Article Published February 26th, 2021

The author wishes to dedicate the present essay to the memory of the ever inspiring Michael Burgess, in live Founder and Director of the Centre for Federal Studies at the University of Kent.

 

For decades, it has been common practice in academic circles to refer to the EU as a rare bird, an ‘ava raris’ or an organisation ‘sui generis’.[1] Political theorists and lawyers alike tend to agree that the nature of the beast is so hard to determine because it seems to be composed of two different animals. It is said to have some of the hallmarks of a federal state, but also some features of a confederal organisation of states. For that reason, the ava raris is being described by scholars as a platypus, the creature which astonished observers on the Australian continent since it appeared to be a duck and a mammal at the same time![2] After the entry into force of the Lisbon Treaty, however, it may be suggested that the present EU resembles an ostrich. The nature of the beast has been established beyond doubt, but the poor animal buries its head in the sand out of fear that it will have to accept itself for what it is: neither a state nor an organisation of states, but a democratic union of democratic states.[3]

The problem of paradigm changes

The most likely explanation for this irrational behaviour may be that the EU continues to be studied through the lens of a traditional paradigm, while it needs to be analysed with a fresh pair of eyes. The famous aphorism of the late Michael Burgess, that the EU works in practice although in cannot function in theory, pointed at an impending change of paradigm already in 2006![4] A complicating characteristic of paradigm changes, however, proves to be that they are acknowledged and described by theorists only after they have taken place in reality. Paradoxically, they are often implemented before they have been anticipated. The present predicament of the EU may serve to illustrate the paradox. As from the foundation of the European Coal and Steel Community in 1951, political theorists argued that the emerging polity had either to become a federal state or to establish itself as a confederal organisation of states. They adamantly stressed that there were no other options available! Tertium non datur!! Trapped in the prevailing paradigm, known as the Westphalian system of International Relations, they did not question the validity of their judgement. Even the fact that first-grade students could convincingly demonstrate that the EU is neither a state nor an organisation of states, did not deter the antagonists from continuing to profess their belief.[5]

Divergent arguments for statehood

Almost seventy years onward, dogged Brexiteers and ardent federalists argue with equal devotion that the EU is a State or is at least on its way to become a State. In reaction to the rejection in 2005 of the ill-fated Constitution for Europe by the electorates in France and The Netherlands, the Belgian politician Guy Verhofstadt wrote a pamphlet with the explicit title: The United States of Europe.[6] In an interview, published in December 2020, he expressed his conviction once more, suggesting that the federal vision should be presented to the EU citizens anew, since the 2005 Constitution had been rejected for reasons not related to his brainchild.[7]

In the aftermath of the British withdrawal from the EU, the former MEP Daniel Hannan defended Brexit by arguing in The Telegraph on 24 January 2021, that the EU had become a federal State indeed and that the UK had taken the right decision by leaving the continental State of Europe.[8] In his view, the EU fulfils all the criteria for statehood as mentioned in article 1 of the 1933 Montevideo Convention on the Rights and Duties of States.[9] He underlines that it has a permanent population, a defined territory as well as a government and the capacity to enter into relations with other states.

However, the suggestion that the EU has a government, which independently exercises the highest authority in the land, is wrong and misleading. Under the present treaties, the EU does not enjoy sovereignty of its own.[10] On the contrary, the functioning of the EU is based upon the transfer of the exercise of sovereignty by the member states in a specific number of fields. Competences not conferred upon the Union remain with the Member States. Consequently, article 4, para 2, of the Treaty on European Union explicitly prescribes the EU to respect the national identities as well as the essential State functions of its Member States. This construction led the EU Court of Justice (ECJ) to the conclusion that, under international law, the EU is by its nature precluded from being regarded as a State. This finding is corroborated by the international state practice as exemplified through the diplomatic treatment of the EU by the organisation of the United Nations. Rather than recognising the EU as a sovereign State, the UN has attributed a special observer status to the EU, granting it the right to speak on behalf of its Member States at the General Assembly.[11]

A Union of democratic States

The British prime minister Johnson may pride himself for having made the greatest U-turn ever over the nature of the EU. As his reasons for this conversion were purely political, his motives for doing so were equally opportunistic. Before Brexit he depicted the EU in the starkest terms as a federal European SuperState, which denounced in a cultivated ‘patriotic’ tradition as the ‘Fourth Reich’; after Great Britain had withdrawn from the Union, he argued with the same bravado that the EU is no more than an organisation of states and that, consequently, its representative in the UK cannot be given full diplomatic status. Apparently, as prime minister the leader of the Tory Party does not seem to bother that he is contradicting himself.[12] Ironically, had the EU merely constituted an organisation of states, there would not have been any reason for the UK to leave!

