EU Collective Power in Legal Terms


The democratisation of the European Union is a historic achievement which poses great challenges. Inspired by the desire to create an ever closer union among the peoples of Europe, the EU has established itself as a new kind of international organisation with an innovative model of governance. The hallmark of the EU in its present form is that it is not merely a union of democratic states but also constitutes a democracy of its own. The challenges ahead for the EU are to strengthen its constitutional identity and to  defend the Union against erosion from within and aggression from abroad.

Guest blog by Jaap Hoeksma.

The results of the drive towards ever closer union have often taken pundits and politicians by surprise. At the time of the ratification of the Treaty of Rome in 1957 hardly any commentator predicted that the EEC-Treaty laid the basis for the primacy of European law as established by the European Court of Justice in 1963. None of the participants of the Summit of Maastricht intended to pave the way for the construction of a European democracy, when the Council decided to include EU citizenship in the Treaty on European Union. While the aim of the signatories was to complete the internal market by enforcing the rights of workers, taking up employment in other member states, the initial rejection of the Maastricht Treaty by the Danish voters ensured that EU citizenship was to be regarded as complementing rather than substituting the national status of the subjects of the Union’s member states.

Dual Democracy

An unforeseen result of the Conference on the Future of Europe, which will be closed with an address of the newly elected French President Macron, is that the EU has overcome the stalemate in the discussion about its end goal or finalité politique. The Report on European Democracy, which the CoR High Level Group under the chairmanship of Herman van Rompuy has published in February 2022, has put beyond doubt that the current EU is neither a federal state nor a confederal union of states. The report establishes instead that the EU has developed its own transnational democracy alongside the national democracies of its member states, which may be described as a dual democracy. The message of the report is in its own words that we have both democracy in Europe and democracy of Europe (link). As the values of the EU, accentuated in article 2 TEU, are common to all member states, each of the EU’s members must respect the principles of democracy and the rule of law. In exercising the sovereignty  which the member states have transferred to the EU, the Union itself also has to respect these principles. So, the souveraineté européenne, which President Macron regards as imperative, is bound to the same principles of good governance as that of the member states. In legal terms, the treaties prescribe the EU to meet similar standards of democracy and the rule of law as the Union requires its member states to respect.

Increasing European Legitimacy

The conceptual trend which the report reveals is that, as a European democracy, the EU should enjoy a similar level of legitimacy with the citizens as their member states. The majority of the EU-institutions have been acting in the same spirit during the present legislature. The European Commission has launched its Democracy Action Plan (EDAP) in order to defend the EU’s democracies (in the plural!) against foreign disinformation and has introduced the conditionality mechanism with a view to ensure continued respect for the EU’s values by its member states. The European Parliament has made a significant contribution by the long-awaited adaptation of the electoral system of the Union to the construction of the EU as a dual democracy (article 223 TFEU), while it has also initiated programs for EU citizenship education. In addition, the EU Court of Justice has clarified the concept of the EU’s autonomous democracy in its verdicts of 19 December 2019. As the citizens have submitted their priorities in the recommendations of the Conference on the Future of Europe, it is now up to the European Council to make the final steps in preparing the EU for the next stage in its evolution towards an ever closer union, most urgently in the field of foreign affairs.      

Collective Power

The Russian invasion of Ukraine has highlighted the need for the EU to assert itself as a democratic polity on the global stage. In his capacity of High Representative for Foreign Affairs Josep Borrell has time and again argued that Europe should not be a global playfield and that the EU should instead become a global player. The political theorist Brigid Laffan, who is to hold the annual Asser Lecture on 10 May forthcoming in the Academy Hall of the Peace Palace, describes the EU as a ‘collective power’. She implies that the absolute sovereignty as ‘regained’ by the UK after Brexit leads to single power, whereas the sharing of sovereignty results in collective power. As a regular blogger on this website, the present author would like to link her address to an earlier conference on the EU of 28 June 2011 the same Academy Hall (linkand to ‘translate’ her concept in legal terms. Taking into account that ‘collective power’ is only feasible in a post-Westphalian perception of international relations, legal scholars may identify the EU in terms of the UN system of global governance as a ‘democratic international organisation’. This qualification accounts for both the academic conclusion that the EU has evolved into a new subject of international law (as previously concluded hereand for the special status which the Union enjoys with the United Nations since the entry into force of the 2007 Lisbon Treaty.