Guest blog by Jaap Hoeksma, Philosopher of Law, Director of Euroknow and Creator of the Boardgame Eurocracy. Hoeksma is author of the EU-monograph: From Common Market to Common Democracy, lendable at the library.
'Nous ne coalisons pas des Etats, nous unissons des hommes'(1).
Although EU citizenship has become one of the most distinctive symbols of the European Union since its foundation in 1992, the majority of UK voters have decided to leave the EU and to relinquish their rights as citizens of the Union. As discontent in other member states is growing too, the European Council should shed new light on the relation between the EU and its citizens through the adoption of a Citizens' Declaration at its earliest opportunity.
From the outset, the debate about the nature of the EU has been dominated by the dilemma as to whether the Union should evolve towards a sovereign State of Europe or form a Europe of sovereign States(2). Citizens, however, are not particularly interested in this sort of theoretical discussions. They want to conduct their lives in democratic surroundings, both at home and in the Union. Considering that democracy and respect for the rule of law are quintessential preconditions for membership of the EU, they argue that the Union should meet similar criteria as its member states. From this angle, it seems obvious that, if two or more democratic states decide to share the exercise of sovereignty in a number of fields with a view to attain common goals, the organisation they establish for this purpose should be democratic too(3).
In its reaction to the first referendum in Denmark about the Maastricht Treaty, the European Council has emphasized that EU citizenship does not replace national citizenship, but rather complements the national status. Article 9 of the Treaty of Lisbon confirms this position by stipulating that 'citizenship of the Union shall be additional to and not replace national citizenship'. Although this provision is meant to allay fears that the EU will evolve towards a federal state of Europe and although article 4 TEU underpins this intention, the supporters of a unilateral withdrawal of the United Kingdom from the Union have succeeded in portraying the EU as a European Super State. The European Council should therefore underline that it has no intentions whatsoever to transform the EU into a sovereign State of Europe and should unequivocally endorse the finding of the EU Court of Justice that 'the EU is, under international law, by its very nature precluded from being regarded as a State'(4).
The Courts' conclusion demonstrates that the debate about the end goal or finalité politique of the EU is beside the point. Since the introduction of EU citizenship, the question is no longer whether the EU should form a federal state or a free trade area. Instead, the question is rather whether the EU can function in a democratic manner. According to the sovereignists, the answer is bound to be negative. They stress that it is theoretically impossible for international organisations to have citizens, a directly elected parliament and a single currency. Although these qualities are in reality essential for the EU, the Union has failed so far to adapt its theory to its practices. In consequence, the EU cannot say what it is and where it is heading. The purpose of this contribution is to suggest that, if the EU wants to convince its citizens of the benefits and the necessity of EU citizenship, the Union will have to replace the traditional paradigm of states and diplomats with the civic perspective of democracy and the rule of law.
From this angle, it becomes entirely feasible to cast fresh light on the relation between the EU and its citizens. The new narrative can start with the suggestion that the EU and its predecessors have brought about two major innovations in the fields of international relations and governance. The desire to prevent a renewed outbreak of war between them, induced the participants in the European Community for Coal and Steel, founded in 1952, to start an experiment in sharing the exercise of sovereignty in a limited field for a limited period of time. This pooling of sovereignty proved to be so successful that it was broadened to the whole of the economy through the creation of the European Economic Community in 1957. While these bold activities brought peace and prosperity to the war-torn nations, they failed in connecting the citizens of the member states to the Communities. Despite the fact that direct elections for the European Parliament were introduced in 1979, 'Europe' became notorious for its democratic deficit.
In hindsight, the introduction of EU citizenship in 1992 may be regarded as an indispensable step in the endeavour to establish democratic control over the decisions taken by the Commission in its exercise of pooled sovereignty. The 1997 Treaty of Amsterdam included the concepts of democracy and the rule of law in the core values of the EU proper, while the preamble of the Charter of Fundamental Rights of the EU stated in an almost self-evident manner that 'the European Union is based on the principles of democracy and the rule of law'. Mandated by the citizens of the EU(5), the European Parliament performs the role of controlling the executive at the European level. It may therefore be concluded that the EU has developed in such a manner that, as a matter of principle, the Union is capable of meeting similar criteria of democracy and the rule of law as its member states.