From the outset, however, the predecessors of the EU have been construed as a special kind of organisation. Contrary to the Council of Europe, which was established in 1949 with a view to promote human rights, democracy and the rule of law in Europe,[13] the 1951 ECSC deviated from the norms of the Westphalian system of International Relations inasmuch as the member states agreed to share sovereignty in order to achieve their goal of preventing the renewed outbreak of war between them.[14] Once they had realised that they could organise perpetual peace by attributing the management of coal and steel to a higher authority, they decided to broaden the scope of their cooperation to the whole of the economy. In the preamble of the 1957 Treaty of Rome, which established the European Economic Community, they expressed their determination to establish an ever closer union among the peoples of Europe. The internal market, which was created in this way and to which the UK felt attracted, was not an end in itself, but formed part of a greater design. After the accession of Great Britain, Ireland and Denmark in 1973, the European Council described the Communities at its memorable summit of Copenhagen in the Declaration on European Identity as a ‘Union of democratic States’.[15] [16]

The EU as a democratic regional organisation

The special character of the predecessors of the EU as an organisation in between a federal state and a confederation has been acknowledged during an international conference about the ECSC, held in the Italian resort of Stresa in 1957.[17] In the absence of unanimity, the participants to the conference agreed to disagree and to present the first forerunner of the EU as a construction of its own kind or as an organisation ‘sui generis’. Over the decades, the number of own and specific characteristics of the new body have increased to such an extent that the question is warranted as to whether the new polity has not assumed such a concrete shape that it should be named with a distinctive term. The purpose of the present piece is to argue that it has, and that the EU can be identified in its current form with a new term as a ‘democratic regional organisation’.

In suggesting this term, the author realises that adherents of the prevailing Westphalian system of International Relations will reject it out of hand as an anomaly. The most essential feature of this system, which underlies the functioning of the Organisation of the United Nations, consists of the assumption that sovereignty must be one and indivisible.[18] In this approach, the very notion of statehood includes absolute sovereignty of the state.[19] The concepts of democracy and the rule of law can only come to fruition within the boundaries of a sovereign state, whereas the relations between states belong to the realm of diplomacy. It follows that an organisation of states is as a matter of principle unable to function in a democratic way. Consequently, a democratic regional organisation must be a contradiction in terms. So, a proposal to use the term in a meaningful way can only be made beyond the Westphalian system of International Relations.[20]

The theory of democratic integration

The theory of democratic integration (TDI) suggests that the determination to create an ever closer union among the peoples of Europe has resulted in the emergence of an entirely new kind of organisation with an innovative form of governance.[21] In its present form the EU is a Union of 27 States and 450 million Citizens, which works as a European democracy. In terms of international relations, the EU is the first-ever democratic regional organisation.[22] So, the EU has not imitated the example of another -past or contemporary- public international organisation but has created its own constitutional model as a democratic union of democratic states.

The evidence for this conclusion is provided by the origin and the subsequent development of the European polity. Its predecessors and the EU have been devised out of the will to end the perpetual circle of war, inherent to the Westphalian system of International Relations. The founding states broke with the principle of absolute sovereignty in order to achieve peace. Their decision constituted ‘a revolutionary breakthrough of the traditional pattern of international organisation’.[23] Although the European Communities appeared to be at first glance a regular organisation of states, its hallmark of shared sovereignty placed it from the outset beyond the prevailing Westphalian system.

Against this background, the aspiration to create an ever closer union among the peoples of Europe, expressed in the preamble to the 1957 Treaty of Rome, did not envisage a return to ‘Westphalia’ by the foundation of a federal European state. It should be viewed, instead, as a bold endeavour to develop a new set of norms for the relations between the states and peoples on the European continent. The Court of Justice of the European Communities gave this aspiration concrete dimensions by concluding in its famous verdicts of 1963 and 1964 that the member states had given their Communities an ‘autonomous legal order’ by transferring sovereignty in a number of fields, that the law of the Communities has direct effect and that, in case of conflict, Community law takes precedence over national regulations.[24]

The pursuit of ever closer union was given a new impetus by the decision of the European Council at the Copenhagen-summit of December 1973 to identify the Communities as a ‘Union of democratic States’. As the subsequent Declaration on Democracy, adopted in 1978 at a summit in -again- Copenhagen, shows, the implication of this self-identification is that the Union, which these democratic states share, should also be governed in a democratic manner. In theoretical terms it may be submitted that, if two or more democratic states agree to share the exercise of sovereignty in a number of fields in order to attain common goals, their organisation should be democratic too. The nine member states confirmed this hypothesis in practice by their initiative to change the character of the European Parliament from a consultative assembly to a directly elected parliament. So, after the identification of the Communities as a ‘Union of democratic States’, they wanted to give the body, representing the citizens of the member states, democratic legitimacy too. The first direct elections for the re-constituted European Parliament were held in the spring of 1979.[25]

EU Citizenship

A steep hurdle, that must be taken in the transition from a union of states to a democratic regional organisation, consists of the principle of unanimity. While the concept of confederal unions of states entails that each member state has the right to veto any decision, which it opposes, transnational democracy presupposes that member states can be bound against their will. On a practical level the principle of decision making by unanimity tends to result in long delays, if agreement is reached at all. While the latter consideration may have been more conducive than the former, the European Council took the first hurdle by introducing the practice of qualified majority voting (QMV) in a number of fields in the Single European Act of 1987.[26]

