ECJ-President Rings Alarm Bells over Rule of Law

What is the EU? The President’s unprecedented call for institutional solidarity comes a fortnight after the suggestion of the outgoing Chancellor Merkel that the differences of opinion between the various member states of the EU cannot be solved by a plethora of legal disputes.[2] She continued by raising the question as to ‘what we are’: an organisation of states (Staatengemeinschaft) or an ever closer union? The fact that the most experienced head of government within the European Council should have used her last press conference in Brussels for reigniting the old debate about the identity of the EU, may have been perceived by the ECJ-President as something like a stab in the back. This impression is especially plausible in view of the fact that the entire case law of his Court after the entry into force of the Lisbon Treaty on 1 December 2009 is based on the legal principle that article 2 TEU enumerates the values of the Union and that Union works as a constitutional democracy![3]

Old as Methuselah

In EU terms, the debate about the nature of the Union is as old as Methuselah. Right after the start of the post-war experiment with shared sovereignty two schools of thought started quarrelling about the end goal of finalité politique of European integration. The federalists took the moral high ground by claiming that the Communities had a federal vocation and that the determination to lay the foundations for an ever closer union among the peoples of Europe had to lead inevitably to the creation of a United States of Europe. Prominent politicians such as the French president De Gaulle argued in contrast that the nation-states of Europe could only cooperate successfully on condition of mutual respect for each other’s sovereignty. The war of words between the sovereignists and the federalists was fuelled by political theorists who provided the antagonists with equally compelling arguments for their opposing claims. In the end, the adversaries agreed to disagree and to describe the EC/EU with an empty term as an organisation sui generis.[4]    

A New Subject of International Law

Seen against this background, Mrs Merkel’s questions appear to suggest that no progress whatsoever has been made in this debate during the past seventy years. In fact, this proposition seems to be underpinned by the findings of two political scientists, who concluded in 2017 that there is not yet a political theory of the EU.[5] From the legal viewpoint, however, this proposition must be forcefully refuted. It may even be argued that the process of European integration has led to the emergence of the EU as a new subject of international law! It will be submitted hereunder that the European Union not only forms a new kind of international organisation but also has developed its own model of transnational governance.

Replacing the Westphalian System [6]

The hypothesis to be elaborated is that the EU can be fruitfully perceived and analysed as a deviation from the prevailing theory on international affairs, known as the Westphalian system. In fact, the original desire to end the infinite circle of warfare in Europe contradicted the Westphalian paradigm already. The subsequent decision by the six founder states to share the exercise of sovereignty in the fields of coal and steel (ECSC) was rightfully described as a revolutionary breakthrough. After the experiment with shared sovereignty had been broadened to the entire economy (EEC), the Communities were identified by the European Council in 1973 as a Union of democratic States. As there is no point in governing a union of democratic states in an undemocratic or authoritarian manner, the union in question also aspired to obtain political legitimacy of its own. The decision to hold direct elections for the European Parliament in 1979 was followed by the introduction of EU citizenship in 1992. The concept of democracy was included in the values of the EU proper by virtue of the 1997 Treaty of Amsterdam, while the Charter of Fundamental Rights of the EU gave the newly created citizens their own Magna Charta. The hallmark of the 2007 Treaty of Lisbon is that it construed the EU as a representative democracy without turning the Union into a federal state. In consequence, the present treaties allow for the EU to be described as a ‘Union of democratic States, which also forms a constitutional democracy of its own’. In terms of political theory, the EU is neither a simple union of states nor a full federal state but forms a ‘democratic Union of democratic States’. Seen from the UN-perspective of global governance, the EU can be identified as a ‘democratic regional organisation’. Taking both perspectives together, the EU may identified in one definition as a ‘democratic regional organisation, which derives its political legitimacy both from its Member States and from the Union’.    

Institutional Backing

After the entry into force of the Lisbon Treaty, however, a number of member states started to backtrack from the post-Westphalian approach. One member state decided to use the opportunity of article 50 TEU to withdraw from the Union, while others want to reform it from within. In his address to the European Parliament of 19 October 2021 the Polish Prime-Minister Morawiecki emphasised that he regards the EU as a traditional union of sovereign states,[7] while the Hungarian PM Orban argued a month later that he does not want to wake up in a United States of Europe.[8] Honourable as these intentions may be from a political point of view, the European Council cannot place itself above the Treaties. It should not undermine the authority of the highest judicial body of the EU, but rather give it the institutional backing which any constitutional court has to receive from the polity it serves.