Is the European Union a republic?

2016-01-02

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The default answer to the titular question is negative: no, the EU is not a republic, for it is a derivative political organisation composed of republics without being one in its own capacity. While this may be a satisfactory explanation it does prevent us from recognising the full extent of EU law and the actuality of the political order it institutes.

The European Union is neither named nor perceived of as a “republic”, nor does it have a primary corpus of law called a “constitution”. Yet it clearly contains, at least in principle, all of the essential elements that make up a constituted polity.

The EU may be found wanting on certain issues, such as on not being democratic enough, or on not having a fiscal capacity for the purposes of conducting macroeconomic policy for the system at-large, or even on the very fact that it remains a largely inter-governmental construct.

It nonetheless is worth delving into the specifics of what may make up a “republic” both for evaluating the abstract qualities of the institutional order of the Union, and for identifying the areas that do need thoroughgoing reform.

Elements of a republic

Starting from the notion of the “republic”, we Europeans, or Western people perhaps, attach a set of significations to the term that includes the following:

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

We compare and contrast republics to other forms of political organisation that generally lack the aforementioned. Hereditary oligarchy cannot be a republic because it is not representative; communism may not deliver a republic as it does not distinguish between private and public goods; an empire is a form of control of one group of people over others and thus denies them their self-determination; and so on. There may indeed be so-called “republics” that do not conform with some of the items on the list above. These have to be considered deviations from the ideal rather than indications of a heterogeneity in the irreducible qualities of a republican order.

In the modern era, where international law is generally recognised as capable of framing and limiting national sovereignty over a number of issues, we enrich the magma of significations attached to the “republic” with a broader array of values:

• 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.

These may be inferred from the very essentials of the republic, such as freedom of speech being connatural with representative democracy, respect for minorities being intimately linked with the twin values of secularism and tolerance, and so on. The general consensus is, nonetheless, to acknowledge the source of these values in the law of the international community as such.

A republic manqué

If we run a quick test of what the EU actually provides for, we can identify several items that conform with the republican ideal:

• 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.

[also see Five constitutional principles of EU law]

Where the European Union deviates from the generic understanding of the republic is in the specifics. It is there where one may find institutional arrangements that leave something to be desired, and, most importantly, it is there where constructive criticism of the system needs to focus on.

A political body in technocratic clothing

Starting from the European Commission, the Union’s implementing executive, it is readily apparent that it struggles to operate against the backdrop of its own contradictions.

At first, it is led by a group of Commissioners (one per Member State) who are in fact appointed in office following a grand inter-governmental bargain, even though the European Parliament wants to believe that it has actually elected the Commission President (the spitzenkandidaten procedure).

Secondly, the Commission’s role is supposed to be purely technocratic 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.

This is not to claim that Commissioners have any ill intentions or are unable to perform their duties and to forward a decent policy agenda, but only to suggest that the political nature of the Commission indeed hampers its technocratic purpose by making it prone to external pressures and ulterior political motives.

A secretive deciding executive

The European Council is the rule forming institution of the Union. It is composed of the heads of state or government of all the Member States and is the entity that provides the Commission with its mandate on the set of objectives it is meant to pursue. It also is the institution that may decide on the need to amend the Union’s primary law. In short: the European Council is the most powerful institution in the Union, perhaps rivaled only by the European Central Bank.

Its authority—this institution as such—is not scrutinised directly by any one body. The European Parliament, which could have performed this function, has no powers over the European Council: it can neither hold accountable any of the national political leaders nor can it gain access to the inner workings of its meetings. The European Council operates behind closed doors, while its members are only individually accountable to their respective parliaments.

Our duty as citizens and researchers is to keep a close check on those who adopt decisions on our behalf. It would have been very enlightening—and indeed our democratic right—to have access to the content of such European Council meetings as those that led to the Cyprus bailout with the concomitant haircut on bank deposits, or the one during the summer of 2015 that paved the way for the third Greek bailout.

Closely related to the European Council, and partaking of the same flaws, is the Eurogroup. This is an informal entity that is only mentioned in a Protocol to the Treaties. It is the body that brings together the finance ministers of the Member States that have the euro as their currency. Though supposed to have no real power, the Eurogroup is a rule forming entity. It is, for all intents and purposes, a “Euro-specific European Council”.

[for more on rule formation, see my free ebook: A Handbook on the European Union]

A limited Parliament

The European Parliament is the only European institution that enjoys direct input legitimacy from the Union’s citizens. It performs its legislative duties together with the Council of the European Union, with the latter representing the interests of national governments.

Because the European Union as such has no fiscal capacity and, hence, no power to raise taxes, issue debt, and manage its own resources, the European Parliament has no influence on the Union’s fiscal stance and social-economic policy: it cannot have a say over the specifics of taxation, since there is no system-wide tax; it is not able to decide on a whole range of topics that concern investment policy, as the Union does not maintain the right to initiate an expansionary fiscal policy (it can on the EU funds that are envisaged in the Multi-annual Financial Framework, though this is not the same thing as those resources come from Member State contributions and are largely determined by the Council).

The European Parliament cannot initiate the legislative process. It has to wait for a draft legislative act from the Commission. All the Parliament can do to exert pressure is to adopt a resolution calling on the Commission to present a legal proposal on a given subject. The problem with the Parliament’s own-initiative reports is that they have no binding power. This coupled with the Commission’s exposure to political pressures, mainly from national governments, implies that the European Parliament cannot mould the agenda, having to work within the constraints set by others.

The potential for a transnational republic

My understanding is that the European Union contains all of the elements of a rudimentary republic. However “rudimentary” is a pretty low standard. We do know what needs to be done to have a better political system for Europe: make it fully representative, led by directly elected officials, transparent, not dependent on inter-governmentalism, capable of maintaining a system-wide fiscal and social policy etc.

These are not unrealisable ideals. We already have them in Europe in various forms and varying degrees. What we lack is a concerted effort to incorporate them in the EU architecture in some way or another. We are thus left with a political organisation that should work for the common good, that should be respected by its own citizens, that should be a leading example of a transnational democracy, and which instead is generally derided, ignored, and often thought of as some kind of a bully or a villain.

The pragmatist’s take on the actuality of the European Union is that its flaws are fewer yet much more evident than the goods it does and can deliver. Though reforming the EU is no simple task, it is easier to address its shortcomings than seek to abolish it altogether for the sake of returning back to the destructively antagonistic national politics of the first half of the 20th century.