The road from union of states to democratic regional organisation may also be winding. The members of the European Council were certainly not driven by the desire to lay the foundations for a European democracy, when they gathered in December 1991 in Maastricht with a view to establish the EU. Their main concern was to complete the internal market and they regarded both the introduction of a single currency and the establishment of a citizenship of the Union as means to this end. In fact, the aim of the Heads of State and Government was to strengthen the status of their nationals, who had taken up employment in another member state of the Union.[27] Article B, third -, Title 1 of the original Treaty on European Union explicitly formulated the objective ‘to strengthen the protection of the rights and interests of the nationals of its Member States through the introduction of a citizenship of the Union’. The realisation, that citizenship is primarily an indispensable requirement for the functioning of a polity as a democracy, started to dawn upon the Council only after the Danish electorate had rejected the Maastricht Treaty out of fear that replacing national citizenship with a European status would ultimately result in the creation of a federal European state.[28] From then on, the Council stated, repeated and reaffirmed in every subsequent treaty that EU citizenship is additional to and does not replace national citizenship.[29]

EU Democracy

The 1997 Treaty of Amsterdam will be remembered both for its inclusion of the concept of democracy in the values of the EU proper and for the introduction of a procedure for ensuring continued respect for the values of the Union by the member states (current article 7 TEU).[30] Seen as a stage in the evolution of the European polity from an organisation ‘sui generis’ to a democratic regional organisation, the Amsterdam Treaty forms an essential step in the direction of the system of dual democracy, which has become the hallmark of the EU. In the EU, democracy is not merely a matter for or a prerogative of the member states, but also for the Union. It is exemplary for the evolutionary character of the EU that ‘Amsterdam’ did not change the EU overnight, but kept the momentum going by laying another brick for the foundation of a democracy at the level of the Union.

The slow but steady build-up of an EU democracy continued with the Charter of Fundamental Rights of the European Union. The idea for a Conference for the preparation of such an instrument was discussed and agreed upon at the 1999 summit of Cologne with a view to make the overriding importance and relevance of these rights more visible for the citizens. Thus, the Charter, which contains not merely civil and political, but also social and economic rights, was meant as a Magna Charta for the newly established citizens of the EU. It was drawn up in a year’s time and solemnly proclaimed at the 2000 summit of Nice. It obtained legal force only after the rejection of the so-called Constitution for Europe through its inclusion in the Lisbon Treaty. From that moment on, the new citizens were entitled to say with contemporary self-confidence: Civis Europaeus sum.[31] The theoretical implication of this momentous step forward was that the dual status of the EU citizens laid the basis for a system of dual democracy for the governance of the Union.

The introduction of the euro as the single currency of the EU, except for the member states which failed to meet the criteria for accession and those, which had secured an opt-out, contributed to a feeling of Euphoria, which superseded the euro-scepsis of the eighties towards the end of the millennium.[32] Thanks to a combination of proper brinkmanship and good fortune the introduction took partly place in the past (the fixing of exchange rates of the member states of the Economic and Monetary Union (EMU) on 1 January 1999) and partly in the new millennium (the introduction of coins and notes on 1 January 2002). The fact that the widely dreaded Millennium bug was neutralised in this manner, did not imply an easy ride for the new currency. After a fortuitous first decade the euro became the object of a fundamental struggle between the financial markets and the EU institutions concerning the nature of the euro.[33] Was it a currency without a state and therefore doomed to fail or could it be regarded as a currency beyond the state, which was supported by the EU institutions and the member states of the EMU as the ‘joint sovereign’ behind it?[34] The battle brought the euro and -indeed- the entire EU at the brink of collapse, but was decided in favour of the new currency, after the European Central Bank had put its full weight behind it. Both the EU and the EMU had to stand the test of international pressure before they could assert themselves as ‘correlated institutions beyond the State’.[35]

The rejection of the carefully prepared and pompously presented ‘Constitution for Europe’ by the voters in France and The Netherlands in 2005 may be regarded in hindsight as the first signal after the millennium change that all was not well in the European house. In a similar way as the Danish citizens had rejected the Maastricht Treaty in 1992 out of fear for the creation of a federal European state, the electorates of two founding member states distrusted the ‘Treaty establishing a Constitution for Europe’. From a communicational point of view the term ‘constitution’ was a misnomer as constitutions belong to the semantic domain of states. A referendum about the ‘Constitution for Europe’ could therefore easily be perceived as an invitation to endorse the creation of a federal state of Europe.[36]

Against this background the 2007 Lisbon Treaty, which was concluded in reaction to the ‘constitutional’ disaster, symbolises a major policy shift. The unique and unprecedented hallmark of the new treaty is that it construes the EU as a democracy without turning the Union into a state. Title II TEU contains the provisions on the democratic principles of the EU and ensures the democratic functioning of the Union.[37] These provisions are balanced by a robust structure of EU governance, in which the roles of the respective institutions of the Union are carefully described. Obviously, the EU is not endowed with a ‘Head of State’, but it has a number of political (European Council, Commission & Parliament) as well as a variety of independent (ECJ, ECB, Ombudsman) institutions, which enable it to function effectively as a Union of States and Citizens. It goes without saying that the construction of the EU as contained in the Lisbon Treaty is not infallible. It will need to be amended, improved and updated on a regular basis. ‘Brussels’ should not tremble by the mere thought of treaty change. On the contrary, if the EU wants to remain committed to its determination to create an ever closer union, it must aspire to function as a living European democracy, in which the citizens are encouraged to actively contribute to the well-being of their polity.

