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.
The debate about the future of Europe has been deadlocked ever since the start of the process of European integration in the midst of the 20th century. According to one school of thought the process had to result in the emergence of a federal State of Europe, while another theory held that the participating states should aspire to form a Europe of Nation States or a Europe des Patries. Both theories underlined that there were no other options available. The present blog aims to demonstrate that both theories are outdated and have to be replaced.
The need for a Copernican revolution in international relations
After the entry into force of the Lisbon Treaty in December 2009 these two theories have become obsolete. The EU is not a federal state as the Union is based upon treaties and because sovereignty rests with the member states. At the same time, the EU cannot be regarded as a confederal union of states, since it is also composed of citizens and has an autonomous legal order as well as a directly elected parliament and a single currency. In the meantime, the impasse in the debate about the nature of the EU has reached paralysing proportions. During the Brexit-campaign the EU proved to be unable to defend itself against the most preposterous allegations of its opponents.
Against this background, it does not seem exaggerated to suggest that a revolutionary breakthrough in the classic pattern of international relations will be required in order to overcome the deadlock in the debate about the future of the EU. After Brexit, the paradox, formulated by Michael Burgess, that the EU works in practice although it cannot exist in theory, has lost its appeal. Instead, recourse should be had to the scientific principle that, if theory is incapable of explaining reality, theory has to be adapted; not the other way around.
The best way to initiate this fundamental breakthrough lies in a comparison between the EU and regular international organisations. The unique hallmark of the EU in this respect is that the Union is not only composed of states, but also of citizens. This particular construction offers scholars the possibility to replace the traditional Westphalian paradigm in the study of the EU with the civilian perspective of democracy and the rule of law. From the new viewpoint, it is obvious that, if two or more democratic states agree 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. Seen through the prism of this paradigm, the dreaded deadlock has all but disappeared. In this perception, the EU is neither a state nor a union of states, but is rather evolving towards a European democracy.
A story for Europe
The theory of democratic integration, which follows from this paradigm shift, is not merely relevant for academic purposes, but has also great practical implications. The first tangible result is that it gives a philosophical fundament to the proposition made by EC-President Juncker in his State of the Union of 13 September 2017 to describe the EU as simultaneously a Union of States and a Union of Citizens. In his speech Mr Juncker brought an end to the conceptual uncertainty caused by his predecessors Delors and Barroso who portrayed the EU respectively as an ‘Unidentified Political Object’ and as a ‘non-imperial empire’. In consequence, Juncker may be credited for being the first President of the European Commission to acknowledge that the EU can only function as a European democracy, if it is perceived as a Union of States and Citizens.
The theory of democratic integration is the only political theory so far to account for the dual character of the EU as a Union of States and a Union of Citizens. A major asset of the new theory is that it allows for the story of Europe to be retold from the civic perspective of democracy and the rule of law. In line with the standard consideration at the start of the respective treaties that ‘’this Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, four phases in the development of the EU and its predecessors may be discerned from this viewpoint.
The process of European integration started out of the desire to prevent a renewed outbreak of war between the participating states, notably between the archenemies Germany and France. The aim of the European Community for Coal and Steel was to make war between the former rivals not only unthinkable, but also materially impossible. For the citizens of the day, the sharing of sovereignty in this field seemed a reasonable price to pay for the guarantee of peace.
By virtue of the 1957 Treaties of Rome the cooperation was extended to the entire economy and to atomic energy. The members of the European Council described their Communities in the Declaration on European Identity of 1973 as ‘an organisation of democratic states’. This political statement of self-identity served at least three purposes. It was a statement of principle in the framework of the Cold War in order to underline the differences between the political systems of the countries in Western and Eastern Europe. It was also a call on the states of Southern Europe to throw of the yoke of fascism and it served to pave the way for the introduction of direct elections of the European Parliament. In hindsight, the Declaration on European Identity may be regarded as the start of the democratisation of the European House as it illuminates that there is no point in governing an organisation of democratic states in an undemocratic manner.
The democratisation of Europe was accelerated through the 1992 Maastricht Treaty, which construed the EU as a Union of States and Peoples. Although the members of the European Council introduced EU citizenship with the aim to strengthen the position of their nationals, working and/or residing in other member states, the effect of the creation of the new status was that it met the most essential requirement for any democracy to function, namely the existence of citizens. After all, no democracy without citizens.
