Democratic implications of EU membership: incorporating the contested character of the EU - Bertjan Wolthuis Ben Crum Alvaro Oleart Patrick ...
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Democratic implications of EU membership: incorporating the contested character of the EU Bertjan Wolthuis Ben Crum Alvaro Oleart Patrick Overeem
DISCLAIMER This project has received funding from the European Union’s Horizon 2020 Research & Innovation programme under Grant Agreement no. 770142. The information in this deliverable reflects only the authors’ views and the European Union is not liable for any use that may be made of the information contained therein. DISSEMINATION LEVEL Public www.reconnect-europe.eu Page 2 of 35
Project: RECONNECT – Reconciling Europe with its Citizens through Democracy and Rule of Law
GA: 770142
Horizon 2020: H2020-SC6-CULT-COOP-2017-two-stage
Funding Scheme: Collaboration Project
Democratic implications of EU
membership: incorporating the
contested character of the EU
Work Package 5 – Deliverable 3
Due date: 31.12.2020
Submission date: 26.12.2020
Lead beneficiary: VU Amsterdam
Authors: Bertjan Wolthuis, Ben Crum, Alvaro Oleart, Patrick Overeem
www.reconnect-europe.eu Page 3 of 35Content 1. Introduction ......................................................................................................................................... 5 2. The EU as an intergovernmental arrangement for order and peace ................................................... 8 2.1 Characterizing the relationships the European Union establishes................................................. 8 2.2 Implications.................................................................................................................................. 11 3. The EU as an order of cosmopolitan justice....................................................................................... 13 3.1 Characterizing the relationships the European Union establishes............................................... 13 3.2 Implications.................................................................................................................................. 14 4. Evaluating controversies regarding EU democracy and its relation to member states ..................... 18 4.1 Suppression of political pluralism in Hungary .............................................................................. 18 4.2 Violation of judicial independence in Poland ............................................................................... 20 4.3 Germany’s challenge of central-level legal supremacy ................................................................ 21 4.4 Policy conditionality and the bail-out of Greece .......................................................................... 24 4.5 Differentiated integration and Brexit ........................................................................................... 26 5. Conclusion ......................................................................................................................................... 28 Literature ............................................................................................................................................... 31 www.reconnect-europe.eu Page 4 of 35
1. Introduction
European integration transforms the very nature of the states involved in it. Despite the wishes
of ardent Euro-federalists, integration does not dissolve these states. However, states that join
the EU are not the same anymore after joining. Chris Bickerton has evocatively captured this
transformation as one from nation states to member states, which are ‘entities whose self-
understanding is inseparable from pan-European-level cooperation and policymaking’
(Bickerton 2012: 49). Bickerton’s argument is compelling in the way in which it highlights how
European integration transforms the self-image, and consequently the attitude and outlook, of
the states that engage in it. Not only is the EU more than the sum of its constituting parts; its
parts are also transformed by virtue of being part of the whole.
Thus, EU membership can be seen as institutionalising a range of interdependencies that
operate not only in the relations between the member states but also have consequences for
their domestic operation. EU membership imposes certain material and procedural constraints
on member states’ political organisation. This implies that the character of the EU as a polity
comes with a set of constitutional requirements for its member states. In particular, the EU
aspires to be a democratic polity under the rule of law (cf. Habermas 1992).1 This is reflected
in the statement of the foundational values in Article 2 of the Treaty on European Union (TEU),
in which democracy and the rule of law feature as the most distinctive constitutional values.
Yet, whatever the shared values that have been enshrined in the EU treaties, the EU is not a
state, federal or otherwise, at least not for the foreseeable future. There is wide, if not
unanimous, agreement that EU member states are not mere provinces or Länder. Hence, there
is not a specific (state-based) conception of democracy that can be imposed on EU member
states. On the contrary, the EU is characterised by the fact that all its member states bring their
own, often long-entrenched, conceptions of democracy into the Union and accede with
diverging motivations and ideas about what the EU is and how it should evolve. In that sense
the EU is a doubly pluralistic polity composed of a heterogeneous set of member states that
are each – supposed to be – pluralistic internally. To turn this observation around, the EU’s
democratic character hinges on its ability to respect and guard the heterogeneity of its member
states as well as the pluralism of their domestic constituencies.
Against this background, this paper asks:
How does the diversity of EU member states, and the different conceptions of the EU
in which this is reflected, affect controversies about the relationship between the EU
and its member states?
In line with other RECONNECT WP5 deliverables (in particular D5.2 and D5.4), this paper thus
departs from pluralism as an essential feature of democracy; a feature that has been taken to
the next level in the EU. Putting pluralism at the heart of democracy means that one recognizes
‘the fact of pluralism’ (Rawls 1993). A democratic order serves the aim of allowing the peaceful
co-existence of diverse interests and values. As we underline in RECONNECT Deliverable 5.2
(Crum, Oleart and Overeem 2020), democratic pluralism requires political tolerance among all
1
Note, however, that this normative reading of the EU and the core values it involves deviates from the much
more sceptical interpretation by Bickerton (2012: esp. 68) who sees member statehood as primarily characterized
by national executives using the European frameworks to sever their relationship with the national demos.
