The Constitutional Identity of the EU

Virtually 75 years after the inspiration of the European Coal and Metal Group in 1951, the constitutional id of the European Union has been established eventually. In a – but to be revealed – current deal with to the European Parliament, President of the ECJ recognized the EU as ‘a democratic union of democracies’. According to the evaluation that the EU has developed from a union of democratic states to a union of democratic states which additionally constitutes a democracy of its personal, President Lenaerts launched a brand new clear time period for describing the character of the EU.

This authoritative opinion has a significant bearing on the theorisation of European integration because it implies that the EU is neither a State nor a global organisation. The current weblog submit goals to look at the conceptual background of this breakthrough and to reveal why the optimistic identification of the EU as a European democracy is related for the EU’s capability to defend its constitutional achievements.  

Westphalian presumptions

The controversy about ‘the character of the beast’ has been deadlocked from the beginning of the method of European integration in the midst of the twentieth century. Whereas it was plain to see that the European Communities and the following European Union have been neither a state nor a mere affiliation of states, ideologists and students tried to forge it into one of many two out there choices. The educational communis opinio within the subject of the humanities contributed to the prolongation of the stalemate by accentuating the incompatibility of the ideas of democracy and worldwide organisations. The American political theorist Robert Dahl asserted in 1999 that worldwide organisations can’t be democratic. His views have been corroborated by the authorized scholar Joseph Weiler who posited on the peak of the euro-crisis in 2012 that ‘democracy shouldn’t be within the authorized DNA of the EU’. These observations, nevertheless, are primarily based on a scholarly set of presumptions generally known as the Westphalian system of Worldwide Relations. The Westphalian system has been praised by Jean Jacques Rousseau because the everlasting basis of worldwide relations and, in the present day, underlies the functioning of the United Nations. The template emphasises absolutely the sovereignty of states and holds that democracy and the rule of regulation can solely thrive inside the borders of a sovereign state.

Ought to the Member States collaborating within the technique of European integration have continued to abide by the Westphalian ideas, the tutorial debate regarding the nature of the EU would have been easy and simple. The EU would both have needed to develop into a federal European state with a bicameral parliament and an unbiased judiciary or to ascertain itself as an affiliation of sovereign nation-states. Constitutional democracy would both need to be applied on the extent of a single European state or on the nationwide degree of the contracting states. European democracy with no European state was not on the tutorial menu.

Ever nearer union

If the principle educational advantage consists of an open thoughts, then the tunnel-vision with which European students approached the mixing course of quantities to a persistent betrayal of those deserves. The writings on the wall might hardly have been clearer! Within the ultimate years of the interbellum interval, intellectuals just like the Dutch historian Johan Huizinga already argued that, if the states of Europe needed their continent to outlive, they needed to rein of their absolute sovereignty. The destruction attributable to World Struggle II had been so absolute certainly that the residents of the nations concerned demanded ‘no extra battle’. Their want was translated by the politicians of the day within the willpower to put the foundations for an ever nearer union among the many peoples of Europe, because the preamble to the 1957 Rome Treaty proclaimed. The six founding states of the European Financial Group shared the train of sovereignty to be able to stop the renewed outbreak of battle between them.  

The institution of the European Coal and Metal Group in 1951 has been certified as a revolutionary breakaway from the standard sample of worldwide relations. This conspicuous departure from the prevailing paradigm was epitomised by the will for ever nearer union. In conceptual phrases, the willpower to put the foundations for an ever nearer union among the many peoples of Europe implied the substitution of a Spinozistic aspiration to attain a bonum commune for the Hobbesian precept of perennial animosity between states. The mix of the linguistic novelty of ‘ever nearer union’ with the observe of pooled sovereignty ought to have sufficed to tell educational observers that the states collaborating within the technique of European integration had ceased to treat one another as potential enemies. As a substitute, the lesson they realized from the world wars in a single technology was that the one option to save ‘the outdated continent’ lay in surpassing the Westphalian system. The European Court docket of Justice contributed to the envisaged emulation by clarifying in 1963 that the Member States had created a brand new authorized order for the good thing about which they’d restricted their sovereign rights. Ten years after the well-known Van Gend en Loos-verdict, the Member States introduced themselves within the 1973 Declaration on European Identification as a Union of democratic States.