EU paradoxes

In its present form the EU is rife with paradoxes. The gentlest paradox is that the EU is not entitled to grant citizenship to foreign applicants, but that the European Council may give honorary citizenship of the Union to any person of its liking. The second place in the charts of internal contradictions is occupied by the slogan: Representation without taxation! While the inhabitants of the British colonies started the American Revolution under the battle cry: ‘No taxation without representation’, EU citizens enjoy representation at Union level without paying taxes to their Union.

A third perplexing and unexplainable paradox consists of the fact that article 10 TEU grants every EU citizen the right to participate in the political life of the Union, while the 1976 Elections Act prescribes that they have to vote at the elections for the European Parliament as citizens of their member states! Consequently, an EU citizen of German nationality is not allowed to cast her vote on a candidate of French nationality, while Flemish citizens in Belgium can’t even vote for a Walloon candidate! For the present author, however, the most striking EU paradox of the moment is that the EU wants to portray and promote itself as a European democracy but fails to identify itself as such. In reaction to the dismal meeting of the European Council of July 2019, the newly appointed Commission-Von der Leyen expressed the determination to give a new impetus to European democracy, while the French President Macron called for a Conference on the Future of Europe in order to sort out the underlying electoral problems.[38] Implementing Commission-priorities Commissioner Jourová submitted a European Democracy Action Plan (EDAP) in 2020 with a view to ‘empower citizens and to build more resilient democracies across Europe’.[39] However, the Commission has so far failed to explicate what it means with the term ‘our democracy’. The need to do so is not purely hypothetical or academic, but legally and politically urgent. In its ECB-verdict of 5 May 2020 the German Constitutional Court has denied the very possibility for the EU to function on a democratic footing, while the British Prime Minister argues time and again for all kinds of reasons that the EU is not democratic.[40] The urgency is accentuated from a theoretical point of view by the thesis of the Westphalian system that democracy presupposes a ‘demos’ (people/Volk) and can only thrive within the borders of a national state. So, it follows in the logic of this paradigm that transnational democracy amounts to a contradiction in terms! In line with this presumption scholars agree that the EU lacks a proper political theory.[41]

Contrary to reasonable expectation, however, the EU does not seem to make any effort whatsoever to refute the allegation that it cannot function on a democratic footing. To make matters even worse, the website of the EU, the Europa Server, continues to portray the EU in terms of an organisation of states by writing that it is ‘a unique economic and political union between 27 countries that together cover much of the continent’.[42] Obviously, addressing the major EU paradoxes described in this paragraph will require patience and time. The problem posed by the Europa Server is purely administrative and bureaucratic. So, if the Commission wants to demonstrate that it takes the Conference on the Future of Europe seriously, it should replace the current text about the nature of the EU with a description of the Union, in which the terms ‘citizens’ and ‘democracy’ are included, before the actual start of the Conference. In line with the argument of this essay, the present author suggests replacing the current characterisation with the following description:

The EU is a union of 27 states and 450 million citizens, which works as a European democracy.

Preliminary conclusion

The ancient Greek philosopher Aristotle has taught later generations the fundamental lesson that, if you want to determine the nature of a new, unknown creature or object, you should not look at the clouds in the hope to grasp the idea behind this phenomenon, but that you must analyse its distinctive characteristics in order to classify it. So far, political theorists and practitioners have indulged in the Platonian debate as to whether or not its predecessors and the EU were destined to become a federal state.[43] As both the European Communities nor the European Union could be classified as either a confederal union of states or an outright federal state, the two schools of thought settled for the compromise of referring to the EU as an ‘organisation sui generis’. Although the agreement to disagree had the advantage of underlining the unprecedented character of the EU, it left the Union vulnerable for attacks from various sides. While the anti-Europeans in the United Kingdom loathed the EU as a European superstate or as a ‘Fourth Reich, the federalists criticised the construction of the Lisbon Treaty as a surrogate democracy.[44] Caught in the crossfire, the EU was unable to defend its own democratic credentials.

The gist of the present essay is to overcome the stalemate in the Platonian debate about the nature of the European Union by describing and analysing the distinctive features of the EU as a public international organisation. Taking into account that traditional theories emphasise that the EU must either be a state or an organisation of states, it should be highlighted that, while the Union is not a state, it differs from other organisations of states inasmuch it is also composed of citizens.[45] In plain and simple terms: the EU is the only organisation of states in the world, which consists of citizens too. Although the Maastricht-status had a highly symbolic nature, the entry into force of the Charter of Fundamental Rights turned EU citizenship into a constituent element of the Union.

