Addressing EU paradoxes


Picture of Jaap Hoeksma
Jaap Hoeksma

Philosopher of law and author of the book 'The European Union: a democratic union of democratic states'

The European Union is rife with paradoxes. The citizens of the EU are represented at the Union level by the European Parliament, but they do not pay taxes in return for this right. In contrast to their peers in the United States of America, who campaigned in the 18th century under the slogan, “no taxation without representation”, they enjoy representation without taxation!

An equally obvious paradox lies in the electoral system of the EU. Article 10(3) of the Treaty on European Union (TEU) says in unequivocal terms that the citizens of the Union are entitled to participate in the democratic life of the EU. Moreover, the fourth paragraph of the same article stipulates that political parties at the European level contribute to forming European political awareness and to expressing the will of citizens of the Union.

In the present set-up, citizens are invited to go to the polls every five years. However, when they cast their ballot, they do so in their capacity as citizens of member states. To make matters worse, they cannot vote for a representative of a European political party, but their choice is legally restricted to nationals of their own member state!

Contradictions like these are not merely fun for academics. The recently erupted row between London and Brussels about the status of the EU representation in the UK demonstrates that there is also an urgent practical need to address these paradoxes.

Politicians have not been able to cope with the pace at which their Union is evolving

The decision to convene a Conference on the Future of Europe could have been welcomed as a timely initiative. In line with the sixth priority of the von der Leyen Commission to give new impetus to European democracy, the proposed conference should have been expected to deal with the absurdities of the European construction. In reality, however, the ‘Brussels bubble’ is adding even more perplexing paradoxes to the existing ones.

Although the electoral nightmare which triggered the decision to convene the conference happened almost two years ago, the three responsible institutions appear to be unable or unwilling to agree on the terms of their common endeavour. They even seem to deny their own democratic credentials. Despite the priority to give new impetus to European democracy and notwithstanding the European Democracy Action Plan (EDAP), which Commissioner Jourová launched in 2020, the EU is presented on the Europa server as a “unique economic and political [organisation] of 27 countries, [which] together cover much of the [European] continent”. This description fits a traditional organisation of states, but it fundamentally contradicts the nature of the EU as a European democracy!

The main reason why the EU is at odds with itself is that its politicians have not been able to cope with the pace at which their Union is evolving. Instead of looking at the ground to determine the nature of the Union, politicians and pundits have been gazing at the clouds to find their Platonian answer. One school of thought believes that the European Communities and their successor – the EU – are destined to become a federal state in analogy of the US, while others are equally convinced that the process of European cooperation should lead to the creation of l’Europe des patries. For decades antagonists have been strengthening each other’s conviction that other possibilities were not available. Tertium non datur!

In order to implement sovereignty, the EU needs transnational democracy

In theoretical terms, the dispute between federalists and intergovernmentalists comes down to the question of whether the EU should form a state or an organisation of states. The former implies that sovereignty of participating states is transferred to the new overarching state, while sovereignty remains within the contracting parties in the latter.

The decision of the six founding states in 1951 to share the exercise of sovereignty in the field of coal and steel in order to prevent the renewed outbreak of war was therefore a clear signal of impending change. Six years after the conclusion of the Treaty of Rome, the Court of Justice of the European Communities confirmed the emergence of a new phenomenon in international law. The Court found that, by transferring sovereignty in a number of fields, the member states had given the Communities ‘an autonomous legal order’. In the Declaration on European Identity of 1973, the then-nine member states presented the European Communities to their citizens and the outside world as a ‘Union of democratic States’.

The first step which the leaders of these states subsequently took was to give their Union democratic legitimacy too. The first direct elections for the European Parliament were held in 1979. They were followed by the establishment of EU citizenship in 1992 and the introduction of a single currency from 1999. While the Charter of Fundamental Rights (CFR) of 2000 was to serve as the Magna Carta of the new citizens, the 2007 Lisbon Treaty construed the EU as a representative democracy without turning the Union into a state. Consequently, in 2014, the European Court of Justice (ECJ) established that the EU is by its very nature precluded from being regarded as a state, while it strengthened its democratic character by concluding that the Union has an autonomous democracy in 2019.

The case law of the ECJ coincides with President Macron’s call for European sovereignty. In order to implement sovereignty, the EU needs transnational democracy! The Conference on the Future of Europe offers the EU an excellent chance to come to terms with its democratic credentials. This opportunity should not be spoiled by interinstitutional wrangling, but it should be exploited to the fullest!

The EU is neither a state nor an organisation of states, but constitutes a ‘Union of States and Citizens’

The present historical survey justifies the conclusion that the EU has both its own, distinct form of organisation (namely a ‘Union of States and Citizens’) and a unique form of governance (namely a transnational democracy). Consequently, the EU is neither a state nor an organisation of states, but constitutes a ‘Union of States and Citizens’, which works as a transnational European democracy. From the global perspective, the EU is the first ‘democratic regional organisation’ in the world.

Accepting its identity as a democratic union of democratic states may be the most effective way for the EU to defuse the present tensions surrounding the diplomatic status of its representation in the UK.

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