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EU as a Polity
Constitutionalism, Federalism, Democracy
How did the EU polity emerge?
 “[The Treaties] do not contain but a minimum of
supranationalism and no danger of surprise can exist for
the contracting states because nothing of substance can
escape the control of the national parliament.” (The
Report of Italian Senator Santero, presented in 1957
during the Italian ratification debates over the Treaty of
Rome)
 In its highest ever fine on an EU state, the Court of Justice
of the EU ordered Italy to pay 40 million Euros for failing
to tackle the dumping of illegal waste. (December 2014)
From intergovernmentalism to supranationalism
 Intragovernmentalism characterizes typical international organizations
– national governments pursue their own interests and preferences
that want to be allocated beyond the nation-state level
 Supranationalism implies that some powers resumed by the level
beyond the nation-state are driven by the underlying political,
economic and social processes and forces.
 Supranationalism in the current EU is exemplified by the qualified
majority voting system in the EP and the Council, whereas
intergovernmentalism is preserved in some fields such as: taxation, the
accession of new states, and the common foreign and security policy –
where unanimity still applies
 Question: At what point and how the EU turned from
intergovernmentalism into supranationalism?
Constitutionalization of the EU
 In terms of form, the primary law of the EU is international law, but
in terms of substance, it is constitutional law.
 “The ‘constitutionalization of the treaty system’ refers to the
process by which the Treaty of Rome has evolved from a set of
legal arrangements binding upon sovereign states into a vertically
integrated legal regime conferring judicially enforceable rights and
obligations on all legal persons and entities, public and private,
within EU territory.” (Stone Sweet)
 The process of constitutionalization began with the politics of
judicial integration, conducted by the ECJ (today The Court of
Justice of the EU)
Initial stage: The vicious circle of ineffectiveness
 “The weaknesses of the European legal system fed upon itself.
The lack of enforcement mechanisms discouraged the
Commission from raising cases, and the lack of Commission
cases allowed states to interpret the rules for themselves. The
refusal of national courts to enforce European law or refer cases
to the ECJ discouraged would-be litigants. Lacking cases, the
ECJ was unable to develop jurisprudence, and the lack of ECJ
jurisprudence left states significant latitude to interpret
European law on their own. And the lack of any enforcement
mechanisms discouraged the ECJ from making unpopular rulings
against member states.” (Alter)
Two phases of judicial integration
 First phase: 1962-1979 in which the ECJ secured the core,
constitutional principles of supremacy and direct effect
 The doctrine of supremacy (Costa, ECJ 1964) lays down the rule that, in any
conflict between an EU legal norm and national rule or practice, the EU
norm must always be given primacy. Every legal rule coming within the
purview of the Rome Treaty, from the moment of its entry into force,
‘renders automatically inapplicable any conflicting provision of . . .
national law’ (Simmenthal II, ECJ 1978).
 The doctrine of direct effect holds that, under certain conditions, EU rules
confer on individuals rights that public authorities must respect, and
which must be protected by national courts. During this period, the
ECJ found that certain treaty provisions (Van Gend en Loos, ECJ 1963) and
a class of secondary legislation called directives (Van Duyn, ECJ 1974a)
were directly effective, and it strengthened the direct applicability of
another class of secondary legislation, called regulations.
Two phases of judicial integration
 Second phase: 1980s onwards – the ECJ supplied national courts with
enhanced means of guaranteeing the effectiveness of EU law.
 In the 1980s, the doctrine of indirect effect was established, according to
which national judges must always interpret national rules as if they
were in conformity with EU law (Von Colson, ECJ 1984). In Marleasing
(ECJ 1990), the ECJ announced that, when a directive has either not
been transposed or has been transposed incorrectly into national law,
national judges are obliged to interpret this law in conformity with
that directive.
 Finally, beginning with Francovich (ECJ 1991a), the ECJ has developed
the doctrine of state liability. According to this doctrine, a national court
can hold a member state liable for damages incurred by individuals due
to a member state’s failure properly to transpose a directive.
Federalization of the EU
 Once ‘constitutionalized’, the EU legal system has constituted and
reinforced supranational modes of governance in the EU and
reduced the impact of intergovernmentalism.
 Supranationalism implied the move towards a federal political system
– this is genus proximus descriptive concept for various forms of
political structures that are based on the combination of shared rule
and self-rule (e.g. unions, federations, confederations,
condominiums, hybrid political structures)
 In comparison to the US model of ‘constitutional federalism’, the
EU ‘treaty federalism’ relies in the division of powers on the
principle of subsidiarity.
Principle of conferral
 “Under the principle of conferral, the Union
shall act only within the limits of the
competences conferred upon it by the Member
States in the Treaties to attain the objectives set
out therein. Competences not conferred upon
the Union in the Treaties remain with the
Member States.” (Art. 5.2 TEU)
Principle of subsidiarity
 “Under the principle of subsidiarity, in areas which do not fall
within its exclusive competence, the Union shall act only if and in
so far as the objectives of the proposed action cannot be
sufficiently achieved by the Member States, either at central level
or at regional and local level, but can rather, by reason of the scale
or effects of the proposed action, be better achieved at Union
level.” (Art. 5.3 TEU)
 It applies only in areas where the Union and the Member States
share legislative competence. This implies that the principle does
not apply in areas where the Union has an exclusive legislative
competence.