Had they been alert sufficient to interpret the 1973 Declaration within the mild of the paradigm swap from a Hobbesian to a Spinozistic method, students would have noticed that the method of European integration was not a zero sum-game however had became an unprecedented effort to create a transnational democratic polity. This commentary would have enabled them to acknowledge that the method of European integration was knowledgeable by the democratic crucial that, if democratic states comply with share the train of sovereignty in ever wider fields with a view to realize widespread targets, their organisation have to be democratic, too. Certainly, implementing their willpower to make their polity democratic too, the Member States modified the Parliamentary Meeting right into a instantly elected Parliament and organised the primary European elections in 1979. European voters endorsed their initiative with a turn-out of round 60%.    

Democracy past the State

Whereas the tutorial debate of the day was dominated by the revelation of the democratic deficit, the Member States continued to defy Westphalian dogmas by executing their program of constructing their union democratic too. Seen via the lens of the civic perspective of constitutional values, the choice to introduce a citizenship of the Union constituted a landmark within the democratisation of the European Union. With out residents no democracy! Sadly, the significance of the creation of EU citizenship was obscured by the Council’s motivation that it was merely meant to strengthen the interior market, which Europe 1992 was to finish. In 1997, the European Council rectified its conceptual mistake by introducing the values of the Union in Article F(1) of the Treaty of Amsterdam (now enshrined in an expanded wording in Article 2 TEU). In hindsight, the preliminary fault could also be perceived as the last word affirmation that there was no blueprint for the EU’s evolution from a union of democratic states to a democratic polity of states and residents. Crafting its personal path ahead, the EU proclaimed its Constitution of Basic Rights on the 2000 Summit of Good and ready itself for a Hamiltonian leap ahead.

After the rejection of the Structure for Europe by the electorates of France and the Netherlands in 2005, nevertheless, the European Council determined to withdraw the ill-fated doc and to interchange it with a treaty. Regardless of preliminary criticism, the 2007 Treaty of Lisbon proved to mark a distinguished stage within the course of of making an ever nearer union by developing the EU as a democracy with out turning the Union right into a State. The conceptual hallmark of ‘Lisbon’ is that it applies constitutional values in a global organisation. To place it in another way, the European Union is the one worldwide organisation which works as a constitutional democracy. Regardless of the proof offered by the treaties, nevertheless, political theorists and worldwide legal professionals held on to their conviction that ‘democracy shouldn’t be within the authorized DNA of the EU’.

Past the ‘nature of the beast’-conundrum

A big effort to interrupt the impasse, undertaken by Kalypso Nicolaïdis who floated the idea of demoi-cracy and prompt that the peoples of Europe needed to govern collectively however not as one, was thwarted by the argumentation of republican intergovernmentalists that the democratic deficit was attributable to the EU and that the Member States needed to Take Again Management. Regardless of the evident conceptual penalties for the controversy about Brexit within the UK, lecturers as soon as once more most popular to disclaim actuality within the identify of idea! 

Happily, the EU Court docket of Justice continued in its efforts to reveal the inherent construction of the Lisbon Treaty in its jurisprudence. The ECJ notably clarified the that means and scope of EU citizenship by making clear, inter alia, that EU citizenship is the elemental standing of the nationals of the Member States and that the residents are entitled to say ‘civis europaeus sum’. Within the Democracy-Verdicts of 19 December 2019, the Court docket established -in this creator’s view- that the EU enjoys not solely authorized but additionally democratic autonomy. Refuting the totally Westphalian declare of Poland and Hungary in 2022 that the withholding of funds by the EU for violation of the values of the Union amounted to undue interference within the inner affairs of sovereign states, the Court docket emphasised that the EU is entitled to defend its values. As if to enlighten the contributors within the stalled debate concerning the ‘nature of the beast’, the ECJ not solely defined that the EU had outgrown the Westphalian paradigm but additionally indicated the way it had completed so. Within the evaluation of the Court docket, the Member States had firstly agreed on their widespread values and subsequently utilized these values to the EU as their widespread organisation. The EU has developed from a Union of democratic States (Copenhagen Declaration 1973) to a union of democratic states which additionally constitutes a democracy of its personal. By way of political idea, the ECJ’s jurisprudence permits for the EU to be described as a democratic union of democratic states.

