European constitutional order and res publica

Update May 9, 2016: For the most up to date analysis, see my free book Little Guide to the European Union.

The present seminar EU401, as with any other item that may be designated according to the format EU4 X Y, covers special issues in the European integration process. It has no prerequisites though it is recommended that you are familiar with the topics covered in previous seminars.

Outline

the EU Treaties as a de facto constitution
constitutional principles of EU law
- conferral
- subsidiarity and proportionality
- delegated sovereignty
the EU as a republic manqué
- elements of a republic
- flaws of the European Commission (implementing executive)
- flaws of the European Council (deciding executive)
- limits to European social goods

Transcript

In one of the introductory seminars we argued that the European Union is a peculiar political organisation. It does not fit into the standard classes we generally use.¹ It is not an outright confederation, nor can it be considered a proper federal republic. Depending on the area of policy, the EU may function as a confederal order, or a federal one. Because of its particular nature, we have opted to consider it a federal system. The EU stands somewhere in between a confederation and a federation.

The European Union is based on a set of international treaties. These namely are (i) the Treaty on the Functioning of the European Union or TFEU, and (ii) the Treaty on European Union or TEU. The nation states that have signed and ratified those treaties are formally referred to as the Member States of the European Union.

The fact that the Union’s primary law is a set of international treaties can lead one to think that it is an international organisation such as, say, the United Nations. Strictly speaking though, that inference is incorrect. Compared to such entities, the EU is much more competent in the relative power it wields. This is to be attributed to the substantive nature of European law as supra- national rather than inter- national.

Unlike most international covenants, the EU Treaties form a very strong bond between the participating nations. Their provisions have far-reaching ramifications for the legal-institutional order of the Member States. In exchange for the greater benefits of European integration, a nation state that joins the EU must comply with an extensive legal corpus and be prepared to give up on its authority—or aspects thereof—over several areas of policy.

The European Treaties establish institutions above the national level that can exercise sovereign control over certain issues. For example, the European Central Bank is envisaged in the EU’s primary law as one such supranational institution and, as far as monetary policy in the euro area is concerned, it is the supreme authority.² Another case in point would be the ordinary legislative procedure at the European level. On several areas of policy, the European Union promulgates laws that are binding on the Member States. Such legislation typically takes precedence over any national law that may contradict it. In other words, a national legislature cannot overrule the European one, if the latter enjoys primacy by virtue of rights conferred to it in the Union’s primary law.

It is no metaphor or exaggeration to suggest that the European Treaties have a constitutional standing. Although they are still referred to as if they were typical instruments of inter-state politics, their actual function is that of a codified corpus of primary law. The Treaties regulate relations between the supranational and the national levels, as well as among the Member States insofar as their presence within the EU is concerned.³ Yet they also are the cornerstone of a body of law that grants rights directly to citizens; rights that are outright supranational, such as the freedoms of movement and establishment incorporated in the European citizenship.

And therein lies a paradox that contributes to the EU’s peculiar nature. Even though European law applies directly to citizens, and may therefore be considered a distinct category of constitutional order, the Treaties essentially are inter-state agreements. As much is declared at the very outset of the Treaty on European Union. If the EU is the constitutional object, then the subject is the collective of the nation states that sign and ratify the European Treaties. European law may treat all citizens as “European” but the overall architecture of the European Union has little scope for the instantiation of a genuine “European demos”. For example, European citizens do not have the power to elect their own supranational executive. The European Commission’s political leadership is essentially determined at an intergovernmental level, subject to approval by the European Parliament. Similarly, the President of the European Council has no executive power in their own right and is appointed in office by national governments.⁴

The Treaties are the fundament of legality in the EU, though they obviously do not exist in a legal vacuum. The Member States have constitutional traditions of their own. These are considered equal as are nation states qua states. Given this and the specifics of the European Treaties it is best to speak of the EU’s primary law as a functional extension of the normative achievements of European nations. The purpose of the Treaties is, first and foremost, to arrive at what is common in the multitude among the national constitutional traditions, and to elevate it to the status of general rule for the entirety of the system. It is therefore no surprise that the Treaties need to be ratified by every nation state. That ensures their compliance with—and orderly continuity of—the national constitutional order.

