Year XLIX, 2007, Number 3, Page 161
The Foundations of European Democracy
CHRISTOPHE CHABROT
Democracy is, without doubt, one of the fundamental questions facing the European Union. It is a question to which it must, above all, find a credible answer. While it was Robert Schuman, in his speech of May 9th, 1950, who predicted the creation of a European federation, it is we who must give this federation its shape and substance, both legal and political. And the creation of any kind of European federation — European state — must, first of all, deal with the question of democracy.
Starting in 1957, major efforts were made to democratise the European Community, and this has indeed been achieved on a number of levels. The European Parliament is now elected by direct universal suffrage, has extended its powers in the ambit of the codecision procedure, which is very similar to a traditional legislative procedure, and exercises control over the European Commission, being called upon to approve or reject the nominations for President and for the Commissioners, and to monitor the activity of the Commission itself. The role of the European Parliament emerged particularly clearly when the Santer Commission resigned in 1999, for example, and also during the appointment of the Barroso Commission, when the nomination of Buttiglione was rejected.
Similarly, no one can deny the growing importance of the European judiciary and the influence of their pronouncements on the observance of rights, the hierarchy of norms and the protection of freedoms, which are the foundations of any democracy. The European system of law, whose democratic nature was confirmed by the German Constitutional Court with its Solange I, II and III decisions, continues to influence deeply the national bodies of law, above all with regard to the safeguarding of the rights of defence and the independence of the courts.
With regard to transparent decision making, European democracy has made important advances. The Commission, whenever it draws up draft proposals of acts, launches extensive rounds of consultations, in particular of “civil society”, regularly publishes its findings, reports and studies on the Internet, and every year issues a long, pedagogical account of its activities. The Council, meanwhile, is becoming more and more open, circulating details of its activities, even though its decisions are still taken behind closed doors. At national level — this applies in France at least — increasingly efficient circulation of information about European activities is guaranteed by the government, but also, and above all, by the parliamentary delegations that regularly catalogue the legislative activity of the Union and publish very detailed studies and reports.
The adoption of the European Charter of Human Rights and the undertaking, by the Commission, the Parliament and the Council, to respect this charter in spite of its non-binding character have led to a strengthening of democracy in sectors hitherto untouched by Community law (labour law, the environment, animal welfare, etc.). The improvements proposed in the 2004 Treaty establishing a Constitution for Europe and appearing again in the 2007 “Simplified Treaty” — meetings of the Council have now been opened to the public, for example — have had the dual effect of increasing both the democratic transparency and the accountability of the European institutions. In the same way, in the wake of the important Laeken Declaration there have been calls for a further strengthening of democracy within the EU.
And yet, the more democratic the Union becomes, the more this democracy is called into question. The more powers and electoral legitimacy the Parliament acquires, the more abstention there is at the European polling booths (the abstention rate was 37 per cent in 1979, rising to 54.3 per cent in 2004). The citizens are not reassured by the work of the European Parliament, in spite of its securing several victories over the Commission, and they continue to accuse Brussels bureaucrats of deciding everything without being accountable. The re-emergence of nationalism and the increase in identity-based demands both seem to be condemnations of the European illusion. In short, the prospect of founding a true political, and thus democratic, European state seems to become more remote by the day. Criticism of this kind, targeting false European democracy, was particularly strong during the French referendum campaign of 2005, when the creation of an Ombudsman, of a right of petition and of a participatory European democracy were all denounced as merely palliative measures, incapable of addressing the real democratic issues.
Thus, we are faced with a paradox: the more democracy spreads within the Union, the more it is criticised. This is a fundamental problem, because how can a European federation possibly be formed in the face of such a lack of faith? And above all, what kind of democracy will be capable of recovering this lost faith? To answer these questions, we have to go right back to the roots of the problem. We must ask ourselves what democracy really is, what it is based on, before moving on to the question of the possible foundations for the establishment of a true democracy at European level.
Democracy Is a Political Idea.
According to its original definition, democracy is a political system that attributes decision-making power to the greatest number of people, to the “demos”. Aristotle contrasts democracy with oligarchy, pointing out that democracy is “the greatest number of the poor that govern”,[1] not a small number of the rich. In his speech at Gettysburg on November 19 1863, Lincoln, inspired by Pericles, translated the idea of democracy into modern terms, defining it “government of the people, by the people, for the people”;[2] this definition also appears in art. 2 of the French Constitution of 1958.
Today, of course, a definition of democracy will include other criteria, in some ways unconnected with the original definition we looked at above. Hence, modern democracy is also based on observance of fundamental rights, on a certain hierarchy of norms, and on the independence of the courts that monitor and control the decisions taken by the popularly elected rulers. Democracy, understood as the principle of the legitimisation of the power by the people (legal state), must be perfected with democratic control of the institutions (rule of law), otherwise it runs the risk of turning into demagogy.
But it is important not to confuse democracy with democratic functioning. There indeed exist many organisations that are organised in a democratic fashion, in which, in particular, provision is made for the election of their managing bodies (universities, company boards, public institutions), but are not actually part of the concept of democracy. In fact, the concept of democracy is, in essence, linked to the concept of politics. Democracy is a form of political government of a political community.
