In all its atrocity, the Russian invasion of Ukraine may serve to recall that the democratisation of Europe is both a momentous achievement and an ongoing challenge. The democratisation of Europe, which started in the middle of the 20th century in reaction to the atrocities of the Second World War, can be described as the historic undertaking to change a belligerous continent into a democratic union of democratic states.[1] The achievements of the European quest for ‘ever closer union’ are so original that politicians and scholars still have to coin the terms with which to name them. A democratic union of democratic states is a new concept in international relations, which is based on the equally innovative practice of shared exercise of sovereignty. From the perspective of the UN-system of global governance, the European Union constitutes an unprecedented phenomenon too. The Charter of the United Nations, which was adopted in the aftermath of the Second World War, distinguishes between states and unions of states. As the EU in its present form does not fit the description of either category, its existence also requires the introduction of a new term in the field of international relations. Considering that the distinctive hallmark of the EU in relation to other international and regional organisations consists of its democratic character, the EU may be identified for the purposes of international affairs as a democratic international organisation.[2]

Mutual trust

The central thesis of the present essay is that the process of European integration is resulting in the creation of an entirely new kind of democracy.[3] The EU has developed an original and unprecedented form of public organisation, which can be perceived from the internal viewpoint of the citizens as a democratic union of democratic states, while it may be described from the external perspective of the UN-system of global governance as a democratic international organisation.[4] The fact that the EU is not only composed of states – like traditional international organisations – but also of citizens, implies that the Union had to develop a new model of governance too. It will be demonstrated indeed that the EU has replaced the traditional Westphalian system of International Relations with its own and distinct European model of Transnational Governance. While the UN-system of global governance is based on the Westphalian principle of absolute sovereignty, the European model takes the pooling of sovereignty as its point of departure. The initial reason for the practice of pooling sovereignty was to prevent the recurrence of war on the ‘old continent’. The Founding Fathers intended to ensure that war would no longer be regarded as the continuation of diplomacy with other means. They wanted to replace the battlefield with the conference room. They were willing to sacrifice the holy principle of absolute sovereignty for the guarantee of peace. The mutual trust, required for making such far-reaching arrangements, has been codified in the treaties, which they concluded between them. The participating states shared the exercise of sovereignty in the pursuit of common goals and entrusted the governance and supervision of their common endeavour to a higher authority. While this practice was applied to ever wider fields in the seventy years after the foundation of the European Coal and Steel Community in 1952, the principle of mutual trust remained the cornerstone of this revolutionary cooperation. An inherent consequence of this approach is that the law of the Community/Union must take precedence over national laws and regulations and that the EU Court of Justice has to have the last say with respect to the interpretation of European law. So, the European model of Transnational Governance has been substituted in the functioning of the EU for the Westphalian system of absolute sovereignty. In practical terms, EU member states can no longer invoke the Westphalian principle of non-interference in internal affairs, when they violate the values and rules of the European Union. As the EU Court of Justice emphasized in its recent ruling on the conditionality mechanism, the European Union must be able to defend those values within the limits of its powers.[5]

Clashing Paradigms

Less than a fortnight after the conditionality verdict of the EU Court of Justice, the need for the EU to protect its values in the field of foreign affairs too was highlighted by the Russian aggression against Ukraine. Invaded by Putin’s army as punishment for its desire to exercise its right of self-determination and to function as a sovereign democratic state, Ukraine turned to its democratic allies for help, diplomatic support and material assistance. This unforeseen eruption of violence in the heart of Europe at the start of the 21st century forces the EU to urgently reconsider its policies in the field of foreign affairs and security. From the perspective of international relations, the Russian war against Ukraine can be perceived as an effort to revive the 19th century concept of imperial spheres of influence and the balance of power. The Russian dictator is not the only politician to long for a return to Westphalia.[6] As leader of the Vote Leave campaign in the United Kingdom, the current British Prime Minister Johnson deluded the electorate of his country by portraying the EU as a ‘Nazi-State’.[7] As subsequent policies elucidated, his intention was to abolish the practice of shared exercise of sovereignty and to restore the Westphalian glory of ‘Global Britain’. He even celebrated the day on which the departure of the UK from the EU was effectuated as ‘Independence Day’, thereby suggesting that his country had been occupied by a foreign power. However, the desire for a return to Westphalia is not merely an innocuous expression of a political goal. While the British Prime Minister never apologised to the EU for his portrayal of the Union as a Nazi-State, Putin’s declared aim of his war against Ukraine is to ‘denazify’ the former brotherly country. The linguistic analogy is too obvious to be overlooked![8]