 It is not a rule for the allocation of competences, but for the use
of competences
Principle of proportionality
 “Under the principle of proportionality, the content and
form of Union action shall not exceed what is necessary to
achieve the objectives of the Treaties.” (Art. 5.4 TEU)
 The Goldilock and the Three Bears Principle: "Not too
big, not too small, but just right“
 The discussion of subsidiarity tends to be intertwined with
issues of proportionality and purely political
considerations. This may happen both at the legislative
level, and when the issue of subsidiarity is argued before
the ECJ.
Interplay between the principles of conferral, subsidiarity and
proportionality
 Subsidiarity and proportionality are corollary principles of the
principle of conferral. They determine to what extent the EU can
exercise the competences conferred upon it by the Treaties. By virtue
of the principle of proportionality, the means implemented by the EU
in order to meet the objectives set by the Treaties cannot go beyond
what is necessary.
 The Union can therefore only act in a policy area if:
1. the action forms part of the competences conferred upon the EU by
the Treaties (principle of conferral);
2. in the context of competences shared with Member States, the
European level is most relevant in order to meet the objectives set by
the Treaties (principle of subsidiarity);
3. the content and form of the action does not exceed what is necessary
to achieve the objectives set by the Treaties (principle of
proportionality).
Subsidiarity as a safeguard of federalism
 The functioning is determined by Protocol No. 2 on the Application of the
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Principles of Subsidiarity and Proportionality
Subsidiarity as a political and as a judicial safeguard of federalism
Ex Ante Control by National Parliaments: Protocol will strengthen the
political safeguards of federalism by involving the national parliaments as
“watchdogs of subsidiarity” (a quasi-federal-second-chamber function); yet,
national parliaments do not possess the veto power
The Subsidiarity Protocol to the Lisbon Treaty (Protocol No 2) has its system
with yellow card and orange card procedures (but no true red card
procedure) allowing national parliaments to submit reasoned opinions with
specific legal effects, when they believe that a Commission proposal for new
EU legislation violates the Subsidiarity Principle.
Ex post Judicial Control by Union Courts: “The Court of Justice of the
European Union shall have jurisdiction in actions on grounds of infringement
of the principle of subsidiarity by a legislative act…” (Art. 8 of the Protocol);
judicial safeguard gives the Court a quasi-federal-constitutional-review
function
‘Withdrawal Clause’ and the EU federalism
 Friel argues that withdrawal (secession) mechanisms in federal political
a)
b)
c)
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systems may fall into three principal categories:
State primacy, in which there exists an absolute, immediate, and
unilateral right of a Member State to withdraw from the federal polity;
Federal primacy, which implies absolute prohibition of a Member State’s
withdrawal;
Federal control, where a Member State retains its sovereign right of
withdrawal, but subject to negotiations with and approval by remaining
units of the federal polity
“Any Member State may decide to withdraw from the Union in
accordance with its own constitutional requirements.” (Art. 50TEU)
However, in case of a dispute as to the validity of the Member State’s
decision to leave the EU, the question as to whether or not the decision
was constitutionally made would fall ultimately to the Court of Justice of
the EU.
EU –What sort of a political system?
 Maastricht Treaty was a decisive step towards political integration of
Europe
 In its famous 1993 Brunner Case on the Maastricht Treaty, the German
Federal Constitutional Court stated that the European Union is neither a
classical federal state (Bundesstaat), nor a mere alliance of sovereign states
(Staatenbund), but a sui generis polity – Staatenverbund.
 “The EU is a political system in its own right, or at least a ‘partial polity’.”
(Beetham and Lord); it is “a polity without a state” (Brunkhorst); it is “a
political system as it possesses all the elements needed to be such a system:
institutional stability and complexity; powers of government through which
citizens and social groups seek to achieve their political desires; a significant
impact on the distribution of economic resources and the allocation of
social and political values; and a continuous interaction between political
outputs, new demands on the system, and so on.” (Gerven)
EU as a democratic political system?
 According to Hix, there are four essential characteristics of all
democratic political systems:
1. There is a clearly defined set of institutions for collective decisionmaking and set of rules governing relations between and within these
institutions.
2. Citizens seek to achieve their political desires through the political
system, either directly or through intermediary organizations like
interest groups and political parties.
3. Collective decisions in the political system have an impact on the
distribution of economic resources and the allocation of social and
political values across the whole system.
4. There is a continuous interaction between these political outputs,
new demands on the system, new decisions, and so on.
Hix concludes that the EU possesses all these characteristics
Challenges to the Political Integration of the EU
 Post-Maastricht, Brunner Case before the BVfG (1993), three
interconnected findings of the Court:
1. Since democracy presupposes the existence of a demos, no polity could be
considered democratic unless its population does not display some expressive
features of the common belonging to this polity;
2. The EU can transform into a democratic polity primarily by moving towards
some traditional nation-state model in which the aforementioned concept of
democracy is more easily attainable;
3. Legitimacy of the EU institutions and its decisions should be measured solely
by standards of the traditional concept of democratic legitimacy.
 any claim of the European bodies that they possess the competence to
determine the scope of its competence (Kompetenz-Kompetenz) could not be
validated in German law
BVfG’s Decision on Lisbon Treaty (June 2009)
The structural problem of the European Union - in
some fields of policy, the European Union has
a shape that corresponds to that of a federal
state, i.e. is analogous to that of a state,
whereas the internal decision-making and
appointment procedures remain
predominantly committed to the pattern of an
international organization, i.e. are analogous
to international law.
Overcoming the ‘structural problem’?
“As long as, consequently, no uniform European
people, as the subject of legitimization, can express
its majority will in a politically effective manner
that takes due account of equality in the
context of the foundation of a European
federal state, the peoples of the European
Union, which are constituted in their Member
States, remain the decisive holders of public
authority, including Union authority.”