Despite these achievements, populists and sovereignists continue to argue that it is impossible for the EU to function in a democratic manner. In their perception, the concepts of democracy and the rule of law can only flourish within the borders of a sovereign state. Their alternative for the so-called democratic deficit of the EU is to abolish European democracy alltogether. They envisage a return to the 19th century concept of the Concert of Nations, in which each state enjoyed absolute sovereignty, including the right to declare and wage war(6). Moreover, by principally rejecting the idea of shared sovereignty, they deprive Europe of the possibility to take responsibility at the global stage and to defend the interests of its citizens and member states at the level of the United Nations. In short, their proposals are a recipe for a disastrous return to the past.
Instead of throwing its achievements away, the EU should develop a communication strategy from the perspective of the citizens. It should enable itself to counter the populists' arguments by advancing the view that Europe and democracy are two entwined concepts. Over the years, the EU has evolved into a new kind of international polity with a distinct model of democratic governance. Consequently, EU citizenship is an asset rather than an impediment for the citizens of the member states. EU citizens are not only entitled to participate in the national democracies of their countries, but also in the common democracy of the Union.
Obviously, the European Union is not a guarantee against the evils of the world. It is a political construction, which is meant to prepare its member states and its citizens for the 21st century. In the past, it has brought peace and prosperity and, at present, it increasingly functions as a European democracy. The European Council should therefore take the initiative to restore popular confidence in the EU by preparing a Declaration on EU Citizenship during its forthcoming informal meeting in Bratislava. With a slight variation on the creed of William of Orange the Council could start by asserting that the member states and the citizens do not exist in order to serve the EU, but that the Union has been created for the benefit of its citizens and its member states.[number of readers: 776]
1 Jean Monnet 30 April 1952, www.ajmonnet.eu
2 P.J.G. Kapteyn, Inleiding in het recht van de Europese Gemeenschappen, Deventer 1970.
3 Jaap Hoeksma, From Common Market to Common Democracy, Oisterwijk 2016.
4 Opinion 2/13 of 18 December 2014
5 This assumption still requires the introduction of transnational lists at EP-elections.
6 T. Baudet, The Significance of Borders, Leiden 2012.
A selection of relevant publications from the Peace Palace Library collection
- Beale, K., "The United Kingdom without the Charter of Fundamental Rights of the European Union: Putting Down the Dog that Did not Bark", in Birkinshaw, P.J. and Biondi, A. (eds.), Britain Alone!: The Implications and Consequences of United Kingdom Exit from the EU, Alphen aan den Rijn, Wolters Kluwer, 2016, pp. 257-290.
- Birkinshaw, P.J. and A. Biondi, (eds.), Britain Alone!: The Implications and Consequences of United Kingdom Exit from the EU, Alphen aan den Rijn, Wolters Kluwer, 2016.
- Birkinshaw P. J. and M. Varney, "Britain Alone Constitutionally: Brexit and Restitutio in Integrum", in Birkinshaw, P.J. and Biondi, A. (eds.), Britain alone!: the implications and consequences of United Kingdom exit from the EU, Alphen aan den Rijn: Wolters Kluwer, 2016, pp 13-37.
- Denman, D., "The EU's External Relations: a Question of Competence", in Birkinshaw, P.J. and Biondi, A. (eds.), Britain alone!: the implications and consequences of United Kingdom exit from the EU, Alphen aan den Rijn, Wolters Kluwer, 2016, pp. 159-164.
- Hadjiyianni, I., "The UK and the World: Environmental Law", in Birkinshaw, P.J. and Biondi, A. (eds.), Britain alone!: the implications and consequences of United Kingdom exit from the EU, Alphen aan den Rijn, Wolters Kluwer, 2016, pp. 139-158.
- Kendrick, M., "Judicial Protection and the UK's Opt-Outs: is Britain alone in the CJEU?", in Birkinshaw, P.J. and Biondi, A. (eds.), Britain alone!: the implications and consequences of United Kingdom exit from the EU, Alphen aan den Rijn, Wolters Kluwer, 2016, pp. 165-182.
- Komninos, A., Brexit and Competition Law, Kluwer Competition Law Blog, May 20, 2016.
- Lang, A.T.F., The Consequences of Brexit: Some Complications From International Law, London, London School of Economics and Political Science, LSE, 2014.
- Piris, J., "Which Options would be available for the United Kingdom in the Case of a Withdrawal from the EU?", in Birkinshaw, P.J. and Biondi, A. (eds.), Britain alone!: the implications and consequences of United Kingdom exit from the EU, Alphen aan den Rijn, Wolters Kluwer, 2016, pp. 111-137.
- Spencer, J.R., "Criminal Law", in Birkinshaw, P.J. and Biondi, A. (eds.), Britain alone!: the implications and consequences of United Kingdom exit from the EU, Alphen aan den Rijn, Wolters Kluwer, 2016, pp. 183-197.