The realisation that it may have to defend itself against adversaries from within and enemies from abroad started to dawn upon the EU only after the Vote Leave campaign had reached is goal and the UK had exited the Union. The European Democracy Action Plan, which was launched by Commissioner Jourová in December 2020, aims to combat fake news & disinformation and to ‘build more resilient democracies across the EU’.[9] Regrettably, however, the European Union, its institutions and its stakeholders are far from unanimous in their perception of the EU as a democracy. After the October 2021 meeting of the European Council, in which tensions about the rule of law ran high, the outgoing German Chancellor Merkel openly raised the question as to ‘what we are, an association of states or an ever closer union?’[10] She suggested that the problem concerning the nature of the EU might be a topical issue for the Conference on the Future of Europe, which was initiated after the dismal ‘Spitzenkandidaten-clash’ between the European Council and the European Parliament in July 2019. Unfortunately, the Europaserver has already provided a totally inadequate answer to Mrs Merkel’s question by describing the EU as a ‘unique economic and political union between 27 European countries’.[11]

Beyond the EU’s ontological crisis

Although the uncertainty of the EU concerning its nature and its inability to ‘say what it is’ can be explained for historical reasons, the European Union cannot afford to prolong its ontological crisis. The challenges from within and from outside are too urgent to leave the matter unresolved. The Conference on the Future of Europe should therefore come up with a convincing concept of the EU as a European democracy of states and citizens. As the Belgian Prime Minister De Croo underlined in his Bruges speech of October 2021, ‘the last thing Europe needs is another debate between the eurofederalists and the eurosceptics’.[12] Against this background of uncertainty and indecision, it is a most helpful development that the EU Court of Justice has given a clear indication concerning the line of thought by revealing the autonomous character of the EU’s democracy.[13] It accentuates in its jurisprudence that the EU is not merely a more or less traditional union of democratic states, but also constitutes a democracy of its own. As the Court reiterated the view in its verdict concerning the conditionality mechanism that the values of the EU as contained in article 2 TEU must be respected both by the Union and by its Member States, the established case law of the Court warrants the identification of the EU as a democratic union of democratic states.[14]

At this juncture, an imaginative contribution from the academic community is urgently called for. So far, political theorists, historians, philosophers and lawyers have mainly contributed to the continuation of the  Westphalian status quo in the debate about the nature of the EU and the Future of Europe. Neo-functionalist theorists have been arguing over the decades that the EC/EU had to become a United States of Europe or for that matter a Federal Republic of Europe. They portrayed European integration as an incremental process in which the ‘spill-over effect’ would ensure that the first step would be necessarily followed by the next one until the end goal would have been attained. Their opponents, the intergovernmentalists, insisted that European cooperation had to result in the establishment of a Europe of Nation-States, in which the participating states would ensure mutual peace and democratic governance within national borders. Both theories, however, are unable to account for the emergence of a new form of international organisation with a distinct model of governance. Despite their differences, the two adversaries stuck to the Westphalian principles and agreed that democratic governance presupposes the existence of a sovereign state. For the radical federalists, this principle implied that the EU had to become one overarching federal state, while their opponents remained equally convinced of their concept of a union of sovereign democratic states.

The stunning result of this academic lack of imagination is that the EU works as a democracy without knowing it.[15] This aphorism is confirmed by the recent observation of a leading political theorist that ‘there is not yet a political theory of the European Union’.[16] It is also corroborated from a legal point of view by a former judge of the EU Court of Justice who posited at the close of a thorough study on EU Constitutional Law that ‘it is highly questionable whether it will ever be possible to establish the nature of the EU’.[17] This state of affairs is especially regrettable in view of the circumstances that article 10 of the Treaty on European Union grants each citizen the right to participate in the democratic life of the Union and that the Conference on the Future of Europe has been initiated with the view to connect the citizens with their Union.