Confronting the question of democracy within the EU thus means examining the political — or otherwise — nature of this union. The political nature of a democratic organisation depends essentially on two criteria, and these must be clearly understood: first, there has to be a link with a political people or “demos”, which can give a political dimension to the current democratic power; second, that power must be concerned with the general management of the interests of the State. If these two criteria are not met, if the direction of the group is not based on these two general principles, then the society in question will be democratic only in its functioning, and not in its political essence. This is the problem that today’s Union, in search of an identity, must confront.
Democracy Is Founded on a Political “Demos”.
Democracy, broadly speaking, is a system of government that, directly or indirectly, involves a group’s members, or most of them, that is to say the “demos” in the decision-making process.
Originally, “demos”, in a democracy, had a special meaning, referring to a global unit, to the theoretical union of all the members of the group beyond any distinction that might be based on social or professional criteria, ethnicity, physical traits, economic position, etc. This “demos”, then, was the people, which was defined as sovereign, in that it formed the basis of legitimacy and of power. This “demos” can of course fail to embrace the whole of the population, and may thus exclude juveniles, foreigners or, in different historical eras, women, slaves, blacks, the illiterate, the poor, etc. In this sense it differs from the “laos”, that is from the people understood in the broadest sense of the word. But even when the “demos” does not include the whole of the population, and leads for example to census-based elections, it is still deemed to represent the whole of the population and to speak on its behalf; in other words, it is regarded as the expression of the whole community, understood as a single entity.[3] When, in this way, the “demos” is considered the equivalent of the people in a democracy, the citizens who are members of it are granted rights directly linked to the management of the destiny of the community: the rights to vote and to be elected, the right to fulfil certain public functions, to contribute to the defence of the State, the capacity to act, etc.
This is what distinguishes democracy in the highest sense of the word from the various democratic forms that may be assumed by forms of social organisation generally. Thus, while institutions or groups, like universities, members of professional categories or of a church, or the workers in a firm, can be democratically organised, there exists no such thing as a university people, a medical people, a Catholic-Muslim-Orthodox people, or a people of workers. The very concept of people refers to a community considered as a whole unit, above and beyond the interests and particularities of each of its members; it does not refer to a specific group within the global community, defined by particular professional, religious or social characteristics. It is because it has a relationship with the people, and thus with the holder of sovereignty, that democracy assumes the political character that distinguishes it from democracy understood as a mere method of decision making.
This political character is precisely what is currently lacking in European democracy, as is shown by many aspects of the Treaties on which the Union is based. First of all, in a legal sense, the members of the EU are, in fact, not people, not potential citizens, but rather the states that signed the Treaties on which the Community and the Union are based. Legally, then, the European Union, being an international organisation, albeit sui generis, is a body of states, not of individuals. Individuals are, at most, only the Union’s indirect beneficiaries, for whom the member states have established certain rights and duties. And since the European Union is a union of states, this means that there exists no European society of individuals that can serve as the basis for the building of a political entity.
It is possible to find, in the Treaties, very occasional references to individuals, but these are certainly not enough to allow them to be thought of as true citizens, in the political sense of the word. Article 2 of the Treaty establishing the European Community endorses the general principle of equality of the sexes, article 13 prohibits any form of discrimination on the basis of race, sex, religion, age, disability or sexual orientation, and article 14 establishes the principle of the free movement of “people”. But these rights and duties apply both to European citizens and to foreigners and thus do not refer in any way to the concept of the political community.
It is true that the second part of the Treaty establishing the European Community is devoted to the question of “citizenship” of the Union and affirms that “Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby”. But at this point a rather pessimistic consideration has to be advanced. This citizenship “of the Union” is, first of all, mentioned only in the Treaty establishing “the Community”, and thus does not seem, from a legal point of view, to extend to the more political second and third pillars. Furthermore, it has to be underlined that these “European citizens” are not defined as members of the Union (as we have seen, it is the states that are the members of the Union), as founders of the Union, or even as the subjects from which the Treaties originate. In reality, they are merely the recipients of the provisions contained in the Treaties. Clearly, then, we are poles apart from the concept of citizenship in a political sense, according to which the citizen is the founder of the political community, part of the original holder of sovereignty, and the very source of the power and the policies that are conducted in his name (and certainly not the mere holder of rights graciously granted him from on high). It must also be pointed out that possession of citizenship of a member state, the criteria for which are still decided by the national authorities,[4] is the only requisite one needs to fulfil in order to have European citizenship, according to article 17 of the TEC. This means that people not in possession of civil rights in their own countries (such as minors or prisoners stripped of their rights) can, theoretically, be considered European citizens. This difference shows clearly that European citizenship is not designed to be citizenship in a political sense.
Certainly, the rights granted to European citizens are rather limited: they are, basically, the right to vote and the right to run as a candidate in the elections of the European Parliament (which, moreover, cannot even be considered to represent the European holder of sovereignty). These elections are thus nothing more than an instrument for choosing the members of a technical body that is allowed to play a partial role in the decision-making process only thanks to the benevolent and gradual agreement of the member states that took this decision at a European Council meeting in 1976. The other rights held by the European citizens are equally limited. The right of a European citizen to vote and to run as a candidate in municipal elections held in his or her member state of residence, for example, has no real, theoretical justification, given that these local authorities are not connected in any way with the working of the Union. Included in the 1994 Directive, this right was simply introduced as a corollary of the rights of free movement and establishment. But the directive fails to explain why it is not extended to other local elections. Similarly, most of the rights held by the citizens are also held by other foreigners resident in the European Community: the right to petition,[5] the right to lodge a complaint with the European Ombudsman,[6] the right to freedom of movement.[7] Conversely, the right of establishment in another Union member state, which article 43 assigns only to citizens of European member states, and thus to European citizens, is not expressly cited among the rights that derive from the status of European citizenship itself, even though it is traditionally counted as one of them.
