The EU cannot pretend to be a democracy and present itself as a simple Union of States argues Jaap Hoeksma

Until the EU decides what kind of democracy it really wants to be, it should not be engaged in Biden’s ‘Summit of Democracies’
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By Jaap Hoeksma

Jaap Hoeksma is a philosopher of law and author of 'European Democracy' (2019) and 'The EU: a democratic Union of democratic States'. Both publications can be downloaded for free at: https://www.wolfpublishers.eu/futureofeurope

02 Dec 2021

The EU is the only international organisation that is participating in the Global Summit of Democracies, which US President Joe Biden will kick off on 9 December. A politically sensitive element of Biden’s invitation to the EU is that Hungary – an EU Member State - has not been invited.

This paradoxical state of affairs raises serious questions over the nature of EU democracy. Can an international organisation work on a democratic footing and, if so, can the organisation be regarded as democratic if one of its members fails to meet minimum standards of constitutional democracy? In short, is the EU fit for the Summit of Democracies?

The EU has been quarrelling over its purpose and identity since the Treaty of Rome in 1957. Winston Churchill wanted the ‘old’ continent to follow the example of the USA and called for the creation of a United States of Europe. Others, notably Charles de Gaulle, insisted that the countries of Europe had to retain absolute sovereignty. His blueprint for the future envisaged a Europe of Nation States.

Political theorists underpinned these approaches with ideological motivations. As a result, the debate over the nature of the EU and the future of Europe was dominated by the battle between two opposing ideologies for decades and ended in deadlock. The most plausible explanation for Europe’s self-doubt may well be that the EU has emerged from its formative decades as a new type of international organisation with a distinct model of governance.

"The EU is not a state because it does not aspire to statehood. The treaties underline time and again that the EU must respect the sovereignty of its Member-States. Nor is it a Union of States because it is also composed of citizens and has an autonomous legal order as well as a directly elected Parliament and a single currency"

Leaving the teleological debate aside, it can easily be demonstrated that the EU at 70 is neither a State nor an organisation of States. The EU is not a state because it does not aspire to statehood. The treaties underline time and again that the EU must respect the sovereignty of its Member-States. Nor is it a Union of States because it is also composed of citizens and has an autonomous legal order as well as a directly elected Parliament and a single currency. As the EU is capable of establishing diplomatic relations on the global stage, it forms a new topic of international law. In terms of the UN system of global governance, it can be identified as ‘a democratic regional organisation’.

Seen from the internal perspective of the citizens, the EU may be described as a ‘Union of Democratic States, which also forms a democracy of its own’. The hallmark of the 2007 Lisbon Treaty is that it construes the EU as a democratic union of democratic States. The Treaty requires the EU to respect similar standards of democracy and the rule of law as the Union demands its Member States to meet. In academic terms, the EU can identify itself as a democratic regional organisation, which derives its political legitimacy both from its Member States and from the Union.

This concise legal analysis leads us to the conclusion that the determination to lay the foundations for an ever-closer union among the peoples of Europe has led to the creation of an unprecedented European democracy. Unfortunately, however, political theorists prefer to continue their outdated ideological battle and choose to neglect the legal developments ‘on the ground’. This academic dereliction hampers their efforts to explain. the democratic backsliding, which occurred after the entry into force of the Lisbon Treaty. Influenced by the Trump-Brexit ideology some Member States began flouting the rule of law and to portray themselves as ‘illiberal democracies’.

"The EU cannot pretend to be a democracy and present itself as a simple Union of States. In his November address to the FIDE-conference in The Hague, Koen Lenaerts, President of the EU Court of Justice, added his voice to concerns that the EU is wavering over the core Union values"

They succeeded in sowing so much doubt in the European Council that the outgoing German Chancellor, Angela Merkel, revived the debate around the nature of the EU. By publicly asking ‘what we are, an organisation of States or an ever-closer union?’, she ignored the essence of the Lisbon Treaty and left other EU institutions out in the cold.

Unfortunately, the European Commission is unable to provide any clarity either. Although Commission President Ursula von der Leyen wants to give EU democracy a new impetus, it portrays the Union to the participants in the Conference on the Future of Europe as ‘a unique economic and political union of 27 European countries.

However, the EU cannot pretend to be a democracy and present itself as a simple Union of States. Seen against this background, the embarrassing decision of Hungarian leader Viktor Orbán to prevent the EU from speaking on behalf of the Member States at the forthcoming summit of democracies only serves to underline that the European house is not yet in order in the domains of democracy and the rule of law.

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