www.reconnect-europe.eu Page 5 of 35parties involved, even if they maintain agonistic relations to each other, as well as respect for the institutions that protect and express the pluralist order, like a well-working constitution, independent courts, and a pluralist media (cf. Herman 2017). The way we conceive of it in this paper, the pluralism that emerges at the EU level involves above all a pluralism of different conceptions of what the EU is and the nature of the relations that it establishes between its component parts. The question of EU democracy is exactly how these different conceptions can be made to peacefully co-exist. To put our question in focus, we refer to five topical issues that demonstrate that a) the exact constitutional requirements of EU membership are not self-evident and that b) even if they can be identified, it remains unclear on what basis and by what means member states can be compelled to comply with them. The first two issues logically involve the two countries against which Article 7 proceedings have been initiated for risking to breach the EU’s fundamental values. For one, the Fidesz-run government of Hungary has been able to exclude competing political voices from civil society and the public sphere without provoking any consequential response from the EU or other member states so far (Enyedi 2018; Bárd and Pech 2019). For another, the Polish government has come to undermine the independence of the judiciary by placing it under direct executive control (Pech 2020). However, questions about the democratic requirements of EU membership are also raised by longer-standing member states. A prominent case in point – third in our list – is the position of the German Bundesverfassungsgericht that recurrently questions the supremacy of EU law and the exclusive authority of EU institutions, especially the Court of Justice of the European Union (CJEU), to decide about EU law supremacy. Most recently, in its judgement on the Public Sector Purchase Programme (PSPP), the Bundesverfassungsgericht found that policies of the European Central Bank were insufficiently justified (Grimm 2020; Mayer 2020). The fourth issue concerns the way the EU has dealt with the euro crisis, which has attracted criticism for interfering deeply in national affairs and violating the democratic autonomy of its member states (Scharpf 2011; Crum 2013). Most notably, in the case of Greece, it was said that national democracy was held hostage to the policy requirements that the EU imposed, as it would only provide the necessary liquidity if the country were to rubberstamp an extensive list of reforms. A fifth and final issue we want to highlight is the practice of differentiation, which involves member states opting out of specific EU policies or policy domains. These domains include monetary integration, the Schengen-zone of passport-free travel, defence cooperation and the European public prosecutor. Some states have also demanded opt-outs of parts of EU integration areas. A notable case in point was the pre-Brexit demand from the Cameron- administration to be exempted from certain parts of the Single Market. Inevitably, differentiation raises the question whether there are certain EU constitutional essentialia that put a limit to the scope of differentiation and the policy domains for which demands for differentiation can be accommodated. The basic premise of this report is that these five issues need to be examined together. Up until now, scholars have mostly analysed these issues in isolation. However, there are two important reasons for grouping the issues. For a start, they all concern the relation between national and www.reconnect-europe.eu Page 6 of 35
EU democracy. They all touch on the underlying issue of whether EU membership comes with specific democratic requirements and, if so, what these requirements are. Secondly, the five issues are not only linked substantially, by the topic of nation state and EU democracy, but also in their structure and the political dynamics that cause them to emerge. The issues have become genuine controversies within EU thought and practice instead of just problems that allow for a technical solution. With the term ‘controversies’ we mean that these issues are potentially intractable because the problem definition and proposed solution depend on the conception of the EU and of the relationships the EU has established between the participating states and their nationals. The five issues highlight that there is a deep controversy about what the EU is. Too often this remains under-appreciated in academic analyses, which tend to respond to these controversies by proposing solutions. As logical as these solutions may appear, the only thing they usually show is that these issues are solvable from a specific conception of the EU. Then the issues appear to be relatively simple problems that can be handled with the right recipes, or they may even turn out not to be problems at all. But that is true only within that particular conception of the EU. Once one recognizes that the controversies involve conflicting conceptions of the EU, which imply not just different solutions but also different readings of the problem, it becomes clear that they are intractable. Hence, rather than moving directly to solutions, our primary concern in this report is to analyse them in a way that brings the stakes and positions involved fully to light. This report aims to demonstrate that these controversies involve fundamentally different conceptions of the EU itself. This pluralism is integral to the EU and, rather than to resolve these controversies by siding with one or the other conception, it is in the nature of the EU to serve as a political arena in which they can peacefully co-exist side by side. To capture the diversity in positions about the nature of the EU and given that it is agreed that it is not a state, we start from the two basic positions that have emerged in the academic literature (although, obviously, they come in multiple versions). The first position underlines the intergovernmental character of the EU and emphasizes its primary focus on establishing order and peace. Alternatively, we conceive of the EU as a cosmopolitan union, which has both states and states’ nationals as subjects. In the following sections, we first reconstruct the logic of each approach with a particular focus on how they conceive of the relationships that the EU establishes between, primarily, the EU member states and, secondarily and where appropriate, their nationals. More specifically, for each position, we elaborate these relationships at three levels, at the level of contracting states (Herren der Verträge; constituent power), of subjects of the EU order, and of (co-)authors of the EU political system. How does each of the two positions understand these roles? And what is presupposed in the relations (and mutual obligations) between the member states for these roles to be effectively and validly exercised? Then we apply the two EU positions to the five issues. As said, our primary aim is to highlight the conflict about national and EU democracy that runs through these issues and that is intimately connected to different conceptions of the nature of the EU. Once this is fully appreciated, it becomes clear that these issues do not allow for technical solutions but can only be addressed to the extent that points of convergence can be found between the underlying positions. www.reconnect-europe.eu Page 7 of 35