EU citizenship lays the basis for a second distinctive feature of the Union. Contrary to any other organisation of states the EU has a directly elected parliament. During its relatively short history the European Parliament has undergone a number of fundamental changes. It started as a Consultative Assembly, the members of which has been elected by the national parliaments of the member states. They had a double mandate. The 1976 Elections Act changed the character of the Assembly into a Parliament, the members of which were directly elected by the citizens of the member states, gathered in the Communities. Pursuant to the introduction of EU citizenship and the Charter of Fundamental Rights the 2007 Lisbon Treaty construes the European Parliament as the institution which represents the citizens at the level of the Union. Article 14, para 2, TEU simply says that the European Parliament shall be composed of representatives of the Union’s citizens.

The most important lesson, which other interested unions of states may draw from the European experience, is that citizenship of an international organisation is an indispensable requirement for that organisation to function as a transnational democracy.[46] The EU repudiates the principles of the Westphalian system and demonstrates by its very existence that the vicious circle of ever recurring war can be broken. Out of the will to prevent war a new kind of democracy has emerged in Europe. Obviously, Europe is not the only region in the world in which states have joined forces in order to attain common goals. There are many other regional organisations of states, such as the African Union, MERCOSUR, the Arab League and ASEAN. They enjoy observer status at the UN and they may be authorised by the Security Council to engage in peacekeeping operations in their region. However, the EU is the only regional organisation in the world, which functions as a transnational democracy. Seventy years after the start of the experiment with shared sovereignty the EU has established itself as a new kind of organisation (a Union of States and Citizens) with an innovative form of governance (transnational democracy).

The present analysis warrants the preliminary conclusion that the Lisbon Treaty allows for the EU to be described in terms of international law as a ‘democratic regional organisation’. It is the first specimen of a new kind of organisation and may serve as an inspiration for other regional organisations with democratic ambitions. Seen in the tradition of Immanuel Kant, who suggested towards the end of the 18th century that states wishing to establish perpetual peace might either form a federal state or a confederation of free states, the EU has brought about an innovation, which may be highly beneficial for the present system of world governance.[47] It establishes the missing link between the individual states on the European continent and the United Nations.[48] In order to do so in a meaningful way, however, the EU should first abolish the right of veto in the field of foreign affairs and replace it with a system of decision making with qualified majorities. After all, the EU cannot act on the global stage as a traditional confederation, while it is and intends to be a democratic regional organisation!

Ongoing evolution

The evolution of the EU has not come to a halt after the entry into force of the Lisbon Treaty in December 2009. On the contrary, Lisbon has given fresh impulses and new dynamics to the aspiration to create an ever closer union. In a number of ground-breaking verdicts, the EU Court of Justice charted the legal consequences of the transition of the nationals of the Member States to full-fledged EU citizens. It established that EU citizenship is their fundamental status and superseded the anachronistic paradox that they had to cross borders in order to activate their European rights (cross-border link).[49] The ECJ clarified the scope of the term ‘fundamental status’ by ruling in the Zambrano-case that EU law precludes national measures, which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status of citizens of the Union.[50] The principle of article 9 TEU that EU citizenship is additional to the national status was subsequently confirmed in the judgment in the case Pelckmans Turnhout, in which the Court considered that ‘member states are only required to respect fundamental rights defined in the context of the Union, when they act in the scope of Union law’.[51] So, the ECJ underlines in its jurisprudence that the dual character of the construction of the EU is not only essential for the status of its citizens, but also for its legal system.

In the monetary field, the success of the common effort to maintain the euro as the single currency of the Union provided solid evidence for the foundational thesis of the EU that it is possible for states to share the exercise of sovereignty without losing statehood. The announcement of ECB president Draghi in 2012 that he would do whatever it takes to save the euro and the subsequent reaction of the markets formed a clear and convincing demonstration of joint sovereignty. As similar developments took place in other fields of exclusive EU competences, such as the internal market and international trade, politicians floated the term ‘European sovereignty’. The fact, that the French President Macron introduced the concept ‘souveraineté Européenne’ in his Initiative pour l’ Europe of 2017 implied both a significant deviation from De Gaulle’s vision of a Europe of Nation-States and a great leap forward to the creation of an ever closer union among the peoples of Europe.[52]

Seen in isolation, these separate developments seem hard to explain. From the conceptual point of view, however, each of them forms an indispensable brick in the construction of the new kind of organisation, which the EU aspires to be. Obviously, President Macron’s views on European sovereignty did not form part of the deliberations in the two cases, which were decided upon by the ECJ on 19 December 2019.[53] Yet, these verdicts fit perfectly well in the build-up to a democratic EU polity. The gist of these judgments is that the EU has an autonomous democracy, the functioning of which must be facilitated and respected by the Member States. In plain terms, the Member States have to retain from certain actions, which -although entirely in line with national laws and regulations- have the effect of undermining the EU democracy.