Otherwise, the Treaty establishing the European Community tends to view individuals in a variety of capacities: as consumers who enjoy certain rights, as entrepreneurs or employees subject to certain obligations, as lobbyists, and as workers who must not be subjected to discrimination. And accordingly, they can expect to encounter many differences of treatment, which depend on their geographical position (for example, on whether they are inside or outside the Schengen area, or on whether or not they come from regions that benefit from structural funds) or on the professional category to which they belong (one may think, for example, of the subsidies granted to farmers). In short, there is no such thing as a true citizen of the European Union in the political sense. Individuals are, rather, viewed in their specificity, and even in those instances in which they are not considered purely in specific terms, it is never from a political perspective. European citizenship amounts only to an undefined catalogue of rights that have no connection with membership of a proper political community. As stated in the European Charter of Fundamental Rights adopted in Nice in December 2000, the Union “places the individual at the heart of its activities, by establishing the citizenship of the Union”. The citizen is thus just a person who merely benefits from the action of the public powers, not the holder of sovereignty that gives legitimacy to the holder of power and guides its actions. Once again, what we encounter in the activities of the Union is the absence of a political dimension.
Democracy Implies a Political Authority.
Politics is a concept that rests on another generalisation, and it is this: that which concerns the global management of the interests of the group, or holder of sovereignty, that is to say that which concerns the general running of the community, is by definition political. This does not mean that decisions cannot be taken which regard only a section of the whole community, such as pensioners, motorists, homosexuals etc. Such decisions can be taken, but they are, nevertheless, decisions taken in the general interest, and the general interest not only concerns society as a whole (defence of the territory, citizenship etc.), but can also concern just a small number of individuals, when the matters in question are ones that affect the life of the community (marriage, professional codes etc.). It is the era, the social context, and the political choices of the holder of sovereignty that make it possible to establish what the interest is, and that allow the legislator, on behalf of the holder of sovereignty, to intervene and regulate these sectors. Similarly, it is the nature of the group that determines the nature of the general interest at stake and of the authorities that are called upon to define it: the main car park in the city of Pavia is, of course, a matter relevant only to motorists in the city of Pavia and one that is within the competence of the local authorities, whereas the organisation of the Italian judicial system is a matter of national interest that implies the political intervention of the legislator. In both instances, it is the interest of the group in question that allows decisions to be taken that apply to everyone, decisions that are political in nature in one case, but not in the other.
This link between political nature and the general interest has many consequences. The general interest, considered at its highest level, is what, first and foremost, prompts the authorities to intervene in matters crucial to the life of the community, the most important matters, leaving it to the administrators to deal with the less important or more sectorial questions. Second, the authorities entrusted with the management of this general interest must enjoy a certain freedom of choice. They must have the legal capacity to determine freely what is in the common interest and what is not. In other words, they must have the kompetenz-kompetenz beloved of German doctrine, that is to say, the competence to determine the sphere of their own competences. In the framework of these competences, they must then be free to make the choices needed to manage the general interest itself.
These conditions, just set out, are not respected at European level, and this makes it impossible for the European Union to pursue any political ambitions and renders futile any efforts to create a true democracy. These limitations emerge clearly in three areas: in the competences attributed the European authorities, in the separation of the powers responsible for the management of these competences, and in the freedom to act within these sectors.
With regard to the first aspect, the European Community was initially conceived of as an economic-type organisation, be it within the coal and steel sector, the atomic energy sector, or the sector of trade generally. The political objective of creating a European federation is well concealed behind the various forms of economic interdependence established in the sectors of agriculture, fishing, transport, and competition. Gradual advances in the latter part of the twentieth century, which have extended the European institutions’ sphere of intervention to sectors that concern the Union’s collective future (the environment, public health, education) and to politically sensitive issues (immigration, currency) must be looked upon favourably. In 1992, the Community ceased to be purely “economic” and acquired the potential to become a political entity. But the enlargement of Europe to embrace states that do not share this objective jeopardises this process, with the risk that the Union could be reduced to the status of a large financial or commercial organisation. After all, “the Europe of projects”, which was put forward as a way out of the crisis triggered by the French and Dutch rejection of the Constitutional Treaty, by proposing actions and setting targets in specific sectors (aeronautics, transport, European patents, the fight against terrorism, etc.), firmly places the idea of a non-political Europe on the table, not that of a society that shares a common destiny.
The European Union created in 1992 has tried to extend the field of Europe’s competences to more clearly political areas, such as the judicial, police, military and diplomatic spheres. But this extension of competences, still tentative, has remained outside the ambit of the European Community, where there has been more integration and real transfers of sovereignty. This resistance on the part of the states returned to the fore at the time of the drawing up of the 2004 Treaty, and it stops the Union from dealing directly with the most important common political problems, even though, in view of the new security demands the public powers are now advancing, there is a possibility that this situation could change.