The Treaty of Lisbon, which was concluded in 2007 after the rejection of the so-called Constitution for Europe, gave the EU its definite form as a Union of States and Citizens. As it also strengthens the capacity of the EU to conduct its own foreign policy, the new treaty embodies the principle endorsed by President Macron in his speech at the Sorbonne of September 2017 that shared sovereignty is reinforced sovereignty (la souveraineté partagée, c’ est la souveraineté renforcée). Moreover, it offers the EU the opportunity to further evolve towards an organisation of democratic states, based on the rule of law, which also works as a constitutional democracy of its own.
Towards a EU definition
Obviously, the transition of the EU from an organisation of democratic states to a democratic polity of states and citizens does not happen overnight. The present problems with respect to the composition of the European Parliament may serve to illuminate the tedious character of the process. Article 14 TEU prescribes that the members of the EP shall be elected by direct universal suffrage, without restrictions with respect to race, age, sex or nationality. In practice, however, these elections are organised on the basis of the Act concerning the elections of the Members of the European Parliament of 1976. According to this act, EP members are elected along national lines. From the perspective of the Lisbon Treaty and the theory of democratic integration, the 1976 Election Act clearly amounts to discrimination of EU citizens for reasons of nationality!
The fact that the European legislator has not yet been able to overcome this impasse underlines the urgency of a new paradigm. The theory of democratic integration implements this paradigm shift by replacing the traditional template of states in the study of the EU with the civilian perspective of democracy and the rule of law. The third advantage of the new theory is therefore that it brings an end to the uncertainty about the nature of the EU by describing the Union in plain and simple terms as a Union of states and Citizens, which functions by virtue of the shared exercise of sovereignty and which aims to become a European democracy.[number of readers: 590]
 Michael Burgess, Comparative Federalism, Theory and Practice, London 2006
 J.Hoeksma, From Common Market to Common Democracy, Oisterwijk 2016
 J-C Juncker, State of the Union Address, Strasbourg 2017
 Walter van Gerven, The European Union: a polity of states and peoples, Stanford 2005
A selection of relevant publications from the Peace Palace Library collection
- Bauer, M.W. & J. Trondal (eds.), The Palgrave Handbook of the European Administrative System, Basingstoke, Hampshire, Palgrave Macmillan, 2015.
- Bergström, C.F. & D. Ritleng, Rulemaking by the European Commission: the New System for Delegation of Powers, Oxford, United Kingdom, Oxford University Press, 2016.
- Birkinshaw, P.J. & A. Biondi (eds.), Britain Alone!: The Implications and Consequences of United Kingdom Exit from the EU, Alphen aan den Rijn, Wolters Kluwer, 2016.
- Brug, W. van der. & C. Holger, (Un)Intended Consequences of EU Parliamentary Elections, Oxford, United Kingdom, Oxford University Press, 2016.
- Delgado Casteleiro, A., The International Responsibility of the European Union: from Competence to Normative Control, Cambridge, Cambridge University Press, 2016.
- Ferreira, N., T.Kostakopoulou, J.Bradshaw, J. Bradshaw & S. Gola (eds.), The Human Face of the European Union: Are EU law and Policy Humane Enough?, Cambridge, United Kingdom, Cambridge University Press, 2016.
- Fischer, K.H., Die Entwicklung des Europaischen Vertragsrechts: Von den Römischen Verträgen bis zum Vertrag von Lissabon, 2. Auflage, Baden-Baden, Nomos, 2016.
- Hamilton, D.S., J.Pelkmans & F.Baetens, Rule-makers or rule-takers?: exploring the Transatlantic Trade and Investment Partnership, London, Rowman and Littlefield International, 2015.
- Haratsch, A., C. Koenig, M. Pechstein, T. Fuchsa & P. Kubicki, Europarecht, 10. Auflage, Tübingen, Mohr Siebeck, 2016.
- Hefftler, C., C.Neuhold, O.Rozenberg & J. Smith, The Palgrave handbook of national parliaments and the European Union, Basingstoke, Palgrave Macmillan, 2015.
- Łazowski, A. & S.Blockmans, Research handbook on EU institutional law, Cheltenham, Edward Elgar, 2016.
- Merket, H., The EU and the security-development nexus: bridging the legal divide, Leiden : Boston, Brill Nijhoff, 2016.
- Mitsilegas, V., M. Bergström & T. Konstadinides (Eds.), Research Handbook on EU Criminal Law, Cheltenham, UK : Northampton, MA, USA, Edward Elgar Publishing, 2016.
- Peers, S., EU Justice and Home Affairs Law, Oxford EU Law Library, Oxford, fourth edition, 2016.
- Schütze, R., European Union Law, Cambridge, Cambridge University Press, 2015.
- Talus, K., Introduction to EU Energy Law, Oxford, United Kingdom, Oxford University Press, 2016.