At this juncture, three observations must be made. The first one is that the transfer of the exercise of sovereignty has initially led to the emergence of an autonomous legal order and half a century later to that of an autonomous democracy at Union level.[54] This finding corresponds entirely with Macron’s suggestion concerning European sovereignty. The essence of the construction of the EU polity is that sovereignty exercised at a certain level must be democratically controlled at the corresponding level. As the second sentence of article 1 TEU highlights, decisions in the European Union are taken as openly as possible and as closely as possible to the citizen. Thirdly, the ECJ judgments of 19 December 2019 make it possible to identify the nature of the EU in a consistent and transparent manner. Taking into account that the European Council described the Communities in 1973 as a Union of democratic States and having regard to the conclusion of the ECJ that the EU has an autonomous democracy, the EU may be identified in its current form as a ‘democratic Union of democratic States’.

The latest but not the least brick of the European house-in-construction consists of the rule of law-mechanism, which has been discussed and introduced in the context of the fight against the corona pandemic.[55] The essence of the new mechanism is that it links the grant of EU subsidies to Member States to their respect for the values of the EU, including the values of the rule of law and democracy. Although critics on the left side of the political spectre denounce the rule of law mechanism as ‘toothless’, it has the potential ‘to bite’ once the institutions have learned how to handle it.[56] From the theoretical point of view, it deepens the constitutional character of the EU polity inasmuch as it emphasises that the values of democracy and the rule of law must be respected both by the EU and by its Member States. Thanks to the new mechanism the definition of the EU in its current form may be extended as follows: The EU is a Union of democratic States, based on the rule of law, which also functions as a constitutional democracy of its own.

Seen from the conceptual angle, the introduction of the rule of law mechanism forms the sharpest rupture so far from the Westphalian system of International Relations. The new mechanism is incompatible with the traditional approach as it would constitute an intolerable interference in the internal affairs of a sovereign state. Indeed, some of the member states, likely to be affected by the measure, notably Hungary and Poland, have already raised this objection. So, the rule of law mechanism points to the emergence of a new model of governance for the EU. The new model, which may be described as the European Model of Transnational Governance, is based on the practice of shared sovereignty and is characterised by a system of external rather than national borders, by common rather than national customs, by an internal market and a single currency and by dual systems of citizenship, constitutionality and democracy.[57]

The Conference on the Future of Europe

Although it was triggered by a most unfortunate series of incidents and despite the fact that the start was delayed for a year by the corona-pandemic, the Conference on the Future of Europe offers an excellent opportunity for the EU to stop behaving like an ostrich, to pull its head out the sand and to take stock of the turbulent developments of the past decades. The present conference is not the first of its kind, but stands in the tradition of the Commission-Adonnino, which advised the Commission in 1984 about the place of the citizens of the member states in the construction of the then Communities.[58] In a comparable way, the Conference will have to analyse and improve the position of the EU citizens in the present Union. The implications of this effort should not be underestimated. While the nationals of the member states were merely entitled to benefit from the arrangements between the participating states concerning the internal market and could therefore be characterised as ‘market people’, the EU citizens enjoy a full status as citizens of the Union. ‘Civis Europaeus sum!’ It should not be overlooked therefore that the present Conference was caused by the continuing confusion about the status of the citizens in the Union. According to Title II of the Lisbon Treaty the citizens are entitled to participate in the political life of the Union, but the 1976 Election Act prescribes that they have to cast their ballot in the elections for the European Parliament as nationals of the Member States! As a result of this ambivalence in the construction of the Union, the members of the newly elected EP argued after the 2019 EP elections that the citizens had expressed their preferences for the new President of the European Commission, while the European Council regarded the nomination of that official as its own prerogative! Seen against this background, the first and primordial task of the Conference will be to ensure that the EU citizens will be able to go to the polls and to cast their vote in 2024 as citizens of the Union!

Simultaneously, the participants and stakeholders in the Conference should resist the temptation to frame it as yet another round in the fruitless and outdated debate between the federalists and the intergovernmentalists. Political theorists and practical politicians should not merely indulge in visions of what the EU ought to be. At seventy, the EU should finally be able to say what it is. In this connection, it would be a mistake to suggest that the EU is or resembles a traditional ‘Empire’, as romantic philosophers and politicians prefer to do.[59] The hallmark par excellence of empires is that the sovereignty of the realm is personified by the Emperor. There is no such dignitary or institution in the EU! Moreover, empires tend to be imperial and to attack or suppress other peoples and countries with military means. Consequently, the suggestion that Europe should reinvent the ‘sacrum imperium’ in one way or another, should not be a guiding principle for the Conference.[60]

Instead, the Conference should have the courage to appreciate the original character of the EU. The European polity does not imitate the United States of America and it is also not a replica of one of the member states of the Union. So, names likes the ‘Federal Republic of Europe’ or ‘Conféderation Européenne’ will be equally misleading.[61] As a young organisation the EU forms part of the system of global governance of the United Nations. The EU is not and does not pretend to be a state. However, because the EU is also composed of citizens and functions on a democratic footing, it is neither a mere organisation of states. From the viewpoint of global governance, the innovative character of the EU may therefore be accounted for by the description of the Union as a democratic regional organisation.

