Union of democratic States’.[13] Since this analysis reflects the nature of the EU as construed by the Lisbon Treaty, it may well become the basis for inter-institutional agreement on the adaptation of the Declaration on European Identity, proclaimed at the Summit of Copenhagen in 1973. The identification of the present EU as ‘a democratic Union of democratic States’ will form an inspiring reflection of the turbulent developments, which the EU has experienced over the past fifty years. A modernized Declaration on European Identity may also give the citizens a new sense of purpose and direction. They may pride the EU as the first democratic regional organization in the world.

Conclusion

The conclusion that the EU in its present form may be identified as a democratic Union of democratic States, is underpinned with an own and distinct political theory of the EU. The theory of democratic integration provides an explanatory model for the evolution of the EU from a Union of democratic States to a European democracy. The new theory may not only guide the EU and its stakeholders in the further evolution of the Union, but also serve as a model for other regional organizations with democratic intentions.

Although the emergence of a democratic regional organization could not have been foreseen by Immanuel Kant,[14] the academic community should cease to ignore the developments which are taking place in Europe. After the entry into force of the Lisbon Treaty the statement that it is not possible to determine the nature of the EU has lost scientific foundation.[15] Moreover, academic authors should refrain from lamenting that, seventy years after the creation of its first predecessor, the EU still lacks an own and distinct political philosophy.[16] Indeed, the quality of a proper theory is that it enables practitioners to make the right diagnosis. Analysed through the lens of the theory of democratic integration the EU faces two immediate challenges: it should improve the democratic character of the Union and it has to ensure enduring compliance with the values of article 2 TEU by the member states, notably with respect to the values of democracy and the rule of law.

 

[1] R. Ago and P. de Visscher, Actes officielles du congrès international d’études sur la Communauté Européenne du Charbon et de l’Acier, (Milan-Stresa 1957)

[2] With the notable exception of Jürgen Habermas, Kalypso Nicolaïdis, Jos Kapteyn, Koen Lenaerts and Mario Telò, to whom I am greatly indebted.

[3] ECLI:EU:C:1963:1

[4] ECLI:EU:C:1964:66

[5] EC Bulletin 12-1973

[6] Act concerning the election of the members of the European Parliament by direct universal suffrage, annexed to Council Decision 76/787

[7] J. Cloos, La traité de Maastricht, Brussels 1994

[8][8] 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 and Wahl, Oxford

[9] J. Hoeksma, European Democracy, Tilburg 2018

[10] Consequently, the European Parliament enjoys ‘representative autonomy’, as argued by K. Buitenweg, The European Parliament’s Quest for Representative Autonomy, The Hague 2016

[11] ECLI:EU:C:2019:1113 and 1115

[12] BundesVerfassungsGericht, Urteil des Zweiten Senats vom 05. Mai 2020, 2 BvR 859/15

[13] S & D Paper on the EU’s constitutional future: towards a stronger political Union, Brussels 2020

[14] I. Kant, Zum Ewigen Frieden, Königsbergen 1796

[15] A. Rosas and L. Armati, EU Constitutional Law, Oxford 2018

[16] R. Bellamy and J. Lacey, Political Theory and the European Union, Routledge 2017

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