2. The EU as an intergovernmental arrangement for order and peace 2.1 Characterizing the relationships the European Union establishes The first approach can be called a ‘realist’ and intergovernmental perspective on EU integration and democracy.2 This approach draws in part on the thought of Thomas Hobbes, but the realist line of thinking can also be extended to such very diverse thinkers as Machiavelli, Nietzsche, and Carl Schmitt, and contemporaries like Bernard Williams, Raymond Geuss and Chantal Mouffe. These thinkers all aim to avoid approaching politics in a moralistic and legalistic way and emphasize the unavoidability of political contestation. This is of course particularly pertinent in the context of the European Union, as it was created by member states with distinct identities and long-standing conflicts of interests. The realist approach can best be explained by spelling out three key tenets and applying them to the EU. The first tenet is that politics is an unending quest for order. Seen in this light, European integration primarily offers a response to what Bernard Williams has famously called the ‘first political question’, namely, how to secure peace and order in a Hobbesian world (Williams 2005). Importantly, the Hobbesian world the EU speaks to does not concern the inter- personal relations to which it is usually applied. Instead, European integration responds to the quest for order in the international realm, which more than other domains can still be considered to operate according to the Hobbesian logic of anarchy (Morgenthau 1948; Waltz 1959; Mearsheimer 2019). This corresponds to the view of the EU as a supplemental order: before its establishment, the states that joined the European integration project had already secured a social order within their own boundaries and they were able to sustain that order also without the European project. What is more, these national orders come with long- standing historical legacies and are replete with strongly entrenched routines and cultures that separate them from each other. European integration was originally not meant to replace or transform these domestic orders. Instead, its main purpose was and remains to establish an order between states and to secure peace on a continent that has long been torn apart by wars. This quest for order and peace is unending. The realist perspective highlights that no order can ever eradicate the underlying potential for conflict between its subjects. An authoritative order may succeed in pacifying the relations between the subjects for a while, but it does not change their inherent motivations; it only contains the violent expression of these motivations by institutionalizing an effective counterforce. Hence, the primary political quest remains that of order. Correspondingly, the primary aim of politics will continue to be peace rather than justice and equilibrium rather than equality; even in a tightly integrated and apparently peaceful system such as the EU. Precisely because conflicts over interests and principles can never be eradicated, the realist perspective highlights how exceptional it is to secure a certain degree of order and peace in a conglomerate of states. If conflict and disorder are the natural benchmark, achieving peace and order is indeed a major achievement. The second tenet is that order, both before and after its establishment, must continuously be legitimated. This is what Williams (2005) has called ‘the basic legitimation demand’. From a 2 Note that here ‘realism’ is not meant to refer to one of the main schools in International Relations theory (next to neo-liberalism), but rather to the approach that offers an alternative to (mainly Rawlsian) political liberalism in normative political theory (cf. Rossi and Sleat 2014). www.reconnect-europe.eu Page 8 of 35
realist view, any form of order emerges from a balance of power in which the ability to resort to violence and domination is balanced by an effective counterforce. In Hobbes’s analysis, this counterforce is embodied by the overarching societal power of the Leviathan; the Leviathan secures order and peace for all. The willingness of the subjects to accept the legitimacy of the Leviathan relies on the recognition that, however powerful any of them may be, none of them can on its own secure its safety against all others. Thus, some sense of a balance of power, or at least of mutual vulnerability, precedes the very establishment of order. In the establishment of the Leviathan, these counterforces are institutionalised and generalised so that by the prohibition of the exercise of violence by all except the Leviathan, all come to enjoy an equal measure of security and peace. And the Leviathan is legitimate to the extent it manages to provide security and peace. Now, to be sure, the EU does not resemble the absolute and sovereign power of Hobbes’s Leviathan and perhaps it will never even come close. But we can understand European integration as premised on the recognition of the interdependencies and mutual vulnerabilities of European states in the post-war world (Beetz 2017). Recognizing the atrocities and destruction that had been brought about in the absence of a shared order – and operating in the shadow of the greater power that had emerged across the Atlantic – the European states have come to agree to a settlement of their relations. To secure order on the continent, they ‘contracted out’ their external security to the United States and built a European Union to secure their internal order, albeit working less with sticks (coercion) than Hobbes’s Leviathan and more with carrots (rights). This Union is thus deemed legitimate if, and to the extent to which, it manages to secure order and peace between its member states. The third and last tenet goes still further ‘beyond’ or even against Hobbes and is basically the normative idea that, again because of the fundamental realist assumption of ineradicable conflict, the overarching order itself needs to be limited. A new conflict can easily emerge between the highest power and its subjects, in this case between the EU and its member states. This implies that full integration is unfeasible and, indeed, undesirable, as it would dissolve the distinct identities of the constituent parts. By its very attempt to settle conflicts between its subjects, any Leviathan-like order would create a new vertical division between itself and them. In the EU, this is particularly the case when the EU starts bypassing the member states and hands out rights to national citizens. While this may boost the EU’s legitimacy, it also holds the potential for conflicts over sovereignty and power with the member states. In sum, the answer to the first political question for order must always remain partial and temporary and can never become complete and finite. Attempts to finally settle it run a high risk of becoming oppressive, also in the case of the EU. This reading has critical implications for the kind of order the European Union is and the kind of relationship it creates between the member states and itself. Above all, it underlines that any settlement continues to reflect the underlying balance of power. Hence, realists tend to be enamoured with the concept of ‘modus vivendi’ (Horton 2010; Horton, Westphal, and Willems 2019). Typical cases of a modus vivendi arrangement include a truce or ceasefire or a no-fly zone or demilitarized zone in a war-torn country. Notably, modus vivendi arrangements hardly advance beyond the underlying balance of power. While sometimes they are very stable, in most cases they can be quickly upset by the smallest shift in the underlying relations. Modus vivendi arrangements are accepted with only a minimum of consent. In most cases, parties in www.reconnect-europe.eu Page 9 of 35
