By Jaap Hoeksma
Determined to create an ever closer union, the EU has evolved over the decades into a European democracy. While it may be identified with a new term as a democratic union of democratic states, its constitutional identity is under pressure from external and internal threats. This article calls on the EU to defend its constitutional foundations and to embrace and promote its functioning as a European democracy.
Democratic deficit
Seen in the light of democratic theory, the EU’s main achievement consists of its overcoming of the notorious democratic deficit of the Union. At the time of the conclusion of the 1992 Maastricht Treaty, the EU was denounced by its critics as an organization that did not meet its own constitutional criteria. To make matters worse, leading scientists argued that it was actually impossible for the EU as an international organization to amend its democratic deficit. The political theorist Robert Dahl emphasized that international organizations cannot be democratic, while law professor Joe Weiler found that “democracy is not in the legal DNA of the EU.” Their wisdom was informed by the prevailing political paradigm of the Modern Era, known as the Westphalian system of international relations. Like many academic researchers,
they failed to observe that the desire for ever closer union inspired the states participating in the process of European integration to break away from the presuppositions of the traditional template.
Ever closer union
The hallmark of the Westphalian system consists of its conceptual demand that states must enjoy absolute sovereignty. While there may have been valid reasons for stressing the need for states to be sovereign in the middle of the 17th century, Europe and the world at large have fundamentally changed afterwards. In the aftermath of the Great War (1914 to 1918), academics like the Dutch historian Johan Huizinga started to realize that the old continent had become too small for its numerous states to enjoy absolute sovereignty.
The Second World War demonstrated that absolute sovereignty leads to total destruction. Exhausted by two world wars in one generation, the peoples of Europe demanded “nie wieder Krieg,”i.e. no more war again. Their outcry was translated by the politicians of the day in “the determination to lay the foundations for an ever-closer union among the peoples of Europe,” as the preamble to the 1957 Treaty of Rome declared it in diplomatic terms. The creation of the European Coal and Steel Community, which aimed to prevent the renewed outbreak of war between former archenemies by pooling sovereignty, had already been described by a leading textbook as a “revolutionary breakaway from the traditional pattern of international relations.”
By committing themselves to create an ever-closer union, the founding states of the EU replaced the perennial animosity between them with mutual trust and solidarity.
A new legal order
Although the words with which the founding states expressed their intentions could hardly have been clearer, the proponents of the two main post-war ideologies preferred to disregard the departure from the Westphalian template. Instead, they embarked on a seemingly endless debate about the end goal or finalité politique of the emerging polity. Was it destined to become a federal State of Europe, or should it establish itself as a Europe of Nation-States?
Blinded by their tunnel vision, both the proponents of a federal European state and the advocates of a Europe of Nation States failed to account for the paradigm swap, typical for the process of European integration. In consequence, they continued to study an emerging new phenomenon through the lens of an old paradigm. Despite the growing evidence to the contrary,
they kept on perceiving the process of European integration as a traditional zero sum-game, in which the gains of one player implied corresponding losses for others.
Their focus on the past prevented them from appreciating that the EC Court of Justice established in 1963 that the EEC constituted “a new legal order for the benefit of which the member states had limited their sovereign rights.” They were also unable to grasp the meaning of the 1973 Declaration of European Identity, in which the member states not only described their polity as a Union of democratic states but also expressed their determination to make their Union democratic too.
Constructing a democratic polity of states and citizens
The substitution of the democratic principle for the traditional template of states and diplomats throws an entirely fresh light on the subsequent construction of the European polity.
The democratic imperative holds that, if states agree to share the exercise of sovereignty in ever wider fields with the view to attain common goals, the organization they establish for this purpose must be democratic too.
Perceived from this perspective, the decisions taken by the European Council from 1973 to 2007 show a pattern. Starting with the transformation of the EC’s parliamentary assembly into a directly elected European Parliament, the incremental steps of the 1986 Single Act (qualified majority voting), the 1992 Maastricht Treaty (creation EU citizenship), the 1997 Treaty of Amsterdam (introduction of the values of the Union) and the 2007 Treaty of Lisbon (construction of the EU as a democracy beyond the state),
they were aimed at the formation of a democratic polity of states and citizens.
In its Conditionality Verdicts of February 16, 2022, the EU Court of Justice summarized the process of democratization of the EU by accentuating that the Member States had first agreed on their common values and subsequently applied these values to their Union. In this way,
the EU has evolved from a Union of democratic States (Copenhagen 1973) into a union of democratic states which also constitutes a democracy of its own. By doing so, the EU has outgrown the Westphalian template and has established itself as a European democracy.
In its current form, the European Union may be described from the internal viewpoint of the citizens as a democratic union of democratic states, while it can be identified in terms of global governance as a democratic international organization.
Conclusion
However, the democratic identity of the EU cannot be taken for granted. The polity is under threat from both internal and external political forces. The Trump administration in the USA is openly supporting the efforts of illiberal parties in Europe to dismantle European democracy and to degrade the EU to an ordinary association of states.
If the political leaders of the EU want to defend the EU’s constitutional achievements, they should abandon their traditional ambiguity concerning the identity of the Union. Instead, they should profess their commitment to the values of the EU and boost its identity as a democratic union of democratic states.
Democracy is not merely a legal concept to be created by the stroke of a pen. Instead, it must be taught and nurtured. In the same vein, citizenship is not merely a legal status. The emerging European polity can only thrive and obtain independence if it is carried by its citizens.
Jaap Hoeksma is constitutional law philosopher, creator of the board game Eurocracy
This article is published under the sole responsibility of the author, with editorial oversight. The views expressed do not necessarily reflect those of the editorial team or the CEU Democracy Institute.
