HIBERNIAN LAW JOURNAL 2010
David Edward

THE THEME
• What is the effect on the process of
European integration of two apparently very different streams of thought
– NATIONALISM &
– CONSTITUTIONALISM?

• WHY THIS TOPIC?
• OBITUARY OF ROBERT McNAMARA – 11
LESSONS OF THE VIETNAM WAR
• JUDGMENT OF GERMAN CONSTITUTIONAL
COURT ON THE « LISBON » TREATY
• JUDGMENT OF THE SPANISH CONSTITUTIONAL
COURT ON THE STATUTE OF AUTONOMY OF
CATALONIA
• « THE RETURN OF THE WESTPHALIAN STATE »

Conventional Wisdom
• “Nationalism” was at the root of European rivalries and conflicts.
European integration will overcome the evils of nationalism.
Rejection of the Gaullist (and British?) vision of an intergovernmental Europe des Etats.

CONSTITUTIONALISM
• “Constitutionalism” is the pre-condition and guarantee of stable democracy.
• « The general framework of the institutions of a sovereign independent constitutional and democratic state »
– Barrington J. in Crotty v An Taoiseach
(Interloctory judgment , para 8A)

THE THEORETICAL MODEL OF
EUROPEAN UNION
• Incremental integration leading to a
« United States of Europe » on the model of the USA

The US model applied to the
European institutions
• European Parliament + Council =
Congress
– EP = House of Representatives
– Council = Senate
• European Commission = Executive
• European Court of Justice = Supreme
Court

ROBERT MACNAMARA
‘THE DOMINO THEORY’
• If one country in a region comes under the influence of communism, then the surrounding countries will follow in a domino effect.
• ‘Incremental integration through communism’

ROBERT MACNAMARA
11 Lessons from Vietnam
The Fallacy of the Domino Theory
• 3. We underestimated the power of nationalism to motivate a people to fight and die for their beliefs and values.

What is “nationalism”?
• OED definition: Devotion to one’s nation
• Two (at least) perceptions of what constitutes a ‘nation’

THE U.S. PERCEPTION
Justice Oliver Wendell HOLMES Jr
Missouri v Holland 252 US 416 (1920)
• When we are dealing with words that are also a constituent act, like the
Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen by the most gifted of its begetters.

• It was enough for them to realize or to hope that they had created an organism : it has taken a century, and has cost their successors much sweat and blood, to prove that they created a nation .
• [Nationhood evolves from the
Constitution]

OED definition of ‘nation’
• An extensive aggregate of persons, so closely associated with each other by common descent, language, or history, as to form a distinct race or people, usually organized as a separate political state and occupying a definite territory.

A POLITICAL SCIENCE DEFINITION
• A nation is a historically evolved, stable community of language, territory, economic life and psychological make-up manifested in a community of culture.

Joseph Stalin:
Marxism and the National and Colonial
Question p.8.
(Originally written in 1912)

The elements of « nationhood »
• History
• Language
• Territory
• Economic life
• Psychological make-up
• Common culture
• PLUS (not mentioned by Stalin)
– Religion and
– Ethnicity

McNAMARA Lesson 4
4. Our judgments of friend and foe, alike, reflected our profound ignorance of the history, culture, and politics of the people in the area, and the personalities and habits of their leaders.

E.J. Hobsbawm Nations and Nationalism since 1780 , CUP 1990, p. 12, paraphrasing Ernest Renan, Qu’est qu’une Nation ?
(1882) pp. 7-8

Relative stability of states with defined territory

THE EU
TODAY

• THE CONTEMPORARY
IMPRESSION OF RELATIVE
STABILITY MASKS A LONG
HISTORY OF INSTABILITY,
PARTICULARLY IN CENTRAL &
EASTERN EUROPE

1730

GERMANY
1786

ITALY
1799

EUROPE
AFTER
CONGRESS
OF VIENNA

1914

EUROPE
AFTER
VERSAILLES

BALKANS
1918-38

EUROPE
1939

1949 to
1992
VOTI

EUROPE
TODAY

QUESTIONS
• HAS EUROPE REACHED STABILITY ?
• IS DEMOCRATIC CONSTITUTIONALISM A
SOURCE (AND CONDITION) OF STABILITY ?
• IF SO, IS THE “WESTPHALIAN STATE” A
NECESSARY ELEMENT OF EUROPEAN
STABILITY ?