a modus vivendi arrangement bow to the inevitable; they accept the arrangement, but only grudgingly. Since this is not the case for EU member states, it may be more appropriate to think of the EU as a compromise. Although compromises can vary a lot, in general they go beyond modus vivendi arrangements in that they require the parties involved to show a greater amount of consent (Wendt 2016). Parties agreeing to a compromise have a greater (though never complete) willingness to accept the arrangement than in a modus vivendi, for instance because they see the compromise as being, on the whole, beneficial to their interests if not their values. This corresponds to the way in which Andrew Moravcsik (1998) explains European integration in his liberal intergovernmentalist account. Moravcsik starts from the distinct interests that member states have and the interdependencies they experience (in economic rather than security terms, though). These interests drive them to establish a shared order. Moravcsik emphasizes that the organization of this order reflects the underlying balance of power: states that are already more dependent on international economic relations will concede more than the ones that have less to gain from the agreement.3 The arrangement is not a mere modus vivendi, however, as the member states clearly consent to (i.e., willingly and publicly accept) the order as well. Hence Moravcsik (2005) has come to characterize the European Union as an ‘equilibrium’. The notion of equilibrium speaks to the balance of forces between, on the one hand, the gains that all member states can secure from cooperation and, on the other hand, the diversity of interests that ultimately separates them from each other. In thus highlighting the contradictory forces underlying European integration and the deeply entrenched diversity between the member states, Moravcsik takes direct issue with classical teleological accounts that assume that the logic of integration is bound to eventually supersede the member states as its constituent elements. And while the supposed European equilibrium has been severely tested by the crises that the EU has seen since 2005 (a constitutional crisis, an economic crisis, a refugee crisis, Brexit, and a pandemic), it has essentially remained in place: Brexit apart, the European Union has remained intact, partly because the crises have been met by piecemeal measures rather than a wholesale transition towards further integration. Moravcsik mainly developed the intergovernmental account as an analytical and explanatory approach. In recent years, Richard Bellamy has recast it in explicitly normative terms. Bellamy argues (2013; 2019) that the intergovernmental nature of the EU aligns with a republican understanding of the relations it establishes between the member states. This republican reading recognizes the achievements of the EU in establishing peace and order and in facilitating respect and cooperation between the member states. However, Bellamy also very much underlines the persistence of the deep differences between the member states. He conceives of the EU institutions in ‘demoi-cratic’ terms, so as representing the different peoples of Europe rather than some overarching, common identity. What is more, for Bellamy the member states remain the primary units with the required level of cultural integration and 3 See also Arregui, Stokman, and Thompson (2000) who compare three models of European decision-making (the compromise model, the position exchange model, and the challenge model) and tested them on a database of 154 issues on the EU’s agenda. While finding evidence for all three models under varying conditions and in varying respects, they conclude that ‘the results support to some extent to [sic] the compromise model. This gives credence to the view that legislative decision making in the European Union is based on processes in which information and persuasion are central, and in which actors are willing to compromise for the sake of common solutions’ (2000: 23). This is not a very surprising conclusion, perhaps, but important in light of our discussion. www.reconnect-europe.eu Page 10 of 35
institutional infrastructure to realize republican self-government. The same conditions remain lacking at the European level. For Bellamy, the persistent differences between the EU member states raise a particular concern about the danger of ‘inter-state domination’ (2013: 512). He sees such domination for instance in the euro crisis which gave rise to ‘a system of domination of the creditor over the debtor states’ (2013: 513) (see section 4.4 below). The same crisis also showed that the EU itself can dominate over its member states. Ultimately, for Bellamy, the privileged status of national self-government and the danger of inter-state domination puts a limit on how far the integration of Europe can go. As he puts it, ‘moves away from such a union of peoples towards greater political unity involve an inevitable loss of representativeness and political legitimacy’ (2013: 499). He believes that such representativeness and political legitimacy are effectively secured at the national level. EU member states, representing national demoi, have and retain the actual position and legitimacy to do many things on their own terms. To conclude, a realist and intergovernmental perspective emphasizes not only that the European Union is an order established primarily to secure order and peace, but also shows that the EU has to be legitimated and limited in relation to its member states and European citizens. European democratic politics is an arena in which the EU and the member states continuously play out the struggle over sovereignty in a peaceful manner. The fact that the EU is not just an intergovernmental organization between states but a supranational organization with a direct relationship with citizens makes this struggle even more pertinent. It creates a rivalry between the EU and its member states about the same competences. 2.2 Implications The three tenets of the realist perspective shown before can be directly related to the three roles that states adopt as members of the EU: that of contractors, of subjects, and of authors. 2.2.1 States as contractors establishing order In their role as contractors, the member states come together as political agents. In this intergovernmental role, they act as distinct sovereign entities, exercising their autonomy by establishing a particular political order – a Leviathan of sorts – to secure order and peace on the continent. Contrary to Hobbes’s view, however, member states exercise their sovereignty not just once and for all, but continue to do so also after they have established the EU. They remain active political agents in their own right. This means that they can not only revoke their membership altogether (as we have seen with Brexit) but also try to revise the treaties and recall some of the competences they previously handed over to the EU. They can try to negotiate partial participation in various European arrangements (Schengen, the euro, and other ones), including opt-outs and other special arrangements. This is part of the ongoing political struggle over sovereignty in the European arena. This struggle first and foremost takes place between the EU and its member states, EU citizens are not directly involved in it. Although as contracting parties the member states are democratically legitimated by their citizens, according to various national procedures, these citizens are not contracting parties themselves. The EU treaties are created for them but not by them. www.reconnect-europe.eu Page 11 of 35
