During the last meeting of the European Council, which she attended, Angela Merkel raised the perennial question as to what the European Union is. Reflecting on the debate in the Council about the objections of some member states against the introduction of the conditionality mechanism, she asked whether we are an organisation of states (Staatengemeinschaft) or an ever closer union? It might be appropriate to present the outgoing Chancellor with an EU-definition as goodbye gift.

A democratic Union of democratic States

The fact that the longest serving and most experienced member of the European Council should raise this issue, may in itself be regarded as unsettling. Two years after her inauguration as Chancellor she signed the Treaty of Lisbon, which came to replace the so-called Constitution for Europe. The hallmark of the 2007 Treaty on European Union (TEU) is that it construes the EU as a democracy without turning the Union into a State. The EU is not a state since article 4 of the Treaty obliges the Union to respect the sovereignty of its Member States. At the same time, the EU can neither be regarded as an organisation of states, because the Union is also composed of citizens and has an autonomous legal order as well as a directly elected parliament and a single currency. Moreover, Title II TEU contains explicit provisions on the democratic principles of the Union. Taking into account that the Treaty requires its Member States to respect the values of democracy and the rule of law, the EU can be described as a ‘Union of democratic States, which also forms a democracy of its own’. The farewell present for Chancellor Merkel may therefore be summarised in the line that the EU is a democratic Union of democratic States.

Theoretical deadlock

From the legal perspective, it may be easier to answer Merkel’s question than to explain why she should have felt obliged to pose it in the first place. A dive in history may help to clarify that problem. Seventy years after the start of the process of European integration politicians are still stuck in the old dilemma of state or organisation of states, Bundesstaat oder Staatenbund. Initially, the ECSC was compared to the existing commissions for the governance of international rivers, such as the Rhine-Commission. As experts could not agree on this issue, it was decided to describe the European Communities as an organisation sui generis. Under cover of this agreement, two schools of thought could flourish. The intergovernmentalists argued that the EC/EU formed a union of states, while the federalists could maintain that Europe had a federal vocation and that the determination to lay the foundations for an ever closer union among the peoples of Europe would inevitably lead to the creation of a United States of Europe.

European model of Transnational Governance

The fact that a wise and experienced leader like Chancellor Merkel saw herself forced to raise the same question again in October 2021 can be attributed to academic incompetence and political opportunism. Political scientists concluded in 2017 that there is not yet a political theory of the EU.[1] So, political theorists have been unable to overcome the dilemma of the Westphalian system and do not know how to interpret the gradual evolution of the EC/EU. As the starting point of the process of European integration consisted of a departure from the Westphalian principle of absolute sovereignty, it might be expedient to study its subsequent development as a further deviation from that model.[2] From this perspective, it makes sense that the EU has evolved from a Union of democratic States, as the Communities were identified by the European Council in 1973, to a Union of democratic States, which also forms a democracy of its own (Lisbon Treaty).[3] The stages along which this evolution has taken place can be meticulously described, from the first direct elections for the European Parliament in 1976 to the introduction of the rule of law mechanism in 2021. In consequence, political theorists have failed to recognise that the EU has replaced the Westphalian system of International Relations with its own European model of Transnational Relations.[4]

Clashing over the Rule of Law

While academic researchers have been unable to grasp this evolution, political leaders of some EU member states are unwilling to do so. In his address to the EP of 19 October 2021 the Polish Prime-Minister Morawiecki argued that the EU is a union of sovereign states. He questioned the legal basis of the conditionality mechanism and emphasized in line with the Westphalian principles that the EU must refrain from interfering in the internal affairs of the sovereign state of Poland. Hungary has lodged the same complaint and both cases are treated simultaneously by the EU Court of Justice. The cases of Poland and Hungary against the Commission perfectly illustrate the clash between the traditional Westphalian system and the new European model of Transnational Governance. Obviously, if the EU was a Westphalian union of states, Poland and Hungary would win the case outright . However, the EU Member States have gone much further in their commitments towards each other. They have acceded to the EU, signed the Treaty of Lisbon and have created a new kind of international organisation with a distinct model of governance. The political leaders of Poland and Hungary should have realised that governments of the day cannot unilaterally change the treaties to which their countries have acceded. The values of democracy and the rule of law, which are enshrined in article 2 TEU, cannot be violated by member states without adequate reaction from the EU institutions and other member states.

The fact that the EU is a new kind of international organisation with a distinct system of governance in the form of the European model of Transnational Governance may reassure Chancellor Merkel that the answer to her last question is contained in the Treaties. As the distinctive hallmark of the EU in comparison to other regional organisations consists of its democratic character, it can be identified as a ‘democratic regional organisation’. So, the academic definition of the EU, which the author would like to offer as a farewell present to Chancellor Merkel, reads in twenty words:

          The EU is a democratic regional organisation, which derives its political legitimacy both from the Member-States and from the Union.        

 

Notes

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

[2] J. Hoeksma, Replacing the Westphalian system, Federal Trust October 2020

[3] As discussed by R. Corbett, Democracy in the European Union, in Kenealy, Peterson and Corbett, The European Union: How does it work?, OUP 2012

[4] J. Hoeksma, The Case BundesVerfassungsGericht vs EU Court of Justice, Oisterwijk 2020