As regards the second aspect, the separation of powers, is it possible that a “return of politics” at European level and the new common project proposed by French president Sarkozy can reverse this trend? For this to happen, changes would have to be made to the very organisation of the Community. Because, in fact, when the functional division of roles was worked out in 1957 no reference at all was made to the classic separation of powers that is the basis of political democracy. It is true that international organisations are not founded on a holder of sovereignty, and that they are not required to respect modern constitutional criteria. But if it wants to become a political entity, the European Union will have to put a stop to its current practice of entrusting both legislative and executive power to the same organs, without drawing clear distinctions between the various norms.
Indeed, one cannot talk of the separation of legislative and executive powers at European level. It is always the Council and the Parliament that issue not only the basic regulations and directives (the equivalent of laws at national level) but also the implementing regulations and directives (which are like the administrative regulations in the national setting). Furthermore, they are also the ones that take the decisions directed at individuals, whereas at national level these decisions are taken by the administrative authorities. The entry into force of the 1986 Single European Act made it possible for the Commission to be invested with the power to implement acts, but only when this power is conferred on it by the Council and only under the direct supervision of committees appointed by the Council. In this way, the executive power remains in the hands of the Council (article 202 TCE).
Articles 1-33 to 1-37 of the 2004 Constitutional Treaty made a complex distinction between general norms that fall within the competence of the legislative power (laws and framework laws) and non-legislative implementing norms, European and national (regulations, decisions, delegated regulations and implementing regulations). But this distinction still allowed the legislative authorities, the Parliament and the Council, to adopt simple implementing acts, and the power of the Commission to adopt such acts was still exercised subject to the revocable delegation of that power by the legislative authorities. Political organisation has to be simple if it is to be clearly understood by the citizens, and the complex system just described does not meet this need. To achieve political clarity, which underpins the principle of the accountability of our rulers, it thus seems necessary to go back to a more classic scheme of hierarchy of norms and separation of legislative and executive powers, drawing inspiration from the experience of the federal states.
A quite different problem is the attempt to lay afresh the foundations of the whole constitutional theory of the separation of powers, which, after all, no longer reflects the way power is exercised. From this perspective, it might be feasible to distinguish between four different powers: a “consultative power” which would be responsible for gathering social consensus, a “normative power” which would establish the general and implementing norms, a “power of dispute” which could oppose the issuing of norms, and a “power of control” made up of judges responsible for overseeing the correct application of the law in the hierarchy-of norms framework. In this way, depending on the level of integration wanted, the legislative power would be assigned to national representatives and the power of dispute to the representatives of the Union, or vice versa, in the framework of new legitimate organs still to be invented. However, this paper is not the place to pursue these reflections in any greater depth.
The last problem to consider concerns the freedom of action of the established authorities. The concept of politics indeed implies that the legitimate powers be free to govern according to their own choices, which are sanctioned by the holder of sovereignty. Consequently, they must enjoy real freedom of action to set up their programmes and pursue their aims. It is this freedom that is the essence of the political contest between parties, with their different visions of government, and which allows the citizens to make choices about their society through truly meaningful elections.
Instead, in the present European Union, any expression of political will comes up against restrictively interpreted frameworks and procedures, which limit this freedom. The monetary policy pursued by the European Central Bank is an excellent example of this: according to the terms laid out in article 4 of the Treaty of Rome, the ECB’s monetary policy must have a sole objective, to keep prices stable, and it must not, for example, be conducted with a view to boosting consumption or employment levels. In the same way, monetary policy must fulfil the very precise criteria set forth in Title VII of the Treaty establishing the European Community, criteria that leave the competent authorities with very little room for manoeuvre. Similar restrictions can be observed in the fields of agricultural and fiscal policy.
Hence, the fact that the Europeans can elect their own Euro MPs is of relatively little importance; indeed, the political avenues open to these representatives of the member states are relatively meaningless, too, since any real expression of political will is bound to clash with dogmas and principles institutionalised by the Treaties, which are no longer up for discussion. These stifling constraints are preventing a truly political concept of European power from evolving. But it must be recalled that these are constraints that were imposed by the states that signed the Treaties, which feared that the Union’s institutions might become too political. The question of a European political power is thus directly linked to that of whether the states can accept the creation of a new, coexistent centre of power.
In short, it is true to say that a genuinely political conception of democracy has yet to be realised at European level. But since every problem has a solution, what we must do now is draw attention to the conditions that must be in place before a real and credible European democracy can be established.
The Conditions for a True European Democracy.
Is it conceivable that the EU’s future development might stem from the same things that underpinned the founding of its member states? Put another way, must the building of European integration in the twenty-first century take as its model the processes by which the states of the past were established? It would appear not. Today’s post-modern society, the change in the global scenario after the end of the Cold War, the new modes of production and marketing, and thus of socialisation, and the affirmation of the fundamental rights of individuals and groups, all point instead towards the emergence of a more flexible society, a society more respectful of people and groups and less authoritarian. Most important of all, European integration today is pursued in the absence of a clearly identified common enemy, and without the use of military force by one power against another, making it an almost unique experience in the whole history of state building. In these conditions, it is certainly hard to imagine that it might be possible to impose an unequivocal idea of the European Union. Instead, the approach to the building of Europe is now one based not on imposition, but on negotiation among equals and on the voluntary relinquishing of national competences, with the risks implicit in this. It is thus a process that cannot be compared to the creation and constitutional organisation of the modern states.