2.2.2 States as subjects securing mutual interests Secondly, in their role as subjects, the member states are not so much sovereign agents but rather subordinate ‘takers’ of EU law. They willingly subject themselves to various forms of law: first of all, the treaties, but also other forms of often very detailed EU law. They accept EU law as legitimate, and by accepting it, they further legitimate it. The reason they do so is, as noted before, their sense of mutual vulnerability: they believe EU law can protect them against the domination of the other member states. Accepting EU law creates a level playing field, particularly in the Single Market but also in other domains of EU integration. Such shared laws can be endorsed in terms of justice. However, in the realist view, they ultimately remain a matter of interests and even economic and political survival. In the end, in the realist perspective, the relations between the member states and the EU are a matter of political contestation, not of legal or moral obligation. To the extent that European integration gives rise to common constitutional obligations (as it does), these should be informed by the principle of mutuality. The cooperation between member states is motivated by joint interests from which they all benefit and which they secure by subjecting themselves to reciprocal constraints. This relation of subjection applies not only to the member states, however: the national citizens are also EU citizens and thus direct subjects of EU law. Herein lies an ineradicable source of political conflict, indeed rivalry, between the EU and its member states, because they both make direct, possibly conflicting, claims on their citizens. A simple legal principle of EU supremacy will not solve this conflict, because member states are not just passive recipients of EU law. 2.2.3 States as co-authors resisting EU domination In their third role, finally, the member states are not only the ‘takers’ but also the ‘makers’ of EU law. They act as co-authors of the rules to which they subsequently subject themselves. The fact that they are co-authors and not simply separate authors underlines the cooperative and collective aspect of the European legislative process. Particularly in the Council of Ministers, the member states sit together at a shared table and adopt a new capacity ‘in between’ their roles of intergovernmental contracting parties and subjects of supranational regime. In this capacity, they act as political agents who together determine EU policies and adopt EU legislation. And precisely to make this possible, the EU itself needs to be limited. Domination of the EU over the member states – or of the European Commission and the European Parliament over the Council of Ministers – endangers this kind of political cooperation. The quest for order and legitimacy cannot be settled permanently and unilaterally in the EU’s favour at the expense of the member states. Particularly in the context of the EU, where the supranational order builds on pre-existing and still-extant national orders, the subjection of the member states is limited to the domain to which the common settlement applies. The shared obligations of member states towards the EU go only so far as their express, continuous consent allows for. Indeed, this consent can also – under a given procedure – be revoked. If that were not possible, the member states would be subject to EU domination. Moreover, in light of the republican concern with domination, particular restraint is required to protect the autonomy of national democratic legislatures against possible EU incursions. Member states should be allowed to retain constitutional autonomy to the extent that it is essential for the preservation of national self-government (Article 4(2) TEU). While www.reconnect-europe.eu Page 12 of 35
membership of the EU obviously comes with obligations and removes certain policy choices from the national domain, it has to leave the capacity of national self-government intact. Precisely because citizens are mostly subjects of EU law and do not directly act as its co-authors, let alone as contracting parties to the EU treaties, their political expression and participation at the national level needs to be protected. This view is in line with Bellamy’s (2019) ‘demoi-cratic’ conception of the EU as ‘a republican association of sovereign states’ that limits the chances for domination much more than any other structuring of sovereignty, be it concentrated sovereignty in a unitary state or dispersed sovereignty away from the nation state to other actors. Hence, as long as citizens continue to have a strong political affiliation with their nation-state and as long as the EU has ‘demoi’ rather than one demos, the process of European integration should not advance to the point where it would impair or amend the national constitutional structures and the domestic political processes. By the same logic, the adoption of EU-agreed rules requires an act of acceptance in which reservations that may exist at the national level are balanced against the costs of non-abidance. Such an assessment is informed by the existence of the option to withdraw from the cooperation altogether or to negotiate partial opt-outs, rebates, and exceptions from the shared structure. 3. The EU as an order of cosmopolitan justice 3.1 Characterizing the relationships the European Union establishes The European Union has two kinds of subjects: member states and member state nationals. Usually, this characteristic is displayed hierarchically. EU institutions are placed above EU member states, and these states are placed above their own nationals. However, according to the cosmopolitan conception of the EU developed in this section, this linear hierarchy is inadequate. The EU member states have signed treaties in which they have given each other’s nationals rights, and they have accepted corresponding duties to each other’s nationals. What is characteristic about EU law is that it also applies to the relation between a state and a foreign person. Under EU Single Market law, each EU member state national has equal market rights in each of the member states. The cosmopolitan conception of the EU therefore places the two classes of subjects at the same level. Thus, it conceives of the EU legal hierarchy in triangular rather than in linear terms: in the top corner are EU institutions; states are in one base corner, nationals in the other. The adjective ‘cosmopolitan’ is used here in Kant’s sense. For Kant, the notion of ‘cosmopolitan law’ refers to a category of natural law that applies to the horizontal relation between a state and a foreign person visiting that state. Kant distinguishes cosmopolitan law from the law between persons (within a state; under positive domestic law) and from the law between states (international law). Cosmopolitan law is that which applies between states and foreign persons. It applies to their interactions at the level of the globe, where the earth’s surface is divided up by states and where persons cross borders by choice (travel, commerce, research) or accident (shipwreck) (Eberl and Niesen 2011). Kant’s philosophy aims to determine principles of natural cosmopolitan law that are acceptable to both states and foreigners, but there is also positive cosmopolitan law. Most states have promulgated terms under which foreigners are allowed to enter their territory, migration law. However, each state’s migration law is of unilateral origin; the foreigners who are subject to it have had no say in it (Niesen 2012; Owen 2014). Foreigners www.reconnect-europe.eu Page 13 of 35