To recapitulate on the general features of the European Treaties, let us recall the following:

The first truth about EU primary law is that while it is the product of international relations, a covenant between nation states, it is supranational and substantive nonetheless. The specifics of European law are what distinguish the European Union from international organisations and what make this architecture a federal system that resembles a federal republic in several important ways.
The second truth about the European Treaties is that they are complementary to the constitutional achievements of the Member States. The EU does not abolish its nations and nation states. On the contrary, it is contingent on them. The EU provides a platform and legal-institutional framework for the coexistence and concerted action of its Member States. European law is meant to enhance and functionally extend the normative achievements of European nations.
The third truth about the Union’s primary law is that it is not referred to as a “constitution” due to the significations attached to that term. We still refer to the European Treaties as “Treaties”, as if they were standard tools of inter-state relations. Though arguments over semantics can be made, the practical constraints are political. Citizens attach great value to a “constitution” and are justified to consider it the cornerstone of a republican order. Given that a European demos is not yet fully realised, citizens are right not to consider the European Treaties as a “true” constitution. We therefore claim that the Union’s primary law is the de facto constitution of an otherwise idiosyncratic political organisation.

All of the above granted, let us now proceed to the principles of the Union’s primary law. Though we can be descriptive and enumerative, we shall remain somewhat generic by only referring to its irreducible qualities. By that we mean to discuss those principles without which the EU would and could not exist, at least not in its current form.

In this light, there are three constitutional principles, namely, (1) conferral, (2) subsidiarity and proportionality, and (3) delegated sovereignty.⁵

The principle of conferral is what determines the distribution of competences in the Union. It regulates relations between the supranational and the national levels. The idea is that powers that are explicitly conferred to the EU are no longer within the reach of national governments and, conversely, any area of policy that is not mentioned in the Treaties remains a national prerogative.

The distribution of competences is based on an exhaustive list that follows a three-fold qualification: (a) those competences that are exclusive to the Union,⁶ (b) those that are matters of shared competence between the EU and the Member States,⁷ and (c) those where the EU can only be supportive of the operations of national governments.⁸

We can better understand this qualification as a spectrum of power distribution. Exclusive competences confer sovereignty to the EU institutions. The supranational level has the first and final say. Shared competence makes sovereign authority a matter of supranational and intergovernmental deliberations. In this case, no national government can act on its own accord, nor can its initiatives prejudice the actions of the rest of the Union. As for the supportive competences of the EU, they leave authority to the national level, though the Union can still issue its recommendations and, perhaps, exert a degree of diplomatic pressure when and where necessary.

Though subsidiarity and proportionality can be treated as distinct principles based on their function, they do in fact apply to the same issue and pursue a common objective, namely, the method by which the distribution of competences among the various levels of government is to be achieved. Subsidiarity and proportionality are hereby considered connatural by virtue of their common telos.

Subsidiarity is the idea that authority should be exercised at the appropriate level of governance, following an ascending direction, from closest to the citizen to furthest. If a certain issue can be fully addressed at the local level, then only the local authorities should have power over it. Phenomena of a national reach are best treated by the central government, while those with a cross-border or global scope lend themselves to political action at the supranational level.

For this bottom-up approach to be limited to the sought ends, proportionality is needed. Powers trusted to an authority should always be commensurate with the task at hand. Thus even if, say, the EU institutions were supposed to act on a given issue, their policies should in no way grant them additional powers and should not prejudice the capacity of other levels of government to adapt as necessary within their remit.

Subsidiarity and proportionality substantiate a method for limiting the power of the state and for enabling citizens to place a check on the government, not least via the judicial route.

For a nation state to become part of the European Union it has to comply with the Community acquis. In other words, it has to transpose into national legislation the rules and legal provisions that form the acquired level of European integration, and make sure that its constitutional order is in harmony with that of the Union. Put simply, EU Member States agree to divide their sovereignty and transfer a significant portion of it to the supranational level.

It is important to note that the nation state that is granted membership to the European Union does not forfeit its claims on sovereignty. It rather offers its consent to a redistribution of authority along functional lines, of it being necessary for the proper operation of the EU. This idea is reflected in the European Treaties, which provide for the possibility of a nation state reclaiming its sovereignty and, thus, exiting the Union as a result.⁹ Full national sovereignty and EU membership are mutually incompatible.

Though the Treaties do recognise that nation states do not forgo their claims on sovereignty, they do not allow the bond formed between the Union and the Member State in question to be terminated unilaterally. Any Member State willing to repatriate sovereign authority must engage in negotiations with the rest of the Union and must gain their approval prior to exiting. In practice, this means that a series of negotiations need to take place, which will most likely conclude in a compromise agreement. This is exactly what is happening with the United Kingdom.