And yet, democracy, in the political sense of the word, must not be excluded at European level purely on the pretext that European democracy could never be the same as state democracy. If a relationship of trust is to be created, or re-created, between the Union and its inhabitants, and if Europe and its rulers are to enter into a political pact with each other, then provision must be made for a few concrete changes to the way the institutions operate and to the way the Treaties are drawn up. But only the acknowledgement of a genuinely political authority underpinning the Union can lead to the creation of a true democracy, a democracy in the noblest sense of the word, and this is essential in order to win the citizens’ support for the project. In this regard, there are various hypotheses that can be advanced.
Re-defining the Competences.
Every organisation is designed to pursue its own objectives, taking into account its history and the external factors that may influence it. In 1951, the desire to establish a form of economic interdependence among the historically warring European states led to the creation of a European organisation designed to regulate competition in the key coal and steel industries, a move that was inspired by the International Steel Agreement of 1926. This first, material, objective thus led to the establishment of a European institution, called the High Authority, that had far more powers than the current Commission enjoys. The second objective was more political and it led to the creation of a parliament that, technically, has no place in an organisation like this: not having any real power, it cannot be the representative of any people. But its existence has made it possible to lay the foundations for a future political evolution. The creation of the ECSC, followed by the EEC and the EAEC (Euratom), thus fulfilled two main objectives, and the horizontal and vertical division of the competences reflects the complexity of the situation in post-war Europe. These bodies were not designed according to the classic concept of the separation of powers, but according to a much more functional approach that sought to achieve a new balance between the powers and the counter-powers: the body that establishes and defends the interests of the states, the Council, does not have any power of legislative initiative; on the other hand, the Commission, which does have this power, is more geared towards defending more ambitious and unifying Community interests, but it does not have ultimate decision-making power.
Today, then, the question that must be asked is whether this functional and symbolic separation of powers and competences should be maintained in a 27-, 29- or 30-member Europe that wants to behave like a state, or whether instead it should be improved or thought out anew. It all depends on what kind of Europe one wants to create. A European Union that is nothing more than a large common market, or a purely economic Europe, does not demand much in the way of a democratic process and can happily settle for the presence a group of experts controlled by the stakeholders, be these consumers or users. A union in the scientific field demands funding, first of all, and the creation of research networks linked with the sector’s most innovative enterprises. A union in the field of industry, on the other hand, can easily be based on simple agreements between states and major industrial concerns, like the EADS, without implying the need for a democratic process. In these cases, the Parliament can merely act as an observer, without having to demand real powers or real legitimacy.
But a political union needs real, democratic guarantees, particularly as regards the exercising of competences and the division of roles between the federation and the federation’s member states, and between the different European institutions in question. Of course, before a political entity can be built, its nature must be clearly established; this is the first condition. To this end, it is becoming more and more urgent for the Communities and the Union to merge into a single organisation, a move that would still allow provision to be made for different procedures in different sectors — this is what already happens with the three pillars of the Union, and is what was foreseen by the 2004 Treaty. Without such a move, people would be faced with a new construct as complex as the current Union and European Communities, and how might they be made to accept it?
Second — this is certainly another condition — an anomaly which has existed since 1957 must be rectified. In all federal states, the most important competences, those that concern society as a whole, are assigned to the federation, while the more sector-based policies are entrusted to the lower levels of government. Hence, education, territorial planning and health, for example, are the responsibility of the cantons in Switzerland and of the Länder in Germany, whereas currency, citizenship, fundamental freedoms and justice are all matters dealt with at federal level. In the European Union, the situation is the reverse: sector-based policies, such as those relating to farming, fishing and transport, are managed at European level, while defence, justice, and diplomacy continue to be handled by the nation-states. Clearly, no “European people” or any other kind of political “demos” can be created on the basis of European agricultural production quotas and driving licences; Europe can become political only through its exercising of political competences and of a truly general and clearly affirmed interest.[8] In assuming responsibility for these political questions, the Union will have to be supported by a genuine political democracy, to compensate for the transfer of sovereignty from the member states to the Union.
Clearly, it is not easy for the states that are party to the Treaties to delegate these political competences and strip themselves of most of their power, and it is thus predictable that they should attempt to slow down the growth of democracy prompted by this transfer of competences to European level. But there can be no underestimating the huge force that would be unleashed by the incorporation of the more political second and third pillars into the Treaty on European Union, with the medium-term objective of creating, for example, a European army or single diplomatic corps. The next treaty that may be defined truly unifying will be one bold enough to bring about this change in scope and it will necessarily usher in a genuine democracy, a source of legitimisation and control.
As another step forward towards democracy, the European authorities, as already underlined, need to be able to make decisions without being excessively conditioned by the restrictions contained in the Treaties, which deny them the faculty to choose. The 2004 Treaty did not make any changes to the third part, which covers Community competences, as the Giscard Convention had not been instructed to simplify this part. But it is becoming increasingly difficult to build a political entity on the basis of a “constitution” comprising 448 articles as well as several dozen declarations and protocols, and whose annexes, for example, even go so far as to specify singly the products affected by Council decisions in the agricultural sphere (pork fat, beetroot sugar, cocoa, vinegar, hemp etc.). The current EC Treaty, with its 314 articles and various attachments, is no more reassuring.