who want to visit a state can either accept the terms and enter or not accept them and stay out of the state’s territory. EU Single Market law is also positive cosmopolitan law, as it gives each EU citizen equal market rights in EU states, irrespective of the EU state where this national is located and irrespective of the EU state of which this person is a national. European Single Market law is a special kind of positive cosmopolitan law because it is of ‘omnilateral’ (Ripstein 2009) origin. Migration law can be thought of as illegitimate because it is undemocratic. Not all who are subject to its provisions can be its authors. In the EU both states and their nationals authorize the rules that apply to their relation in border crossing interaction and commerce. EU Single Market law is positive cosmopolitan law that can base its claim to legitimacy on its democratic credentials. The aim of the EU in this conception is to give equal free movement rights to each national. This equal distribution of market rights is a form of distributive justice but not of social justice. It is cosmopolitan justice. It is cosmopolitan justice because it concerns the border-crossing interaction and commerce of Single Market state nationals in Single Market states.4 3.2 Implications In this section we proceed by outlining the most important implications of this EU conception around the three possible roles that states and their nationals can play in the EU: that of contractors, of subjects, and of authors. 3.2.1 States and nationals as contractors States are each other’s equals in the sense that they are not hierarchically related to each other. A state cannot be another state’s master or another state’s subject. A state’s freedom or sovereignty is also understood in this relational sense. It is a state’s freedom of choice to use its available means in the way this state sees fit, as long as it does not violate another state’s freedom of choice. In this subsection we use sovereignty and equality in this relational and normative sense. Since we are interested in the EU, we focus on what states can do with their freedom and, in particular, on what they can do together, through agreements. States can choose to cooperate with each other. They can use their freedom to agree that they shall come to each other’s defence, for example. Treaties in which this is agreed are international in the literal sense that they apply to the relation between nations or peoples, viewed as collectives, who operate through their governments. Such treaties sometimes establish intergovernmental organisations. The typical institution is the general assembly, in which each of the member states is represented. The EU conception adopted in this section views the treaties of European integration as cosmopolitan, not international, treaties because they apply to the relation between each member state and each member state national. The EU and its predecessors should therefore be placed in the class of cosmopolitan unions, not in that of international organisations. 4 The term ‘Single Market states’ refers to states that participate in the Single Market. The term is more inclusive than EU member states, since not all states that participate in the Single Market are EU member states. www.reconnect-europe.eu Page 14 of 35
When states decide to become party to international or cosmopolitan treaties, they do not lose their sovereignty or freedom, just as persons do not lose their civil personality when they decide to become party to a contract. We do not claim that states and persons are identical, only that the relation between persons and the relation between states can be compared: both are relations between equals. States cannot be subjected to each other and neither can persons. A person who sells him- or herself as a slave, would thereby lose his or her freedom and stop being a person, a bearer of rights and duties. Such contracts are not allowed in modern civil law systems, and neither are states allowed to do such a thing in the Kantian approach followed here. States cannot legitimately sell themselves or parts of themselves to other states. States can freely decide to become part of a larger state. Each part of the larger state no longer has the freedom to decide for itself to return to its previous, sovereign status. That is now a question for the whole to decide. The EU is not a state, it is a union. It has sovereign states as members. That these states are still sovereign, can be concluded from the right that they have to leave the Union. The choice to leave is a choice for each individual state to make. When states join the EU, they freely accept certain duties (for instance the duty to not discriminate foreign Single Market state workers), in return for the rights that their nationals receive (such as the equal right to work in other Single Market states), for as long as they themselves see fit. These duties may limit the legitimate options states have (they are no longer allowed to treat their own nationals favourably) and these rights may multiply the options of their nationals (they can now do in other states what they previously could do only in their home state), but all of this does not affect the sovereignty of the contracting states. Sovereignty is not a matter of available options or means, but of the freedom of choice to use the latter in the way the state sees fit. The EU is a way in which states use their sovereign freedom and they can change their minds and use their freedom differently, as Brexit has demonstrated. As far as sovereignty is concerned, it does not matter whether the integrating state chooses to become a member state, and hence has the opportunity to shape with all others EU legislation, or whether it chooses to remain a non-member that has accepted the entire EU acquis with one strike of the pen, as Switzerland chose to do. In the latter instance it is not correct to classify the state in question as a ‘colony,’ to copy the vocabulary with which Boris Johnson qualified a post-soft Brexit UK when he resigned from former Prime Minister Theresa May’s cabinet. 5 Switzerland is free to reject the acquis and leave the Single Market; and it is also free to apply for EU membership and, after admittance, co-author new EU law and so establish a more democratic EU.6 However, Switzerland does not want that; this state has chosen to use its freedom differently. The cosmopolitan legal order of Single Market law, with states and persons as subjects, is not in conflict with state sovereignty. To understand why, one needs to appreciate the distinction between on the one hand the decision to enter or exit the Single Market and, on the other hand, the vote that a state or person has as a participant in the Single Market union. A state, viewed as a host – and its nationals, viewed as visitors – always has the sovereign freedom to 5 The letter is published on https://www.bbc.com/news/uk-politics-44772804. 6 So, the problem with the Swiss (or with the EFTA states) is not an issue of sovereignty or freedom (or its opposite, ‘domination’, as Eriksen (2019) and Eriksen and Fossum (2015) think), located at the level of contracting states, but an issue of democracy, at the level of EU institutionalization. www.reconnect-europe.eu Page 15 of 35
