Is the European Union sovereign?

2016-11-20

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Sovereignty is the supreme authority within the polity. The legitimacy of officials, the legality of the legal system, the specifics of the institutional order, are all predicated on it. In the absence of a recognisable sovereign there can be tensions, disputes, or even conflict as to who or what may rightfully control the means of governance. In that regard, sovereignty can be understood as the basis of a ‘social contract’.

A tradition that traces its roots in history to at least as back as the French Revolution, holds that sovereignty essentially resides in the nation.¹ Only the nation state is sovereign. It is the entity that embodies the national will. It defines its constitutional identity: the framework of practical morality for the organisation of society. The locus of sovereignty, of the exercise of supreme authority and self-determination, is the nation state. This view is expressed, or at least implied in the United Nations Charter, in particular Article 2, as well as various sections of the Treaty on European Union.

Headline vs effective sovereignty

The very fact that relations between states are termed “inter-national” is indication of the perceived intrinsic link between nationality and sovereignty. Only nations can participate in inter-state politics. Against that backdrop, the European Union presents an anomaly. It is a group of nations, not one in its own right. It is not a nation state, but a union of sovereign states. If indeed there is an identity to be established between nationality and sovereignty, if the two cannot be decoupled, then it follows that the EU cannot possibly be sovereign.

That hypothesis, however, can only hold if there is no distinction to be made between the nominality and actuality of things. Nation states do hold the right to sovereignty. They have a headline sovereignty as per the aforementioned tradition. Yet they may not be in a position to exercise control over the full array of the means of governance or the policy instruments/processes thereof. Nations do not necessarily have effective sovereignty, certainly not in an a priori sense.

To appreciate this qualification we may outline the way in which EU politics are conducted. The Treaty on European Union and the Treaty on the Functioning of the European Union, which are the cornerstone of European law, essentially are agreements between sovereign nations. In these agreements the Member States commit to, among others, the basic principle of conferring competences to supranational institutions. To forgo a portion of their power by giving it to ‘Brussels’. They abandon their independence in favour of interdependence, in an effort to reap the benefits of the shared space that is the Union.

This transfer of sovereignty is considered necessary for the EU to pursue its stated ends. To deliver a single market, provide for environmental standards, civil liberties, a robust framework of governance over various issues such as economic and monetary affairs, police cooperation, etc. The result on national politics is the diminution of the scope for unilateral initiative. The government cannot just pursue any course of action based solely on its claims on sovereignty. EU law must provide for it, or it anyhow places certain constraints while revealing new possibilities for multilateral action.

Sovereignty beyond the nation state

The distribution of competences in the Union between the national and supranational levels is defined in functional terms.² Nations still hold the ultimate claim on their sovereignty, which is indicated by the option they have to withdraw from the EU (enshrined in Article 50 TEU).³ But while the justification matters, in practical terms the effect is the same. European institutions have the power to override national authorities over policies that are explicitly conferred to the Union or been defined as matters of shared competence between the EU and the Member States. For example, the European Central Bank is the supreme authority for all monetary and prudential affairs pertaining to the euro area. No national central bank or financial supervisor can act in contradiction to—or deviation from—the policy of the ECB.

We may recognise an emergent mode of sovereignty which manifests at the supranational level as such. It is two-fold:

1. Policy-specific. Sovereign authority is not treated as a monolith. It is divisible and contextual. It has a different composition depending on the area of policy. If it is a matter of Union competence, such as the single market or the euro, then the supranational level enjoys supreme authority. If it is a shared competence, then governance proceeds by reaching a compromise between the good of the Union (the ‘space’) and that of the Member States (the ‘place’). Power rests with the nation state only when the European Treaties do not provide the EU with a scope of action.
2. Heterogeneous. The supranational level is not uniform. There are various parts to it. It is where a multitude of [competing] interests are represented. There is the Community good, that of the Union itself, best served by the European Commission and the Court of Justice of the EU. There are conflicting national interests, formally present in various institutions, especially the European Council and Council of the EU. There also are the aspirations of the European citizens at-large, which are voiced by the European Parliament.

When the polity is not a nation state

What these findings point to is a certain analytical insight: the distinction between the magnitudes of [nation] state and polity. The former is the entity which always holds headline sovereignty. It is fixed. Clearly defined and properly named. Whereas the polity is a more fluid concept. It is emergent from the multitude of international relations. It is policy-specific or else context-dependent. The polity is the province of effective sovereignty for the task at hand. Where the means of governance, their specifics and modal features, actually are, and who or what is indeed in charge of them.

Rather than treat sovereignty as a finite quantity, we may instead perceive of it as the intrinsic quality of a legal-institutional order that is legitimised in the conduct of government, broadly understood as the exercise of control over the full array of the factors pertaining to the political organisation of society.⁴

To this end, the titular question—Is the European Union sovereign?—is inaccurate. A more appropriate reformulation could be this: Are there areas of policy where the European Union exercises supreme authority? To which the answer is an unequivocal “yes”. The EU does have the first and final say over a broad range of issues. But as for the original question, the approach would have to be dubitative. It depends on the definition of sovereignty and the policy (or series thereof) under examination.

The EU as a novelty

The overarching argument, and what may prove useful in other areas of analysis, is that the European Union presents us with a new model of doing politics. It is a unique federal system (though not federal republic), a union of nation states, which proceeds on the basis of a shared interest and constitutional foundation between its Members. Traditional concepts of governance, statehood, and sovereignty are of little use in this regard. The presence of the EU calls for their reconsideration, their evaluation in light of this new concatenation of phenomena.

What remains to be determined is whether the normative dimension of national sovereignty as democratic sovereignty is also present in the EU architecture. Given the absence of a self-conscious European demos, coupled with the policy-specific nature of European supreme authority, we would have to opine on its incompleteness or inadequacy.⁵

Whatever the case, the salient point is that the Union is sovereign, even though it may not be formally recognised as such, or even if it is not in the exact same way a democratic nation state is expected to be.

1. The Declaration of Human and Citizen Rights (1789) (in French Déclaration des droits de l’homme et du citoyen) is a clear indication of this ‘nationalist’ view of sovereignty. In particular Article III (my translation):

   The principle of all sovereignty resides essentially in the nation. No body, no individual can exercise authority which does not emanate expressly from it.

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2. For more on the specifics, read my Little Guide to the European Union, in particular the chapter about the Distribution of competences in the Union. [^]

3. Article 50 of the Treaty on European Union does provide nation states with an option to leave the EU. It does not, nonetheless, bestow a unilateral right for withdrawing from the Union. It rather stipulates exit as a negotiated result between the Member States. For example, Brexit will only happen after the UK reaches a deal with the rest of the EU countries. [^]

4. For an in-depth examination of the theoretical aspects of sovereignty, refer to my new book: Essays on Sovereignty. It is available free of charge. [^]

5. That is a phenomenon I have described as sovereignty mismatch. [^]