As common democracy the EU forms a union of democratic states based on the rule of law, which also constitutes a law-based democracy of its own.

Guest blog by Jaap Hoeksma, Philosopher of Law, Director of Euroknow and Creator of the Boardgame Eurocracy.

It seems almost beyond academic interest to observe that it is not feasible to develop scientific terms for phenomena which no one can imagine. At the start of the previous century, hardly any philosopher of public law or political theorist would have challenged the concept of Europe as a continent of sovereign states. While some of these countries were governed in a democratic manner, others were ruled by emperors, dictators or plain generals. According to the prevailing theory of international relations, the European states had to refrain from interfering in each other’s affairs and from undermining the sovereignty of another state. At the same time, war was regarded as a legitimate means of solving conflicts. From a purely theoretical perspective, it should therefore not have come as a surprise that the system culminated in two world wars which left Europe in ruins.

The measures taken by the United Nations in order to ‘save succeeding generations from the scourge of war’, were intended to curb the absolute power of sovereign states, notably their almost unlimited freedom to wage war. In addition to the promotion of human rights, the Council of Europe also set itself the task of furthering democracy. Contrary to the founding states of the European Communities, however, the Council of Europe did not question the concept of indivisible sovereignty as such. The impressive record of achievements of the Council demonstrates that it perceives the concept of democracy purely as ‘national’ democracy. This principle appears to be so self-evident that it needs no further explanation. The term democracy is exclusively related to states. Hence, any democracy must necessarily be a statal democracy.

According to the Dutch historian Johan Huizinga, Europe had to learn a more profound lesson from its devastating wars. In an essay, conceived in internal exile and published after his death in 1945, Huizinga argued that the major mistake of the peacemakers of 1919 was their failure to address the root cause of the unrestricted and absolute national sovereignty of European states. Like many contemporary intellectuals and politicians he favoured a federative approach to Europe’s post-war problems. Their plea was heeded by the six states which founded the European Coal and Steel Community in 1951. The purpose of these states was to prevent war by organising common control over the raw materials required for the conduct of war. To this end, they transferred the exercise of parts of their sovereignty to a higher authority which they established between them. In doing so, the member states not only managed to make the renewed outbreak of war practically impossible, but also created a common market for coal and steel.

In the preamble to the 1957 Treaty of Rome, by which the common market was broadened to the entire economy, the six emphasized their determination to lay the foundations for an ever closer union between the peoples of Europe. Although the governments of the day fostered different views on the question as to whether that goal would eventually lead to the creation of a federal European state or to a union of nation-states, it slowly started to dawn that the process of European integration might also result in the emergence of a new kind of public organisation. In its landmark judgement in the case of Van Gend & Loos, the Court of Justice ruled in 1963 that the European Economic Communities not only formed a common market, but also constituted a common legal order. It took the Luxembourgian lawyer Pierre Pescatore more than 10 years to come up with the suggestion that the European Communities should be regarded as a new phenomenon in international relations (Leyden 1974).

The originality of the European Union was epitomised by the 1992 Maastricht Treaty, which introduced both a common citizenship and a common currency of the Union. Consequently, the EU has been founded as the first international organisation which has citizens and disposes of its own currency. From a conceptual point of view, the main difference between the two is that the currency of the Union replaces that of its member states, whereas EU citizenship is additional to national citizenship. Although EU citizenship was initially derided by some as ‘a pie in the sky’, it was described by the EU Court of Justice in 2001 as the fundamental status of nationals of the Member States’. This view has been corroborated by the inclusion of the Charter of the Fundamental Rights of the EU in the Lisbon Treaty of 2007. Moreover, the new treaty treats EU citizenship as an indispensable requirement for the functioning of the EU as a representative democracy. Seen in this perspective, common citizenship forms a precondition for the transformation of the Union from an international organisation into a common democracy.

The concept of common democracy implies that the polity concerned has to meet stringent criteria of democracy and the rule of law both on the level of the member states and on that of the Union. While title II of the Treaty on European Union contains detailed provisions on the democratic principles of the Union, article 7 TEU stipulates that certain rights of a member state may be suspended, if there is a serious breach of the values of the Union. As a result of this construction, it has become feasible to describe the EU as a union of democratic states based on the rule of law, which also constitutes a law-based democracy of its own.

The circumstance that the EU can be characterised in these terms, exemplifies that the Union has outgrown the prevailing Westphalian system of international relations. In that system, which has dominated political thinking for over three centuries, the concepts of democracy and the rule of law were exclusively related to national states. Although it could not have been foreseen at the start, the process of European integration has resulted over half a century in the emergence of a common democracy, based on the rule of law. In the process, the EU has overcome the paralyzing stalemate in the discussion about the end goal or finalité politique of the Union. Consequently, the need for political leaders to call for either the creation of a federal state or for the return to a union of states has ceased to exist. Instead of focusing on problems of the past, they may now turn to the huge tasks ahead. As a young democracy the EU urgently needs to strengthen its legitimacy and accountability. The transition from a traditional union of nation states to a polity of citizens and member states requires a fundamental adjustment of governance structures. The primordial challenge for the coming decades is therefore to address the democratic deficit and to turn the EU into a living democracy.

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