The decision of the European Council to introduce a rule of law mechanism in the budget of the European Union marks the emergence of a new model of transnational governance in Europe.[1] The European Model of Transnational Governance, as it may be called, has arisen alongside the prevailing Westphalian System of International Relations, according to which the EU had either to become a federal state or to form a confederal union of states. However, the Westphalian imperative has not materialised. By establishing itself as a Union of democratic States, based on the rule of law, which also functions as a constitutional democracy of its own, the EU has evolved into a new category of international law.
Blog by Jaap Hoeksma
Stages along the road
The purpose of the present blog is to highlight the appearance of the European Union as a new entity on the international stage and to chart the stages along which its evolution has taken place.[2]
1 The first deviation of the emerging polity from the Westphalian system consisted of the decision to share sovereignty in the field of coal and steel. As the prevailing model holds that sovereignty must be one and indivisible, the introduction of shared sovereignty in 1952 (ECSC) meant a revolutionary breakthrough of the traditional pattern of international organisation.[3]
2 After they had identified the European Communities in 1973 as a ‘Union of democratic States’, the leaders of the participating states agreed to give their Union democratic legitimacy by organising direct elections for the European Parliament. As it is theoretically impossible for organisations of states to have elected parliaments, this decision implied a major leap beyond the Westphalian system too.
3 Organisation of States don’t have citizens. The determination of the European Council to introduce EU-citizenship in 1992 implied a definite departure from the established principles of international organisation.[4]
4 As a matter of principle, organisations of states are unable to function in a democratic way. However, the introduction of EU citizenship paved the way for the inclusion in 1997 of the concept of democracy in the core values of the Union.
5 International Monetary Theory holds that each currency must be backed by a state. Debts incurred by states are therefore referred to as ‘sovereign debts’. Although the introduction of the euro as the single currency of the EU had been insufficiently prepared, the EMU member states and the EU institutions succeeded in establishing themselves during the euro-crisis as the ‘joint sovereign’ behind the euro.[5]
6 In its advice on the proposed accession of the EU to the European Convention on Human Rights the EU Court of Justice established in 2014 ‘that the EU is, under international law, by its very nature precluded from being regarded as a State.’[6]
7 The integration of a rule of law mechanism is incompatible with the concept of a union of states as it would amount to an unacceptable interference in the internal affairs of a sovereign state.
Conclusion
As the legal facts are putting beyond doubt that the European Union can neither be regarded as a state nor as a union of states, the EU has to come to terms with the idea that it does not fit any longer in the categories of the Westphalian system. Fortunately, the same legal facts also provide clear and convincing evidence about the various options, which the EU has for presenting itself to its citizens, its member states and the outside world. The 2007 Lisbon Treaty allows for the EU to be described as a ‘Union of States and Citizens’ or, from the conceptual perspective, as a ‘democratic Union of democratic States’.[7] Moreover, the decision of the European Council to introduce a rule of law mechanism in the functioning of the EU makes it possible to deepen the understanding of the Union by portraying it as a ‘Union of democratic states, based on the rule of law, which also functions as a constitutional democracy of its own’. In terms of International relations, the EU may present itself at the global level as a ‘democratic regional organisation’.
Il faut cultiver notre jardin
The evolution of the EU from a union of states to a European democracy illustrates once more that paradigm changes tend to take place in reality before being recognised and acknowledged by the academic community. The citizens of the EU are already defying the Westphalian principles by taking part in elections for the European Parliament and -in the EMU-countries- by paying with euros. At the same tine, the political leaders of the member states are already participating in the meetings of the European Council as a body beyond the Westphalian paradigm, while the EU Court of Justice has already established itself as the Court of last resort in matters of EU-law. In short, the EU, its citizens and its member states are already acting in line with the - partly still unwritten - rules of the new European Model of Transnational Governance.
It is therefore high time for the academic community to catch up. It should no longer content itself with the aphorism of the late Michael Burgess that the EU works in practice, although it cannot function in theory. If the ‘Academia Europaea’ wants to retain any relevance for the process of European integration, it should come up with an own and distinct theory of the EU beyond the Westphalian paradigm. Fortunately, the conditions for a concerted effort are promising.
The Conference on the Future of Europe, which is about to start, will offer a unique opportunity for thorough exchanges of views and transnational discussions. Moreover, the EU Research and Innovation programme #HorizonEU has just received serious funding for the period from 2021 to 2027, while the theory of democratic integration, launched by the present author on this website, may serve to show that it is not impossible to develop a theory underpinning the functioning of the European Union as a post-Westphalian polity.[8] It just needs to be done, keeping in mind Voltaire’s wise counsel: ‘Il faut cultiver notre jardin!’
[1] As amended by the European Parliament in Resolution (2020/2923(RSP) of 16 December 2020.
[2] In line with the habit of EU-treaties to portray themselves as ‘a new stage in the process of creating an ever closer union among the peoples of Europe’.
[3] As formulated as early as 1970 by P.J.G. Kapteyn in Kapteyn & VerLoren van Themaat, Inleiding in het recht van de Europese Gemeenschappen, Deventer 1970
[4] Notwithstanding the irony of the face that the political leaders, gathered in Maastricht, merely envisaged to ‘complete the internal market’. J. Hoeksma, From Common Market to Common Democracy, Oisterwijk 2016
[5] D. Schoenmaker, The sovereign behind the euro, in J. Hoeksma and D. Schoenmaker, A Polity called EU, Nijmegen 2011
[6] ECLI:EU:C:2014:2475
[7] J. Hoeksma, The Case BundesVerfassungsGericht versus EU Court of Justice, Tilburg 2020
[8] J. Hoeksma, The Theory of Democratic Integration, Oisterwijk 2018