What is needed, therefore, is a drastic slimming down operation. In actual fact, the essential provisions on the division of competences are contained in five articles, from 2 to 6. These articles certainly need to be completed, but there is not much that needs to be added to them. If it could be established which sectors are the exclusive competence of the Union and which belong to the area of shared competences, and if general guidelines could be set out on the exercising of the competences themselves, then the institutions would be given room to exercise a measure of flexibility in their decision making; this, in turn, would allow the emergence of broad political orientations, from progressivism to conservatism, from right to left, a development that would surely favour the growth of democracy.
Furthermore, the power of control over the Commission ought to be reviewed. In fact, according to article 201 of the TEC, the direct control exercised by the Parliament over the Commission refers only to the latter’s “activities”, that is, to its good use of public money and correct management of the Community budget. The Parliament can, of course, also set up Committees of Inquiry (article 193 TEC) and put questions to the Commission, orally or in writing (article 197), but these measures of control do not imply any accountability of the Commission. It must also be underlined that no provision is made for similar procedures within the Council. The Council can monitor the Commission through committees, set up precisely in order to control the exercising of the implementing powers it has conferred on the Commission, but it is still a limited form of control. What is lacking is a truly political-type control, such as the no-confidence motion typical of all parliamentary regimes.
It is true that the Commission does not enjoy real, autonomous decision-making power. But, on the other hand, it is the only institution, or almost the only institution, to have powers that allow it to propose acts and to accept parliamentary amendments,[9] and as a result it is able to influence directly the policies carried out at European level. Similarly, through recourse to rulings, permits and the procedures that it is able to institute in its capacity as guardian of the Treaties, it can conduct its own strategy on competition. But these actions are not really part of the “activities” of the Commission that are subject to Parliamentary control. Furthermore, if control of the Commission’s implementing powers remains within the framework of comitology, then this means that it is required to answer for its actions only before teams of experts and not before people elected by the European citizens, and this is something that only adds to the sense of political unaccountability.
Basically, the essential condition, which must be the basis for all the reforms needed to bring about a genuine state of democracy, is the ordaining of a true political “demos”, a sovereign body, a figure that today is embodied neither by the member states nor by the “citizens of the Union”.
In Search of a European Holder of Sovereignty.
European citizenship might sound like a major step forwards, but from a legal point of view it is meaningless. Above all, it is based on a lie, and as such could undermine the Europeans’ faith in the institutions and in the Treaties: citizenship is normally conferred by a state on those that are the source of its very legitimacy. The European Union is not a state and, as a result, it is not entitled to confer citizenship on anyone. It is not a state because there exists no European holder of sovereignty that can give it this status. The citizenship it confers is thus a second-rate citizenship, which cannot be the basis of true political democracy.
It is surely not a lack of imagination that explains this failure to recognise a European holder of sovereignty as the foundation for the building a democratic concept of the Union. On the contrary, there are, in this regard, a number of possible hypotheses that could be taken into consideration, and these can be divided into two groups according to whether it is a single or a multiple holder of sovereignty that we have in mind.
As regards the first of these options, the European holder of sovereignty could be envisaged in two different ways. First of all, we might consider the existence of a single “European people” resulting from a merging together of the peoples of all the member states. This would be a contrivance analogous to the famous “We the people of the United States” which, during the Philadelphia Convention of 1787, in the absence of any basis in reality or any mandate, marked the birth of the people of the United States. It would also echo the creation of the French people in 1789, a time when France was strongly divided into a number of nations and populations (Bretons, Basques, Alsatians, etc.), with vastly differing legal orders, which the monarchy was unable to unite.[10] It would thus mean affirming the existence of a European people united on the basis of the Europeans’ common principles (Enlightenment, Christianity, science and democracy, literature and philosophy etc.) and their centuries of shared history, in both peace and war.
However, we should not allow ourselves to be deceived by this idea. We no longer live in an age in which a central, military power can force men, through forms of violence, internally and externally, to merge into a single whole against their will. Nor are we any longer in a situation in which war and a common enemy can create the conditions for the formation of a new unity, as Schiller noted at the time of the Thirty Years War in the seventeenth century. Just like nuclear fusion, the fusion of men requires a considerable force of energy in order to overcome resistance, and inevitably leads to the thousands of deaths, as the European states discovered when they were founded, particularly France during the Reign of Terror in 1793. Today, a renewed tendency to retreat into our own particular identity and a certain mistrust of the Union seem to be strengthening the nations’ reluctance to unite, even symbolically, in a single European people, and the European project of unification through peace makes it inconceivable that their incorporation might come about through the exercising of military force. The idea of a single European people, which clashes too much with the multiple European identities, must therefore be discarded, certainly for the moment.
Another, easier solution might be found in the concept of nation. In this case, the sovereign entity would be the “European nation”, embracing the different peoples and individuals that make up the member states. Again, it is an idea that was used in France during the Revolution of 1789 as a means of realising French unification without resorting to the idea of the people, which some felt to be politically dangerous. The building of the modern states was a process by which the “nation”, originally a linguistic community, also became the theoretical and political entity capable of uniting people above and beyond geographical and temporal considerations, and the holder of sovereignty. It is thus a concept that should allow the creation of a sense of European unity while at the same time respecting the diversity of the member states’ peoples and nations. Indeed, the European nation, understood as a political idea, linked essentially to the exercising of the right to vote and to stand for election and the possibility of fulfilling public functions at federal level, would not cancel out the nations’ different historical and cultural identities; it would simply be a new nation to be added to the existing ones; it would not be setting out to replace them. The multi-ethnic nation is a concept familiar to many federal states, like Canada and the former Yugoslavia.