join the Single Market or to withdraw from it. The system of Single Market law can therefore be said to be voluntary. However, as soon as a state and its nationals want in and come together with other states and their nationals, the configuration changes. By the very act of coming together in order to arrange things together (Hobbes 1997: 94), a collective emerges. In the case of the Single Market, this is a collective of states and persons. From the moment of assembly, these states and persons have the right to speak and vote about how to give shape to their Single Market. In this configuration the preference of one single state and its nationals can no longer be considered decisive. The provisions of Single Market law that those assembled adopt, necessarily apply to the relation between each Single Market state and each Single Market state national. Why should the preference of one state and its nationals outweigh the preferences of all the other nationals and all the other states with which this state and its nationals are, or will be, connected by Single Market law? As soon as a state joins others to establish a Single Market, it cannot reasonably claim the right to shape unilaterally the relation it has with all these others. That conflicts with the equality and freedom of states and persons. All should be the authors of the law to which all are subjected (Fraser 2008). 3.2.2 States as subjects of positive cosmopolitan law As indicated, the cosmopolitan conception recognizes that the EU legal order has states and these states’ nationals as subjects. First, states are part of the EU as subjects, so not as governmental executive institutions with their usual discretionary competences, like in traditional intergovernmental organisations. Second, states are subjects alongside their nationals, which are also subjects of the EU. Within the cosmopolitan conception, EU Single Market law is viewed as animated by the objective to distribute free movement rights equally among Single Market state nationals. That objective explains why the system of Single Market law is configured as a genuine ‘legal condition’ (Kant 2017) or ‘basic structure’ (Rawls 1993), with institutions to which both states and persons are subjected. This is required to assure the equality of Single Market rights. That objective requires positive cosmopolitan law to be executed by institutions ultimately independent from both Single Market states and Single Market state nationals. If the application of EU law is left to each state itself, for example, it can never be certain that the rights are the same in different states. Neither can legal equality be guaranteed if application is left to particular nationals (persons with large and powerful businesses, for example). Independent executive and judicial institutions are necessary to distribute cosmopolitan justice. Thus, the cosmopolitan reading of the EU explains the indispensable roles the European Commission and the Court of Justice of the European Union (CJEU) play in the EU. The implication is that a participating state’s administrative and judicial authorities are bound by EU law and are, within the scope of EU law, subjected to the Commission, the executive institution that is independent from member states and member state nationals, as well as to the CJEU. At the member state level, it is the member state’s judicial branch that has to have the final say in questions of EU law that divide union citizens and member state institutions. To guarantee uniform application of EU law, questions of interpretation ultimately have to be settled by the CJEU. This includes questions about the scope of application of EU law. The CJEU and not national courts have to have the authority to answer that question, in light of the Single www.reconnect-europe.eu Page 16 of 35
Market law’s objective to distribute Single Market (i.e., cosmopolitan) justice (Kelemen and Pech 2019). 3.2.3 States and states’ nationals as co-authors of positive cosmopolitan law A legal order is democratic if those subjected to its provisions are simultaneously its authors. As indicated, basic EU law is law between states, viewed in cosmopolitan law as hosts of foreign visitors, and these states’ nationals, viewed as potential foreign visitors. That law, governing the horizontal host-visitor relation, has to be authored by both the states and persons involved (through their representatives) on an equal basis. This means that the view of the EU as a cosmopolitan union requires an institutional structure according to which states and these states’ nationals occupy equal positions in the legislative process, at least with respect to all issues that concern positive cosmopolitan law. The EU treaties aim to constitute such a democratic polity. Its two subjects are represented in the two legislative institutions. The representation of states’ governments in the Council means little, however, if these governments themselves are not ‘accountable to’ their parliaments (Article 10(2) TEU) and if the representatives in the national parliaments are not chosen in a free election. Union citizens, in turn, are represented by their representatives in the European Parliament (Article 14(2) TEU). Also this representation is immaterial if these representatives are not freely elected (Article 14(3) TEU). If a member state government is not accountable to a freely elected parliament and if elections for the European Parliament (which are organized per member state) are not free and fair, then the EU legislature, which consists of both the European Parliament and the Council of the EU, cannot claim to speak for all EU member states and all EU citizens and, consequently, fails in light of democratic standards. For long, the Council, in which states are represented, held far more powers than the European Parliament, in which these states’ nationals are represented. Over time, this gap in powers has been reduced (Rittberger 2005) and since the Treaty of Lisbon, the Council and the European Parliament have become as good as equal co-authors in the adoption of EU legislation, at least with respect to Single Market law. In EU political theory, the need to have states’ and citizens’ representatives, in the Council and the European Parliament respectively, operate on an equal basis has been vehemently defended by Habermas (2011). However, while Habermas offers a reason for seeing states and persons as the EU’s two constitutive powers, he offers no reason why they have to be viewed as equal constitutive powers. The view of the EU as a cosmopolitan union defended in this section can explain why this is required. Basic EU law governs the horizontal relation between states (as hosts) and persons (as visitors). These rules applying to the horizontal host-visitor relationship have to democratically legitimated; that is, have to be authored by the parties on both sides of this relation equally, that is, by states and persons equally. Under EU law, each person plays the role of host, together with all the other nationals of his or her state, and the role of potential foreign visitor, with all nationals of all participating states. The democratic institutional form of the union has to reflect this relation and must hence consist of two legislative institutions or chambers, in which respectively the states as well as these states’ nationals are represented, and both must have equal influence. Only then is the EU truly a cosmopolitan ‘representative democracy’ (Article 10 TEU). www.reconnect-europe.eu Page 17 of 35