Pitfalls in theorising the EU

In filling the gap, three pitfalls should be avoided. The first one stems from the Westphalian system of International Relations and holds that concepts of democracy and the rule of law can only come to fruition within the boundaries of a sovereign state. This presumption is based on the hypothesis that sovereignty must be one and indivisible. Ever since the start of the process of European integration, however, the EC/EU and its member states have been demonstrating that it is possible for states to share the exercise of sovereignty in ever wider fields without losing statehood. In fact, the 2007 Lisbon Treaty construes the EU as a democracy without turning the Union into a State. The EU is already a European democracy of states and citizens irrespective of whether or not its architecture is theoretically impossible!

The second pitfall, which must be avoided, holds that European democracy is only feasible if and after the EU has become a federal European state. This presupposition amounts to an old and outdated axiom of stubborn federalists, which is contradicted by the present construction of the EU as a democratic union of democratic states. Obviously, the EU is not an ideal democracy of perfectly democratic states, but it proves in practice that European democracy can also be realised in the framework of a democratic international organisation.[18] In other words, the desire for ever closer union between the peoples of Europe does not necessarily have to result in the creation of a federal European state but may also be implemented through the construction of a transnational democracy, in which both the constituent parts and the union work as constitutional democracies. In short, the pursuit of an ever closer union between the peoples of Europe has resulted in the creation of the EU as a dual democracy.

Critics of the system of representative democracy, which underlies the functioning of the EU, are presenting the Union and its citizens with a third pitfall. Arguing that representative democracy is unable to reflect the will of the people(s), the most radical critics propose to replace elections with a system of sortition. Others want to complement representative democracy with forms of deliberative or participatory democracy. In the context of the Conference on the Future of Europe their ideologists even ventured to suggest that the member states of the EU must be abolished for the sake of the equality of the citizens and that the will of these citizens should be determined by a system of institutional sortition. Obviously, the critics are speaking out of turn. It is contradictory to condemn and reject a system of governance before it has even been established. The appropriate course of events is to start the experiment of representative democracy on a transnational scale before rejecting it as insufficient or illusory. The magnitude of the experiment is impressive enough. The Treaty on European Union construes the EU as the first-ever transnational democracy on the globe! So, the primary task for the EU institutions is to make their transnational democracy work before contemplating to replace it with an entirely different system.

Conclusion

Finally, it should be realised that the democratisation of Europe is not a gift from history. It is, on the contrary, a tremendous achievement for which generations of politicians and citizens have been making great sacrifices. The democratisation of Europe is neither the result of a planning exercise devised by some kind of omniscient central command.[19] Instead, it is the outcome of a process of trial and error, in which mistakes have been made, interests have been promoted and clashes have taken place.[20] The democratisation of Europe is in essence a human exercise in civilisation. It may be vulnerable but it is not defenceless. It may be imperfect, yet it can be improved. Its values may be challenged from within by elected political leaders but it has the tools to resist and overcome the ‘tribalisation of Europe’.[21] As the EU Court of Justice elucidated in its jurisprudence after the entry into force of the Lisbon Treaty on December 1, 2009, the new treaty not only construes the EU as a European democracy but also provides the means with which to defend its character as a value-based international organisation against efforts to undermine it from within. The structural problems in connection with the maintenance of the rule of law and the respect for the democratic functioning of the Union can be solved within the present architectural framework of the EU. As the President of the EU Court of Justice pointed out in his recent address to the FIDE-Conference in The Hague, the executive institutions of the Union must assume their respective responsibilities too.[22]

In hindsight, it may turn out to be a fortunate coincidence that the Report van Rompuy and the verdict of the EU Court of Justice were published prior to the Russian war against Ukraine. Less than a fortnight after the start of the invasion, it is far too early to chart the consequences for the policies of the EU in the fields of foreign affairs and security. It is, however, encouraging to realise that the EU has found its constitutional form as a democratic union of democratic states and that it has developed its own and distinct model of governance. As the architectural and constitutional foundations of the EU have been elaborated, the institutions and member states should start to act within the parameters of the new paradigm and ameliorate and/or adapt them. The European Commission should notably realise that it cannot simultaneously present the EU as a union of states and aspire to give a new push to European democracy![23] In addition, the academic community should finally do what is long overdue: it has to develop theories capable of explaining the functioning of the EU as a European democracy of states and citizens. It has taken the EC/EU seventy years to live up to the dreams of the Founding Fathers, although they could not have imagined that their endeavour would have required a new form of international organisation and a novel model of governance.[24] These unprecedented innovations have taken place in spite of rather than thanks to the academic community.[25] Time has come for political theorists, constitutional lawyers, historians and philosophers to make up for their failings. The EU should not only function as a European democracy, it must also learn how to improve it.[26] For that purpose, academic theories are indispensable![27]

 

Notes

[1] The formulation of ‘democracy in Europe and democracy of Europe’ appears to cover the same concept, Report of European Democracy, High Level Group of the Committee of the Regions, February 2022, referred to further on as the Report van Rompuy.