Advanced and elucidated in public speeches and by influential artists, gradually assimilated as the policies of the Union’s states have converged, and used by judges claiming to reach decisions “in the name of the European nation”, this idea could therefore appear destined to take root over time. Its full affirmation and official establishment would coincide with the adopting of a future federal constitution and its profile would be raised by the convening of a constituent assembly made up of individuals elected by and/or representing civil society in all the states wishing to be part of this new European federation and assigned the task of drawing up its founding text. In a more philosophical vein, this European nation could then be likened to a “community of European patriots” on the basis of Habermas’s idea of “constitutional patriotism”.
But many Europeans could find the idea of a single or unitary holder of sovereignty deeply disturbing, even within this more flexible European nation framework. Others would doubtless argue that the building of Europe itself reflects an idea of pluralism, a diversity that its holder of sovereignty must reflect; and this is a point of view that opens up other possibilities.
Alternatively, then, we might consider the hypothesis of a multiple or multipolar holder of sovereignty. The types that can be envisaged are, essentially, three. It could be a holder of sovereignty made up of “European citizens”: abandoning all reference to their unity or unification in a political whole, such as the people or nation, the holder of sovereignty in whose name the federal constitution would be adopted and the judgements passed could simply be all the European citizens. Of course, it would first be necessary to overcome the currently vague notion of European citizenship. The European citizens would be the real source of political legitimacy and all powers would originate from them. This would make them active participants either in the adoption of the constitution by their representatives or, more feasibly, in a referendum ratifying the final constitutional text, organised at European level and without any differentiation between the states in the counting of the votes.
The advantage of this solution is that it would reduce the European holder of sovereignty to a purely political idea, that of citizenship, which would be expressed purely in the context of elections and access to public functions. Being restricted to the public sphere in this way, this holder of sovereignty would not compete with national cultures, would not throw into question peoples’ identities, and would not generate fear by imposing unity. Of course, it presents a theoretical and chronological problem that would have to be solved: normally it is only a state that can confer citizenship, but here the situation is reversed: the citizens would be the ones establishing the state, and the state obviously could not create citizens without first coming into existence itself. One solution to this might be to deem European citizenship (as it is currently formulated) “confirmed” by all the states and thus an authentic power with the capacity to adopt a constitution, or alternatively, through a legal contrivance, it could be declared that the states and the citizens come into being contemporaneously upon the adoption of the federal constitution, and that they thus create each other. This problem need not be an obstacle; after all, our old European nations had much more complex legal problems to solve.
Alternatively, the European holder of sovereignty could be comprised of two parts and include both the states and the citizens. This hypothesis is hinted at in article 1-1 of the 2004 Treaty, which points out that the “constitution” reflects “the will of the citizens and States of Europe”. And to an extent this corresponds to reality. Adoption of the text of this treaty represents, in fact, the convergence of a dual will: the will of the states that have drawn up and adopted the final draft of the treaty and that of the citizens of the various states which have ratified it, either indirectly through their parliamentary representatives, or directly through a referendum. Since, in international law, sovereignty belongs to the states, there would be nothing strange in acknowledging this fact openly in the European constituent process, tempering the affirmation with reference to the interior holder of sovereignty, i.e., the citizens of these states. After all, all federal systems have a dual legislative system: a chamber electedby the citizens and a chamber that represents the states. It would be enough to extend this classic concept to the constitutional legislator. If this were done, the will of this dual holder of sovereignty could find its expression in a federal pact to be drawn up by the states’ representatives and adopted (through the passing of a law or through a referendum) by the citizens of the states that wish to be part of the new federation. The latter option would probably be preferable as it would strengthen the democratic legitimacy of this solemn decision.
It is a fascinating idea, but it is also one that is legally flawed and, from a practical point of view, dangerous. This is because the adoption of the text of the treaty is placed in the hands of citizens who are in fact true holders of sovereignty, because, here, they are to be understood as “citizens of the states” (not as “citizens of the Union,” who do not exist). In this way, the established powers (the states), or more precisely the national governments, are placed on the same level as the constituent power (the people/the citizens). The whole significance of the constitutional process lies in the fact that it is meant to give the people the power to oppose the powers of the states. A constitution, ultimately, is a text drawn up by a creator in order to limit the capacity to harm of the entity it has created. To put the created entity and the creator on an equal footing is to run the risk of undermining centuries of democratic endeavour, unless, of course, the citizens are given real guarantees that they will have the last word, and thus the certainty that state projects cannot be imposed on them without their consent. Provision should be made, for example, for the adoption of the text by referendum, or subject to a three-fifths majority in the national parliaments, which would surmount the simple majority which supports the governments that drew up the text.