We have so far made the argument for understanding the European Union as a constitutional order. We also noted that we still consider it to be a federal system rather than a federal republic. These two positions may seem contradictory. The notions of “constitution” and “republic” tend to be intimately linked.

A democracy must be based on a clear set of rules, typically in the form of a codified corpus of primary law. The purpose of such fundamental laws is to identify—and then safeguard—the goods that the polity considers common to all its citizens. The protection of the public good, or else the res publica, is at the heart of what a constitution does.

The perceived tension between the theses of the EU as a constitutional order and of the EU as a federal system can be upheld simultaneously by appealing to a third element: the res publica and the fact that it is not fully realised at the supranational level. Put differently, our argument for the EU as a federal system rather than a federal republic, is based on the idea that it still lacks a genuinely European public good.

The EU is a republic in the making. European integration is a process that may eventually lead to the establishment of a European democracy. The present architecture has the potential of delivering on the public goods peculiar to a republic. It still falls short of actualising that promise.

What are some of the goods that constitute the res publica? A narrow reading would include the following:

representative democracy;
division of powers;
rule of law;
secularism;
delineations between private and public goods (a social market economy);
the sovereignty and independence of the state based on the self-determination of its people.

A more comprehensive view of the res publica would add another set of items, such as:

freedom of speech and media pluralism;
protection of human rights;
respect for the rights of minorities;
equality between people regardless of their education, social background, beliefs, sexual orientation;
protection of the environment and the species.

The EU does, more or less, satisfy all of the above. In particular it features:

the division of powers as per the operational independence of each of its institutions;
the rule of law, the applicable principle of limited government, and respect for the rulings of the courts;
secularism, multiculturalism, multilingualism;
representative democracy, however with the European Parliament being the only institution that enjoys direct input legitimacy;
social market economy, that has nevertheless been brought under extreme pressures throughout the years of the euro crisis;
practical sovereignty manifesting in the primacy of supranational acts on issues where the Union maintains exclusive competence;
the international independence of the EU, as well as the concerted self-determination of its peoples through the ratification of the European Treaties;
a comprehensive range of core values, which may be broadly covered by the ideals of pluralism, environmentalism, and humanism.

If the EU conforms with the republican model, in what sense may it be considered a republic manqué; a republic that has yet to be fulfilled? Where the European Union deviates from the generic understanding of the republic is in the specifics.

As we noted before, there is no fully-realised European demos, not least because citizens do not have the power to directly elect the supranational executive, the “EU government”.

The European Commission, which is the system’s implementing executive is a political body in technocratic clothing. It is led by a group of Commissioners, one per Member State, who are in fact appointed in office following a grand intergovernmental bargain, even though the European Parliament continues to entertain the largely exaggerated notion that it has actually elected the Commission President—Mr. Jean-Claude Juncker—via the spitzenkandidaten procedure.

Furthermore, the Commission’s role is supposed to be purely technical in nature: to initiate the legislative process, to implement supranational acts, and to monitor the compliance of Member States with the Union’s legal order—to be the “guardian of the Treaties”. In spite of its technocratic mandate, it is headed by a college of Commissioners that are prominent politicians in their own right and who are in office courtesy of a political agreement. The political nature of the European Commission hampers its technocratic purpose. It renders it prone to external pressures, political calculations, and ulterior motives for gaining leverage in the political process.

The other institution of the European Union that qualifies as an executive is the European Council. It is where the heads of state or government meet to deliberate on the future of the European integration process. The European Council is the entity that instructs the Commission to pursue whatever policy agenda it is pursuing. For example, the recent agreement between the EU and Turkey was made at the level of the European Council. All of the adopted decisions are to be implemented by the Commission. To that end, the Commission may also have to initiate the ordinary legislative procedure.¹⁰

Here too, European citizens, the demos at large, cannot have a direct input on who gets to be the Union’s deciding executive. The formation is intergovernmental, which means that all agreements are a compromise between competing national interests without the European interest as such being represented. European citizens do not know exactly what transpires at a European Council summit. Everything happens behind closed doors. This practically means that the demos cannot exercise its duty of scrutinising the authorities. It cannot place a check on those who adopt decisions on its behalf.¹¹

It is readily apparent that when it comes to the executive function the direct input legitimacy of the EU leaves much to be desired. In this regard, the brand of representative democracy that exists at the supranational level is actually inferior to what applies, at least in principle, at the national level.

