The EU set to become a pioneer in a new form of democracy

#CriticalThinking

Picture of Jaap Hoeksma
Jaap Hoeksma

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

On the eve of the Conference on the Future of Europe, the EU Court of Justice (CoJ) has made a significant contribution to the forthcoming debate by providing a new definition of ‘European democracy’. Similarly to how the Van Gend en Loos and Costa v ENEL cases established the concept of ‘autonomous legal order’ in the 1960s, the Court shed light on the idea of ‘autonomous democracy’ in 2019. This finding is of great importance for the other EU institutions in their endeavour “to give new impetus to European democracy”.

The Conference on the Future of Europe was initiated in the aftermath of the 2019 European Parliament (EP) elections and the nomination of the Commission President. It appeared that the political parties and the European Parliament on the one hand, and the European Council, on the other hand, had fundamentally different perceptions of the EU’s electoral system. While the parties and Parliament took the 2007 Lisbon Treaty as the basis for their system of ‘Spitzenkandidaten’, the Council based its actions on the 1976 Act concerning the election of the Members of the European Parliament.

Unfortunately, these differences of opinion are irreconcilable. Whereas the 1976 Act construed the European Parliament as an institution, composed of representatives from the member states, the Lisbon Treaty stipulates that citizens are directly represented at the Union level by the European Parliament. So, the Conference has been tasked to come up with a solution before the next EP elections in 2024.

It can be safely assumed that the reverberations of this verdict will be similar to those of the 1963 Van Gend en Loos case

In their preparatory documents, however, the participating EU institutions have failed to indicate what they mean by ‘European democracy’. The CoJ has therefore provided a valuable service by stepping in to suggest that the EU has an autonomous democracy that must be respected by member states. They should notably refrain from actions which have the effect of undermining or obstructing the Union’s democratic system. For example, Spain’s refusal to allow an elected MEP to take his seat due to “serious crimes” is incompatible with the autonomous democracy of the EU.

It can be safely assumed that the reverberations of this verdict will be similar to those of the 1963 Van Gend en Loos case. This decision paves the way for the description of the EU as a ‘democratic Union of democratic States’.

Obviously, this new EU democracy is not a replica of the established democracies of the member states. After all, the EU is not a state and is not likely to become one in the foreseeable future. The principal distinction between the two is that the democracy of the member states is based on the people or demos of those states, whereas the democracy of the Union is founded on EU citizenship (demokratia as opposed to politokratia).

While the member states nurture a national citizenship, EU citizenship has a functional meaning

Article 10 of the Treaty on the European Union (TEU) explicitly states that the functioning of the Union shall be founded on representative democracy and that citizens shall be directly represented at Union level in the European Parliament. So, while the member states nurture a national citizenship, EU citizenship has a functional meaning. It is a precondition for the EU to work as a European democracy.

It may be regarded as a most fortunate coincidence that the CoJ has delivered its verdict only a few months before the start of the long-awaited Conference on the Future of Europe. This will not only provide guidance to the participants of the Conference, but will also oblige them to give the young European democracy a solid philosophical basis and to ensure the future of the EU as the first democratic organisation of states in the world!

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