4. Evaluating controversies regarding EU democracy and its relation to member states This section turns to the five EU constitutional controversies that we identified in the introduction: suppression of political pluralism (Hungary); the violation of judicial independence (Poland); controversies of central-level supremacy (Germany); policy conditionality for bail-outs (Greece); and differentiated integration (Brexit). We use these controversies essentially as a mirror for the two approaches, and we make an initial assessment of the way in which the two readings of the EU would approach the issues at stake. We go beyond presenting the two approaches as simple opposites of each other, and also try to see whether they can somehow be seen as complementary or part of a continuum. It may well be that the balance between the two approaches differs according to the controversy. Yet, we hope to identify a shared logic across the controversies that gives a sharper and more nuanced insight into the nature of the EU, the relationships that it establishes with the member states, and the democratic obligations embedded in it. The different readings of the EU also have an influence over the processes and instruments to be mobilised to address the different controversies, a dimension that is also included in each of the controversies discussed in this section. 4.1 Suppression of political pluralism in Hungary Since Viktor Orbán, leader of the Hungarian right-wing party Fidesz, became prime minister for the second time in 2010, there has been an increasing concern over the suppression of political pluralism; not only in Hungary, but across the EU (Kelemen and Pech, 2019). The key conundrum that is raised by the case of Hungary is what the EU and its member states should do to address a government that removes the conditions that allow its decisions to be challenged, and that make it almost impossible for the government to be voted out of power through elections. The measures adopted by the Fidesz-regime – reforming the electoral law, concentrating all the political power in its own hands, disabling critical media and delegitimising critical NGOs – all add up to removing the preconditions for the viability of any effective opposition (Enyedi 2018; Bárd and Pech, 2019). There is little doubt that this undermines the pluralistic nature of the political process and that it is hard to qualify Hungary as a democracy these days, which states are supposed to be if they want to join the EU. In fact, Ágh (2015; cf. V-Dem 2020) has qualified Hungary as an ‘electoral autocracy’, a qualification that seems very much justified. While there is little doubt that Hungary would have major trouble to qualify for EU membership if it were to join today, it is less clear what consequences, if any, the government’s suppression of political pluralism should have now that the country is already a member state. Article 7 TEU allows for the suspension of voting rights in the Council, but the activation of that clause is subject to major institutional hurdles, especially since Hungary can count on at least one other government (Poland) that is bound to stand with it. Proposals are currently on the table to withhold EU grants from countries that violate the rule of law and democracy. The question is whether these sanctions will come with fewer institutional thresholds. Furthermore, one may ask whether such financial sanctions are appropriate and whether they do indeed hurt the envisaged members of government or rather affect ‘innocent’ citizens. www.reconnect-europe.eu Page 18 of 35
The suppression of political pluralism affects states in their roles as subjects and authors of EU law. Taking this into account, even though the intergovernmental perspective would oppose the presence of non-democratic member states in the EU, it would be very reluctant to interfere in domestic politics. The intergovernmental perspective recognizes that member states operate by widely divergent procedures and traditions, and that what is perfectly acceptable for some might be regarded as fundamentally unjust in others. As Bellamy (2013: 508) puts it, referring to Articles 2 and 4 of the TEU, ‘the commitment to democratic values goes hand in hand with respect for the ways these may have been configured differently by the various peoples and that as far as possible decisions ought to be taken by each people’. A high degree of constitutional tolerance implies that intergovernmentalists are inclined to regard most disagreements as political or even ideological disagreements (in this case, of ‘illiberal democracy’ versus ‘progressive-liberal democracy’), and that they are reluctant to have them framed as matters of the EU order. The question is then whether the political position promoted by the Hungarian government is so much beyond the pale that it requires an intervention from the EU level. Fellow governments ought to tolerate Hungary as one of their own and one that can potentially cast a decisive vote. At the same time, precisely for this reason the EU itself and the other member states will demand that all states respect democracy. Therefore, even from the intergovernmental reading, the suppression of political pluralism in Hungary could be understood as a challenge that affects the EU as a whole. If the suspension of democracy in Hungary goes as far as to ‘spoil the well’ of collective EU decision- making, the activation of Article 7 TEU could also appear as the appropriate response from the intergovernmentalist point of view. If this would fail to re-align Hungary, and if the EU and the other member states would be unwilling to compromise with Hungary, some modus vivendi arrangement could be found. This is uncharted legal and political territory and the precise form of such an arrangement is as yet unclear, but one could think of a situation in which Hungary would be tolerated as a rule-taker in the EU as long as its representatives would not play an active role in EU decision-making. If that would turn out to be impossible as well, then the ultimate political option would be the forcible expulsion of this member state in the heart of Europe. In contrast, once we turn to the cosmopolitan perspective, there is much less ambivalence in addressing the issue. From this perspective, there is little doubt that the Hungarian government’s co-optation of the political system poses a problem for EU democracy as a whole. The EU is organized as a union that is a representative democracy; with states (hosts) and their nationals (visitors) represented in the Council and the European Parliament, respectively. If elections held in Hungary cannot be trusted as free, it is no longer evident whether the Hungarian state, i.e. the collective of Hungarian citizens, is actually represented at the EU level in the Council. Nor is it clear whether Hungarian nationals are actually represented in their national parliament or the European parliament. What is more, the tinkering with Hungarian democracy also affects the reliability of the rights that other member states’ nationals are supposed to have protected for them by the Hungarian government. In consequence, from the cosmopolitan perspective, an intervention from European institutions that protects democracy in Hungary from the Hungarian government is not only legitimate, but necessary. As states are also co-authors of cosmopolitan law, violations of democratic processes in one member state are inherently violations of EU democracy. In practical terms, the cosmopolitan perspective would address the Hungarian challenge by not www.reconnect-europe.eu Page 19 of 35
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