The fact that the EU has evolved from an organisation sui generis to a democratic regional organisation is mirrored by the internal development of the Union. The theory of democratic integration suggests that the ‘Union of democratic States’ of 1973 has evolved via various stages in almost half a century to a democratic Union of democratic States. Europeans may pride themselves for breaking the seemingly inevitable circle of perpetual war by creating a new model of governance for their continent, known as the European Model of Transnational Governance.

Since the novelty of the European experiment lies in the inclusion of the citizens in the construction of the European Union, the EU may be described in technical terms as a ‘Union of States and Citizens’. The corresponding form of governance, which the EU has established over the decades, is that of a transnational democracy. The EU may therefore present itself to its citizens, its member states and the world at large in political terms as a ‘Union of States and Citizens, which works as a European democracy’.

The circumstance that the EU has reached its constitutional haven as a democratic Union of democratic states does not imply that the present construction should be perfect. On the contrary, the EU is not a Hegelian construct, which must be glorified as the ultimate manifestation of some world spirit. The Conference will be well-advised to realise that the era of European democracy has only just begun.[62] New initiatives such as European Citizenship Education should be undertaken as a matter of urgency.[63] If the EU wants to play a responsible role at the global stage, it must introduce qualified majority voting in Foreign Affairs without delay.[64] During the Conference many other useful suggestions will be floated. The overriding concerns of the Conference from the conceptual point of view should be to identify the European Union as a Union of States and Citizens, to fix the electoral system of the EU, to improve the efficiency in foreign affairs and to underpin the democratic functioning of the Union with a proper political philosophy. In short, the Conference on the Future of Europe should finalise the evolution of the EU to a democratic regional organisation.

 

Notes

[1] F. Berger, The New Rule of Law Mechanism: “Ideological Blackmail Tool” or Legitimate Means to Protect the EU’s Values?, International Law Blog, 15 December 2020, www.internationallaw.blog

[2] K. Perocevic, European Union Legal Nature: EU as Sui Generis- A Platypus-Like Society, www.researchgate.net/publication 322727944 of December 2017

[3] J. Hoeksma, Nature EU established beyond doubt, Peace Palace Library Blog, 26 August 2020, www.ppl.nl

[4] M. Burgess, Comparative Federalism, Theory and Practice, London 2006

[5] J. Fischer, Vom Staatenverbund zur Föderation, Berlin 2000

[6] G. Verhofstadt, The United States of Europe, London 2006

[7] EUObserver, 22 December 2020

[8] D. Hannan, The EU is a State and we should treat it as such. That’s precisely why we left, The Telegraph, 24 January 2021

[9] For a proper analysis of the relevance of the Montevideo Convention on the Rights and Duties of States, see: W. van Gerven, The European Union: a polity of states and peoples, Stanford 2005

[10] P.H. Kooijmans, Internationaal publiekrecht, Deventer 2008

[11] UNGA, Resolution 65/276 of 3 May 2011

[12] Against the background of this opportunistic behaviour of PM Johnson and his Brexiteer-government, the hope that ‘good old British common’ will return to the foreign policy of the UK, may prove to be too optimistic. Animosity with/against the EU will remain the distinctive hallmark of Brexiteer-policies. See  https://eeas.europa.eu/headquarters/headquarters-homepage/92345/after-brexit-how-can-eu-and-uk-best-cooperate-foreign-policy_en

[13] www.coe.int

[14] C.W.A. Timmermans, Genesis and Development of the European Communities, in Kapteyn & VerLoren van Themaat, The Law of the European Union and the European Communities, Alphen aan den Rijn 2008

[15] EC-Bulletin 12-1973

[16] The increasing relevance of the Communities at the global stage was highlighted by the unannounced arrival of a delegation of the Arab League at the summit. As documented in EC-Bulletin 12-1973, paragraph 1104

[17] J. Hoeksma, De EU als Unie van Burgers en Lidstaten, Deventer 2009

[18] R. Cooper, The Breaking of Nations. Order and Chaos in the Twenty-first Century, London 2003. See also: L.J. Brinkhorst, Europese Unie en nationale soevereiniteit, Leiden 2008

[19] T. Baudet, The Significance of Borders, Leiden 2012

[20] M. Teló, Regionalism and Global Governance, in: S. Fabbrini and S. Marchetti, Still a Western World? Continuity and Change in Global Order, Routledge 2017

[21] J. Hoeksma, The Theory of Democratic Integration, Oisterwijk 2018

[22] While the Council of Europe was founded in 1949 with a view to promote democracy and the rule of law, the organisation has no democratic aspirations of its own. It follows the traditional pattern of international organisations by having a Committee of Ministers, a Secretariat-General and a Parliamentary Assembly.