[2] Cf M. Teló (ed), The European Union and New Regionalism, London 2014

[3] D. Held, Models of Democracy, Cambridge 2006

[4] From the perspective of political theory Brigid Laffan qualifies the EU as a ‘collective power’. In this approach, absolute sovereignty results in national power, while shared sovereignty leads to collective power. B. Laffan, Europe voices collective will and flexes muscle, The Irish Times, march 5, 2022

[5] Cases Hungary/Council and Parliament and Poland/Council and Parliament of 16 February 2022, EU:ECLI:C:2022:97 and EU:ECLI:C:2022:98

[6] Ph. Stevens, Europe’s Return to Westphalia, Financial Times June 23, 2011

[7] The Guardian, May 15, 2016

[8] In order for the UK to rejoin the EU, a fundamental change of attitude towards Great-Britain’s place and role in the world will be required!

[9] https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM%3A2020%3A790%3AFIN&qid=1607079662423

[10] Augsburger Allgemeine, October 21, 2021

[11] https://op.europa.eu/webpub/com/eu-what-it-is/en/ The Europaserver is ‘an official website of the EU’.

[12] A. de Croo, Opening Address College of Europe, https://www.premier.be/en/opening-address-college-europe

[13] Cases Puppinck and others and Junqueras Vies of December 19, EU:ECLI:C:2019:1113 and EU:ECLI:C:2019:1115

[14] J. Hoeksma, The European Union: a democratic Union of democratic States, Oisterwijk 2021

[15] The comparison with Molière’s Mr Jourdain can hardly be overlooked. Molière’s character had been speaking prose without knowing it (Molière, Le Bourgeois Gentilhomme, Act II, Scene 4)

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

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

[18] K.M. Buitenweg, The European Parliament’s Quest for Representative Autonomy, The Hague 2016

[19] Z. Turk, Hayek’s Lessons for the European Union, 10th International Conference, Vienna 2021

[20] H. Vos, Dit is Europa, Gent 2021

[21] M. Wind, The Tribalization of Europe: A Defence of our Liberal Values, Polity 2020. The gist of the present essay is to argue that, while democratic backsliding may be a global phenomenon indeed, as the author posits, the EU has the legal authority and instruments to reverse the process within the Union.

[22] K. Lenaerts, Constitutional Relationships between Legal Orders and Courts within the European Union, address FIDE-Conference, The Hague November 4, 2021, EU Law Live, Weekend Edition nr 81

[23] The policy priority of the Commission Von der Leyen ‘to give a new push to European democracy’ of July 2019 is flatly contradicted by the description of the EU in the publication ‘The European Union. What it is and what it does’ as a unique economic and political union between 27 European countries (supra note 9). The latest update of this publication stems from June 2021! The Directorate-General Communication, which continues to describe the EU in terms of a union of states, falls under the direct responsibility of the same President of the European Commission, who wants to give European democracy a new push.

[24] P.J.G. Kapteyn, Internationale en supranationale variaties op een parlementair-democratisch thema, Leiden 1964

[25] K. Nicolaïdis, Kant’s mantle: cosmopolitism, federalism and constitutionalism as European ideologies, Journal of European Public Policy, 27:9, 1307-1328

[26] Thirty years after the introduction of EU citizenship by virtue of the 1992 Treaty of Maastricht, the European Commission may finally wish to include the citizens in its definition of the EU and to present the Union in its publications as a European democracy of states and citizens.or, alternatively, as follows: The EU is a union of 27 states and 450 million citizens, which works as a European democracy.

[27] The present author has made a start with the belated debate by developing the theory of democratic integration, J. Hoeksma, European Democracy, Tilburg 2019. For other approaches, see J. Habermas, Zur Verfassung Europas, Berlin 2011 and  D. Innerarity, Democracy in Europe, Palgrave Mc Millan 2018