As a further possibility, constitutional science could make provision for a holder of sovereignty comprised of “the European peoples” or even “the European nations” of those states that support the federal project. Classical theory argues that there can only be one holder of sovereignty, which clearly cannot be reconciled with the plurality of the European peoples. But this whole question could be reviewed. There is no reason why, in the twenty-first century, constitutional concepts should not be updated, as they were two hundred years ago in the USA and in France, thereby opening up the way for the holder of sovereignty to be interpreted in a new way. Yet even were we to stay within the traditional canons, the singleness of the holder of sovereignty need not necessarily be sought in a unitary framework (the people), but could instead be found in the sum of the peoples that have agreed to be part of the new federal entity, which, on joining it, would form a single sovereign unit. The European holder of sovereignty would thus be the sum of the national holders of sovereignty of the member states that have opted to join the proposed union. Justice delivered “in the name of the European peoples (or of the European nations)” or a constitution that opens with the words “We, peoples of Europe (or We, nations of Europe)” would not undermine the foundations of democracy. A further advantage of this hypothetical solution is that it would create a unit without imposing it; it would promote a Europe that respects the national identities, a Europe that is not just “united in diversity”, but rather “united by diversity”. In this framework, it would be possible not only to convene a European constituent assembly made up of the representatives of the peoples of the states wanting to be part of the federal project, entrusting it with the task of drafting its constitution, for ratification, but also to limit the participation of the peoples to the final stage of the ratification process, where it could take the form of a solemn vote of approval, direct or indirect, conducted according to procedures that would guarantee the validity of the support give.[11]
At this point there remains one question: how can we determine which of these many potential holders of sovereignty might form the basis of a European democracy equal to the challenges inherent in the proposed political project?
In truth, this is a question that need not even arise. According to classical theory, the constituent power, to be legitimate, must be the expression of the holder of sovereignty. The holder of sovereignty must thus be identified before the constituent power is, and the constituent power will, in turn, be the one to determine the ruling powers. But if we look closely, this is not what actually happens: it is always the victorious constituent power, the one which prevailed in the struggle with the other political forces claiming the right to draw up the founding text, which, subsequently, legitimises its own power in the name of a holder of sovereignty evoked for the purpose. We can, in fact, imagine, in a society, different holders of sovereignty (God and His representatives, the King, an elite, the people, the nation, etc.) all struggling to seize power and to found a political system that legitimises this power (theocracy, monarchy, aristocracy, democracy etc.). The one ultimately acknowledged as the holder of sovereignty is the one corresponding to the political force that has managed to win power, be it through a coup d’état or through the natural evolution of the institutions. France, England, the United States in 1787, Italy and Spain — the list goes on — have all experienced revolutions of this kind, which made it possible to replace one holder of sovereignty with another; which removed the holders of power and replaced them with those that had been excluded by the previous regime and that demanded, to strengthen their claims, a new legitimacy in the name of a new holder of sovereignty, for which they spoke. It is the constituent power that creates the holder of sovereignty, not the other way round.
All prior and theoretical reflection aside, therefore, it is the promoters of the federalism of tomorrow that will have to select the holder of sovereignty that suits them best, on the basis of their own origins and of the setting in which their federation will be created. Spurred on by the legitimacy of this sovereign that, in this way, they will have created, it will become possible for them to invent something different from a traditional federation, to create, in accordance with the logic of a European Community sui generis, a “European republic” as yet to be defined in legal terms.
[2] Commemorating a famous battle waged in this Pennsylvania town during the American Civil War, he declared: “that we here highly resolve that these dead shall not have died in vain; that this nation, under God, shall have a new birth of freedom, and that government of the people, by the people, for the people, shall not perish from the earth”.
[3] According to Siéyès, even when they are denied the right to vote, “passive” citizens are still citizens, holders of other civil rights, such as the right to fulfil public functions, for example.
[4] European Court of Justice, 12th September 2006, case C-300/04, Eman and Sevinger.
[5] Article 21 attributes the right to petition to citizens, but article 194 extends it to “any natural or legal person residing in or having its registered office in a Member State” of the Community.
[6] Again, a right established by article 21 of theTEC, but extended by article 195 to ”any natural or legal person residing in or having its registered office in a Member State” of the Community.
[7] A freedom proclaimed by article 18 of the TEC, but extended by article 39 to all “workers” and to all those regularly granted admittance to the Schengen area.
[8] Following the example of the Treaty establishing the European Community, which, in article 155, talks of “projects of common interest” in the area of trans-European networks, the European Court of Justice has, on certain occasions, recognised that some policies are linked to “objectives of general interest pursued by the Community”, in relation to the environment for example (European Court of Justice, 7 February 1985, case 240/83, Association de défense des brûleurs d’huiles usagées). But as yet no legal provision has been made for any assumption of responsibility, by the Union’s institutions, for the general interest of the Community, in spite of what it says in article 213 of the TEC (“The Members of the Commission shall, in the general interest of the Community, be completely independent in the performance of their duties”).
[9] According to article 250, the Council can amend a proposal from the Commission only by unanimity while according to article 251 it can accept parliamentary amendments rejected by the Commission provided this is, again, by unanimity. Unanimity is now becoming increasingly difficult to achieve, and this considerably strengthens the powers of the Commission, whose opinion it is becoming more and more difficult to get round.
[10] See Alexis de Tocqueville, L’Ancien Régime et la Révolution, Paris, 1856. Some authors maintain that the French Revolution (1789) originated from the need to unify the country in a great movement that the monarchy was incapable of creating.
[11] For more on these different hypotheses, see Christophe Chabrot, “The Project for a Political Europe in the Wake of the 2005 French Referendum”, in The Federalist, XLVIII (2006), pp. 158 onwards.