• ETHNIC TENSIONS/ MINORITIES
• IMMIGRATION
• EUROSCEPTICISM/EUROPHOBIA
• DISPARITIES OF WEALTH
• FINANCIAL CRISIS
• STRUCTURAL IMBALANCE

STRUCTURAL IMBALANCE
• POPULATION –v- VOTING POWER
- MEMBERSHIP OF EUROPEAN PARLIAMENT
- VOTING POWER IN COUNCIL OF MINISTERS

Pop. M
.
MEPs
Votes
• Germany 80+
• France, Italy & UK 60
• Spain & Poland 40
• -
• Romania/NL
99
72
50
29
29
27
20/16 33/25 14/13
• 8 States
• 5 States
• 3 States
• 3 States
7-11
3-6
1-2
< 0.7
17-22 12/10
12-13
6-8
5-6
7
4
3-4

VOTING IN COUNCIL AFTER 2014
• QUALIFIED MAJORITY
– 55% of States, representing
– 65% of Population
• BLOCKING MINORITY
– States representing 35% of Population
PLUS ONE

CANDIDATE COUNTRIES
• TURKEY 72.6 m.
MACEDONIA 2 m.
CROATIA 4.4
ICELAND <0.5 m.
• Potential candidates
• SERBIA MONTENEGRO BOSNIA
• KOSOVO ALBANIA MOLDOVA
• ?UKRAINE
?BELARUS
• ?AZERBAIJAN ?ARMENIA
?GEORGIA
??? RUSSIA

JUDGMENT OF THEGERMAN
CONSTITUTIONAL COURT on the Lisbon Treaty 30 June 2009
• The Source of Democratic Legitimacy
• The Principle of Democracy
• The Nature of the EU
• The Source of Legitimacy in the EU
• Social concerns
• The Legal Consequences

THE SOURCE OF LEGITIMACY
• THE CONSTITUENT POWER OF THE NATION
Die verfassungsgebende Gewalt des Volkes
• THE SELF-DETERMINATION OF THE NATION
ACCORDING TO THE WILL OF THE MAJORITY
IN FREEDOM AND EQUALITY
Die Selbsbestimmung des Volkes

SPANISH CONSTITUTIONAL COURT
Judgment of 29 June 2010
• The word “nation” can be used to speak of something that is cultural, historical, linguistic, sociological or even religious.
What matters here is solely and exclusively the word in its juridicalconstitutional sense. In this sense the
Constitution knows nothing other than the Spanish nation on which the
Constitution is based.

CONSTITUTION OF IRELAND
• ARTICLE 1: The Irish nation hereby affirms its inallienable indefeasible and sovereign right to choose its own Government, to determine its relations with other nations, and to develop its life, political, economic and cultural, in accordance with its own genius and traditions.
• ARTICLE 6: All powers of Government legislative, executive and judicial derive, under God, from the people.

Common thread
• The nation [people] is the source of the
Constitution
CONTRAST Holmes J.:
• The Constitution creates the nation
DISTINGUISH US Constitution:
• We the people …..

THE PRINCIPLE OF DEMOCRACY
• The right to vote is the most important right of individual citizens ( die Bürger) to democratic participation guaranteed by the German Constitution. (§210)
• The right of citizens ( die Bürger) to determine the scope of public authority through the exercise, in equality and freedom, of the right to vote is the fundamental element of the principle of democracy. (§211)

• This central requirement of democracy can be based on different models (§214)
• But one thing is common to all systems of representative democracy: the will of the majority formed in freedom and taking due account of equality (§215)
• The principle of democracy cannot be weighed against other legal interests: it is inviolable. (§216)

The NATURE of the EU
• The democracy of the EU is said to be analogous to the model of a federal state. (§288)
• Judged by the criterion of representative democracy, it is overfederalised (§288)

Over-federalisation
• GERMAN AND FRENCH MEPs REPRESENT
857,000 CITIZENS
• SWEDISH MEPs REPRESENT 455,000
• LUXEMBOURG MEPs REPRESENT 83,000
• MALTESE MEPs REPRESENT 67,000