[23] P.J.G. Kapteyn, Het ontstaan van de Europese Gemeenschappen, in Kapteyn & VerLoren van Themaat, Inleiding in het recht van de Europese Gemeenschappen, Deventer 1970

[24] Cases Van Gend en Loos, ECLI:EU:C:1963:1 and Costa-E.N.E.L., ECLI:EU:C:1964:66

[25] H. Nord, Europe, a parliamentary democracy, in: H. Brugmans (ed), Europe, Dream-Adventure-Reality, Brussels 1987

[26] For a critical evaluation see J.H.H. Weiler, The Transformation of Europe, Yale Law Journal 1991, Vol 100, nr 8

[27] J. Cloos, Le traité de Maastricht, Bruxelles 1994

[28] J. Hoeksma, The Case BundesVerfassungsGericht versus EU Court of Justice, Oisterwijk 2020

[29] Article 9, Treaty on European Union

[30] Yet, the Standing Committee of experts in international immigration, refugee and criminal law preferred to overlook this crucial development in its publication Democracy, migrants and police in the European Union, The 1996 IGC and Beyond

[31] K. Lenaerts, ‘Civis Europaeus Sum’: From the Cross-border Link to the Status of Citizen of the Union, in: Constitutionalising the EU judicial system, Cardonnel, Rosas & Wahl, Oxford 2012

[32] G. Mak, In Europa, Amsterdam 2004

[33] H. van Rompuy, Europa in de storm, Leuven 2014

[34] J. Hoeksma and D. Schoenmaker, A polity called EU, Oisterwijk 2011

[35] J. Hoeksma, The EU and EMU as correlated institutions beyond the State, ESCB Legal Conference, ECB 2017

[36] H. van der Kolk en K. Aarts, Opkomst en uitslag, in idem (red), Nederlanders en Europa. Het referendum over de Europese Grondwet, Amsterdam 2005

[37] A. von Bogdandy, The European Lesson for International Democracy, The Significance of Articles 9-12 EU Treaty for International Organisations, The European Journal of International Law, Vol 23, nr 2

[38] www.ec.europa.eu/info/strategy/priorities/-2019-2024/new-push-european-democracy

[39] www.ec.europa.eu/info/strategy/priorities/-2019-2024/new-push-european-democracy/european-democracy-action-plan_en

[40] BundesVerfassungsGericht, Urteil des Zweiten Senats vom 05 Mai 2020, 2BvR 859/15

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

[42] www.ec.europa.eu/european-union/about-eu/eu-in-brief_en

[43] P. Magnette, What is the European Union?, London 2005

[44] B. Molenaar, Opgepast, Herman bepleit een Nepdemocratie!, www.europesebeweging.nl, 18 juni 2013

[45] J. Hoeksma, Naming and Defining the EU, in: idem: De EU als Unie van burgers en lidstaten, Deventer 2009

[46] A. von Bogdandy, supra note 34

[47] I. Kant, Zum Ewigen Frieden, Königsbergen 1796

[48] P. Sloterdijk, Falls Europa erwacht, Frankfurt qm Main 1994

[49] Case Grzelczyk, ECLI:EU:C:2001:458

[50] Case Ruiz Zambrano, ECLI:EU:C:2011:124

[51] Case Pelckmans Turnhout, ECLI:EU:C:2014:304

[52] E. Macron, Initiative pour l’Europe, Paris 2017

[53] Cases Puppinck and others ECLI:EU:C:2019:1113 and Junqueras Vies ECLI:EU:C:2019:1115

[54] Cf K. Buitenweg, The European Parliament’s Quest for Representative Autonomy, Den Haag 2016

[55] An EU mechanism on democracy, the rule of law and fundamental rights, European Parliament Think Tank 30 September 2020

[56] See for example blogs on www.verfassungsblog.de

[57] Extensively in: J. Hoeksma, supra note 17

[58] L. vandenBrande, Reaching out to EU Citizens, Brussels 2017

[59] Recently: J. Zielonka, Europe as Empire, Oxford 2007 and C. de Gruyter, Beter wordt het niet, Amsterdam 2021

[60] P. Sloterdijk, supra note 44

[61] U. Guérot, Warum Europa eine Republik werden muss, München 2016

[62] The EU and the Member States may well benefit from the knowledge and experience of the Venice Commission of the Council of Europe by submitting a request for an Opinion about the democratic shortcomings and prospects of the EU as a Union of States and Citizens.

[63] S. Pornschlegel and S. Zels, Safeguarding European Values: The Case for a European Agency  for Citizenship Education, Brussels 2020. For a solid theoretical foundation, see: K. Grimonprez, The EU Dimension in the Education for European Citizenship, a Legal Analysis, Luxembourg 2018.

[64] See for a practical proposal: J. Borrell Fontelles, https://eeas.europa.eu/headquarters/headquarters-homepage/86276/when-member-states-are-divided-how-do-we-ensure-europe-able-act_en