The other area where the EU falls short is social and civic policy. European integration is a rather uneven process. There exists a single market, an extensive framework for economic governance, a monetary and banking union, but there are no such things as:

a proper supranational unemployment scheme;
supranational pension funds and social insurance;
outright European legal persons, such as associations and non-profit organisations;¹²
an EU-level fiscal policy, which would include, among others, European taxation and a European investment policy.

On such issues the EU is nowhere near as competent as the nation states it encompasses. Though citizens may benefit from the equivalent national public goods, their life becomes much more complicated when they engage in cross-border activities; activities that are supposed to be the quintessence of European integration.

At any rate, our concern here is the supranational level as such. We examined its primary law and found that it does qualify as a “constitution”. We have compared some of the main features of the EU with the republican model and discovered that it does indeed conform with it. Where we identify flaws is in the substantiation of a genuinely European res publica, both in the form of an actualised European demos, and in the institution of supranational public goods.

It is for those reasons that we conclude the present seminar with the realisation that the European Union is a polity that can be described by its three main characteristics:

its primary law, the European Treaties, is a de facto constitution;
though the EU derives from inter-state covenants, it is not an international organisation, but rather stands as a federal system, a hybrid of a federal republic and a confederation;
the supranational level satisfies several criteria of the republican model but falls short on a number of specific issues, thus making the European Union a republic manqué.

The European Union as a federal system. Seminar published on March 7, 2016. [^]
Independence and accountability of the ECB. Seminar published on March 16, 2016. [^]
The “no-bailout clause” or the “solidarity clause” would be cases of the Treaties regulating relations between the Member States. Understandably, the nuances of that thesis fall outside the scope of the present seminar. [^]
The same description applies to the Eurogroup President. The presidency or indeed the Eurogroup as such have no executive powers in their own right. Authority rests with the participating national governments, hence the need for intergovernmental agreements. [^]
In a December 28, 2015 analysis, titled Five constitutional principles of EU law, I had claimed that subsidiary and proportionality are distinct. I no longer consider that position to be accurate. I had also included the division of powers as an EU principle, which is correct though in no way peculiar to European law. In this seminar I have limited the inquiry to the essentials of the EU constitutional order, to those factors of discernment that contribute to its peculiar nature. [^]
Exclusive competences for the EU cover (Article 3.1 TFEU):

(a) customs union; (b) the establishing of the competition rules necessary for the functioning of the internal market; (c) monetary policy for the Member States whose currency is the euro; (d) the conservation of marine biological resources under the common fisheries policy; (e) common commercial policy.

[^]
Shared competence between the EU and the Member States concerns (Article 4.2 TFEU):

(a) internal market; (b) social policy, for the aspects defined in this Treaty; (c) economic, social and territorial cohesion; (d) agriculture and fisheries, excluding the conservation of marine biological resources; (e) environment; (f) consumer protection; (g) transport; (h) trans-European networks; (i) energy; (j) area of freedom, security and justice; (k) common safety concerns in public health matters, for the aspects defined in this Treaty.

[^]
Supportive competence is maintained by the EU on issues that are perceived as primarily national, namely (Article 6 TFEU):

The Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States. The areas of such action shall, at European level, be: (a) protection and improvement of human health; (b) industry; (c) culture; (d) tourism; (e) education, vocational training, youth and sport; (f) civil protection; (g) administrative cooperation.

[^]
The meaning of delegated sovereignty—though not the exact term—and the provisions for its reversal are enshrined in Article 50 of the Treaty on European Union. [^]
The intergovernmentalism of the European Council exhibits a phenomenon I describe as a “sovereignty mismatch”. This may be a topic of a future seminar, though it will most certainly be further expanded upon in the book I intend to publish sometime between late April/early May 2016. In the meantime, you can read my first short ebook on the EU, A Handbook on the European Union, where I also discuss the sovereignty mismatch. [^]
Everything that describes the European Council applies to the Eurogroup. The only real difference between the two is in their membership. The Eurogroup only covers the Member States whose currency is the euro. Instead of heads of state or government, it is composed of finance ministers. Otherwise the Eurogroup operates as a “euro-specific European Council”. [^]
A dear friend of mine, Gerald-Christian Heintges, together with Dr. François Mennerat and other citizens are campaigning for the introduction of a Statute for a European Association. Their work is in progress, while the alpha version of their website eurassoc.eu is already accessible. The EU has made some attempts at establishing a legal framework for outright European legal persons but has thus far failed to deliver. [^]

European constitutional order and res publica

Guide to the European Union (EU401)

Outline

Transcript