Guest blog by Jaap Hoeksma, Philosopher of Law, Director of Euroknow and Creator of the Boardgame Eurocracy.
For decades, the debate about the future of the European Union has been dominated by the dilemma whether the EU was to become a federal state or should establish itself as a union of states. After the entry into force of the Lisbon Treaty, however, it may be suggested that the deadlock in the debate about the finalité politique has been broken. The gist of this blog is to argue that the Lisbon Treaty construes the EU as a democracy without turning the Union into a state. This conclusion can be underpinned as follows. Article 4 TEU ensures that the EU will not develop into a federal state as it stipulates that the Union shall respect the national identities as well as the essential State functions of the Member States. However, the EU has neither remained a confederation of states. It is also composed of citizens and has a directly elected parliament, Consequently, the EU is neither a state nor a union of states, but rather constitutes a new phenomenon of statehood and international law, which can no longer be explained in the traditional Westphalian categories of states and unions of states.
The list of reasons against EU statehood can be easily augmented. The fact that the Union is not competent to grant EU citizenship to foreign applicants ranks high among these arguments. In fact, the evidence is so overwhelming that it may be suggested that the EU has no intention of becoming a state either. Despite the initial visions of the federalists another development has taken place. During the first fifty years of its existence the EU and its predecessors have been experimenting with the transfer of a part of their sovereignty to a common authority. According to the traditional Westphalian paradigm of international relations this is an anomaly. In this approach sovereignty is one and indivisible. In order to function in the system of international relations states must be sovereign. Actually, to the extent that, without sovereignty, there is no state.
Against that background the Dutch author Jos Kapteyn qualified the initiative of the six member states of the ECSC to transfer the exercise of sovereignty to a higher authority, albeit in a limited field and for a limited period of time, as a ‘revolutionary breakthrough in the classic pattern of international organisation’. The six founding states continued and deepened their experiment and were joined over the years by more than twenty other states. Although it may be too early to judge whether the EU forms a successful experiment, the Union has proven beyond doubt that it is possible for the exercise of sovereignty to be shared. In his report ‘Towards a genuine Economic and Monetary Union, submitted to the European Council on 26 June 2012, President van Rompuy speaks without any reservation whatsoever about ‘the joint exercise of sovereignty for common policies’.
The second novelty, which is being tested in the framework of the EU, consists of establishing democratic control over the jointly exercised sovereignty. Whereas the European Communities essentially remained a union of democratic states, the EU also aspires to be a democracy of its own. To this end, the 1992 Maastricht Treaty introduced the citizenship of the Union. Moreover, the Treaty of Amsterdam (1997) included democracy in the core values of the EU. Third, title II of the Lisbon Treaty contains an impressive number of provisions on the democratic principles of the EU. Of course, it remains a matter of debate whether the EU succeeds in this endeavour. It may be suggested, however, that the construction of the EU as a democratic polity of 27 states and 500 million citizens in itself warrants the conclusion that the EU has outgrown the Westphalian system of international relations and that the Union has emerged as a post-Westphalian polity. This has not occurred in one big Spinellian bang, but rather in two subsequent steps. The second revolutionary breakthrough of the EU in the classic pattern of international relations is that the Union applies essential principles of democracy and the rule of law to an international organisation. Consequently, the EU may be described in post-Westphalian terms as a union of democratic states based on the rule of law, which also constitutes a law-based democracy of its own.