The EU’s constitutional id

The preliminary conclusion to be drawn at this stage, is that the EU in its current type is neither a state nor an peculiar affiliation of states however will be characterised as a democratic union of democratic states. In distinction to different (regional) worldwide organisations, the EU has a constitutional framework of its personal. In her current Opinion in Fee v Hungary (values of the European Union), Advocate Normal Ćapeta notably spoke of the EU’s mannequin of constitutional democracy.

Seen within the context of the interior developments within the EU, the emergence of the EU’s constitutional id might present a key to the answer of the Union’s perennial conundrum regarding ‘the character of the beast’. The European enigma originates from the totally Westphalian proposition that the post-war polity ought to both develop into a federal state or set up itself as a confederal affiliation of states. Throughout virtually 75 lengthy and tiresome years, Europeans have been caught in a bitter dispute concerning the finish purpose or finalité politique of the endeavour to create an ever nearer union. As the 2 opposing ideologies realised in the long run that they might solely make progress within the integration course of in the event that they shunned elevating the topic of the tip purpose of their endeavour, the current creator launched the time period of the paradox of the finalité politique for denouncing the conundrum. As a substitute, it may be demonstrated that the EU overtly defies the Westphalian knowledge of the 2 prevailing ideologies. This blogpost finds extra particularly that the EU has outgrown the Westphalian system and that, in consequence, the standard dogma’s regarding the irreconcilability between worldwide organisations and constitutional values are not relevant.

Constructive identification

Clearly, the identification of any object which was once thought to be a conundrum lifts the enigmatic character thereof. Within the case of the EU, the method of building the character of the polity has been an incremental endeavor which held tempo with the evolution of the EU and its predecessors from a union of democratic states to a democratic polity in its personal proper. With none declare to educational completeness, a number of levels within the improvement of the Court docket’s method will be discerned. In its groundbreaking 1963 verdict within the case of Van Gend en Loos it established that the Communities shaped ‘a brand new authorized order of worldwide regulation for the good thing about which the States have restricted their sovereign rights …. and the themes of which not solely comprise the Member States but additionally their nationals’. In brief, it established the precept of authorized autonomy of the Communities.

Virtually 1 / 4 of a century later, the Court docket discovered within the case of Les Verts that the treaties type the constitutional constitution of the polity. Whereas the Court docket dominated in its Opinion 2/13 of 2014 that the EU shouldn’t be a State, it discovered within the Conditionality Verdicts of 16 February 2022 that the polity has a standard authorized order including that this widespread authorized order is predicated upon the values of Article 2 TEU. In his Trier Lecture on the Way forward for Europe of 24 January 2025, ECJ-President Lenaerts went one step additional by portraying the EU as a standard authorized order, understood as a standard governance construction for the collaborating Member States understood as a standard governance construction for the collaborating Member States. Bearing in mind that this ‘widespread authorized order understood as a standard governance construction for the collaborating (democratic) Member States’, is predicated on the values of Article 2 TEU, the final step to be made consisted of the identification of the EU in clear and clear phrases as a democratic union of democratic states.

The endorsement of this time period comes at a time during which the constitutional achievements of the EU are being threatened each by inner and exterior forces. Whereas the Russian aggression in opposition to Ukraine continues unabated, the makes an attempt of far-right events to dismantle European democracy are overtly supported by the Trump-administration within the USA. As President of the European Parliament, Roberta Metsola encourages the EU in her speeches and interviews to maintain calm and to indicate self-confidence. As self-confidence requires compliance with the traditional maxim of self-knowledge, the identification of the EU as a democratic union of democratic states by ECJ-President Lenaerts couldn’t have come at a greater time. It’s now as much as the European Parliament and the opposite EU-institutions to indicate resilience within the safety of the constitutional achievements of the Union.   

Jaap Hoeksma (1948) studied constitutional regulation philosophy on the Free College in Amsterdam and labored for the UNHCR from 1976 to 1990. He based his firm Euroknow to be able to contribute to the democratisation of the EU via his board sport EUROCRACY. Within the wake of the 2007 Lisbon Treaty, he began to publish concerning the authorized foundations of European democracy and drafted the speculation of democratic integration.