• Representation in the European
Parliament is not linked to the equality of citizens of the Union (Article 9 TEU) but to nationality, a criterion that is actually an absolutely prohibited distinction for the European Union!
• This contradiction can only be explained by the character of the European Union as an association of sovereign states.(§287)

• The power to transfer sovereign powers to the European Union comes from the Member States
• They remain the Masters of the
Treaty
• The source of authority is the nations of Europe ( die Völke Europas ), bound together democratically by the constitution of their respective
States (§231)

• The fundamental democratic rule of equality of opportunity (‘one man one vote’) applies only within a nation ( Volk ), not within a supranational representative body, which remains representative of the nations ( Völke ) bound to each other by the Treaties (§279)
• Citizenship of the Union is derived solely from the will of the Member States and does not constitute a ‘nation of the Union’ ( Unionsvolk ) which could, as a legal entity, exercise selfdetermination and give itself a constitution.
(§346)

• Even after the Lisbon Treaty, the EU lacks a political decision-making body which has come into being by equal election of all the citizens of the Union . (§280)
• The European Parliament is not a body that represents a sovereign European nation (§280)
• The Council is not a second chamber but a body representing the Masters of the
Treaty (§271)

Integration involves a willingness for joint action and opinionforming.
But it requires neither submission without constitutional limitation and control, nor foregoing one’s own identity .
(§228)

THE SOURCE OF EU LEGITIMACY?
• The obligation under European law to respect the constituent power of the Member States as the masters of the Treaties (§235)
• [Compare “the constituent power of the nation”]

Social Concerns
• The principle of the ‘social state’ requires the state to ensure a just social order. Essential decisions in social policy must be made by the
German legislative bodies on their own responsibility. (§257)
• Education, family law, languages, the media, churches and religious and ideological communities are the primary responsibility of the Member States (§259)

THE LEGAL CONSEQUENCES
• If legal protection cannot be obtained at EU level, this Court will review whether legal measures of the EU have kept within the boundaries of the powers accorded to it.
• This may result in Union law being declared inapplicable in Germany, and oblige German bodies not to apply EU measures that transgress competences or violate constitutional integrity
(§240-241)

• If, as European integration develops, an imbalance arises between the character and extent of the sovereign powers that are exercised and the degree of democratic legitimation, it is for the
Federal Republic of Germany, due to its responsibility for integration, to work for a change, and if the worst comes to the worst, even to refuse to participate further in the EU . (§264)

QUESTIONS
• Do we have a workable political system if each State claims the right to say how the Treaties are to be interpreted and what are the permissible limits of the process of integration?
• Do we have a workable legal system if measures taken by the Institutions of the
Union can be declared inapplicable by a national court?

• How should we balance
– the requirements of representative democracy based on equality
– against the nationhood of states whose populations range from 0.4 million to 90 million?
• Do we all agree that statistical equality of voting power is « the fundamental element of the principle of democracy » ?

MORE FUNDAMENTALLY
• Do we agree that the source of legitimacy in a democracy is “the constituent power of the nation”?
• If so, “nation” in what sense?
• Is “nationalism”, in some sense, the basis of constitutionalism?
• If so, is the Westphalian State here to stay?
• What about the ‘stateless nations’?

A PROVISIONAL CONCLUSION
• The US comparison ultimately does not help
• There are parallels
• But history, language, religion, ethnicity, nationalism and constitutionalism will continue to condition the evolution of
Europe in ways that do not operate in
America

NEW ELEMENTS FROM THE LISBON
TREATY
• Principles of conferral, subsidiarity and proportionality, including “regional or local level” (cp Protocol 26)
• New role for national Parliaments
(including separate role for separate chambers)
• Obligation (?) to consult regional parliaments with legislative powers

• We have « called into life a being the development of which could not have been foreseen by the most gifted of its begetters »
• This will not be the United States of
Europe, but it is already more than an intergovernmental Europe des Etats
• Multi-dimensional/Variable geometry
• Perhaps that is better adapted to the realities of our continent

• At any rate, what is surprising is not how badly it works, but the fact that it works at all.