The European Union and
the Citizens of Europe
by Stephanie
Schiedermair,
Professor and Doctor, University of Leipzig (Germany).
The
relationship between the European Union and the citizens of Europe has been a
constant matter of debate since the failure of the European Constitutional
Treaty after the referendums in France and the Netherlands.[1] The national referendum on the
suggestions of the European Union concerning the Greek crisis, launched by the
former Greek Prime Minister Alexis Tsipras[2] and the discussion of Great Britain’s
possible withdrawal from the EU (“Brexit”)[3] have shown that this relationship
remains a crucial issue for the European Union, even or maybe especially in
times of crisis.
Since the
failure of the Constitutional Treaty the EU has become more aware of the
central role of the citizens of Europe for the success of the European Union.
The sometimes sceptically termed “elite driven
project”[4] EU therefore has put a lot of effort
in the so called “Europe of the citizens”, trying to
enhance civic participation at EU level.[5] These efforts are part of a wider
discussion concerning the so called “democratic
deficit” of the EU.[6] With the last comprehensive Reform
Treaty of the EU, the Treaty of Lisbon (2009), which could only come into force
after the second and then positive referendum of the Irish people[7], the member states have tried again to
redress the “democratic deficit” of the EU.[8] One of the major improvements for the
democratic legitimacy of the EU has again been – as in every EU Reform Treaty –
the increase of power for the European Parliament.[9] Besides new rules concerning the
election of the European Parliament and rules to strenghten
the role of national parliaments in the EU, the member states have also created
a new participatory opportunity for European citizens, the European Citizens’
Initiative in article 11 para. 4 TEU.[10] With the European Citizens’ Initiative
the European Union gives the European citizens (consisting of a minimum number
from at least 7 of the 28 member states) a tool to suggest a legislative act to
the Commission.[11]
The Citizens’
Initiative constitutes the first attempt to introduce an element of direct
democracy in the European Union and it also represents the first attempt
worldwide to introduce direct democracy into an international organization.
The paper
wants to adress the relationship between Europe and
the European citizens from different perspectives. The first chapter shall deal
with the structure of the European Union as an international organization and
shall pose the question how democracy as a principle fits into that structure
(I.). The chapter shall also describe the various forms of democratic elements
in the European Union. The second chapter is supposed to sketch the “European
citizen” as an idea of the European Union taking up the citizenship of the
European Union (II.). The third chapter is dedicated to scrutinizing the
participatory possibilities for European citizens (III.). In that context I
also want to display some data how the new European Citizens’ Initiative has
been working practically so far. The summary will be able to shed some light on
the relationship between Europe and the European citizen (IV.).
From the
perspective of international law, the European Union constitutes at first sight
an ordinary international organization. As such the European Union is a normal
subject of international law with full legal capacity. That means it can
conclude international treaties with other states or international
organizations, it has its own diplomats[12] and it takes part in normal
international proceedings. Viewd from this
perspective the European Union seems to be just one of the numerous
international organizations that have sprung up after the disaster of World War
II.[13]
However, a
closer look reveals the uniqueness of the European Union. Whereas other
international organizations are based on intergouvernmental
agreements and only provide intergouvernmental
structures the European Union features a “supranational constitution”. This
means not only that European law takes precedence over national
law, but also that it
affects national law much more strongly than common international law. This is
manifested, for example, in the regulation, one of the major secondary
legislative acts of the EU. According to article 288 para.
2 TFEU[14] the regulation shall have general
application and it shall be binding in its entirety and – this is the crucial
part – it is directly applicable in all member states. As a result of the
international law principle of sovereign equality of states, normally an act of
national law is indispensable to implement international law into the national
legal order. In the European Union, the member states have transferred parts of
their sovereign power to the level of the EU. Therefore, the interlinking of
European law and national law is so close, that the member states have partly
waived their usual right to control an act of international law by passing a
law to implement such an act. This is the reason why such an – from a point of
international law – unusual because directly applicable legislative act as the
directive can exist. The German Federal Constitutional Court has coined the
term ‘Staatenverbund’ for the European Union
intending to express that the Union constitutes something which is a much
closer union than a normal international organization (“Staatenbund”),
but not a federal state (“Bundesstaat”) either.[15]
The European
Court of Justice (ECJ) has played a fundamental role in establishing the idea
of the European union as a “supranational organization”. Already in the 1960’s
the Court stressed that the law of the – at that time – European Community
differs fundamentally from the international law normally applying within
international organizations. In van Gend&Loss the
Court held that “the European Economic Community constitutes a new legal order
of international law[16] for the benefit of which the states
have limited their sovereign rights, albeit within limited fields, and the
subjects of which comprise not only the member states but also their nationals”.[17] In the famous Costa/ENEL judgement of July 15th 1964 the ECJ stated
that “by contrast with ordinary international treaties, the EEC treaty
has created its own legal system[18] which, on the entry into force of the
treaty, became an integral part of the legal systems of the member states and
which their courts are bound to apply”.[19] And in an opinion of the Court of 14
December 1991 the ECJ went even further and found that” [...] the EEC Treaty, albeit concluded in
the form of an international agreement, none the less constitutes the
constitutional charter of a Community based on the rule of law’.[20] All this shows that the European legal
system has unique characteristics clearly distinguishing the EU from all other
international organizations.
Since the
European Union is not an ordinary international organization the question
arises what it is and if it is rather a national state than an international
organization. The wording of the Court in its opinion of 14 December 1991 (“the
EEC Treaty [...] constitutes the constitutional charter[21] of a Community based on the rule of
law”) might seem to suggest this.[22] It seems very doubtful, though,
whether the European Union really is on its way to become a federal state as we
look at the crises the Union has experienced in the last few years. Those
crises imply a gradual decrease or even a disintegration of the Union rather than
an ongoing progress in European integration.[23] Whether one tends to view the ongoing
development as an decelerated integration rather than
a decline of the European Union depends on the attitude of the observer. At
least one has to keep in mind that the European integration has proceeded at a tremendous pace so far. The introduction of
the possibility of withdrawal in article 50 TEU by the Treaty of Lisbon, for
example, is on the one hand a manifestation of the crises the EU has
experienced in the last years. It is on the other hand also a step towards
normality since treaties founding international organizations usually contain a
withdrawal clause.[24] However, it is obvious that the EU is
at the moment certainly not moving towards a European state.[25] Although the idea of a “United States
of Europe” still has its advocates[26], the current debate rather focuses on
the question if the European Union will be able to overcome its crises and will
continue to exist at all in its present form.
One of the
reasons why the European Union will probably never become a federal state is a
fundamental scepticism of some EU member states and
of the population as well concerning European integration in general and
specifically concerning a development towards a European state. And even in
member states where such a scepticism towards the
European Union might not exist, a development towards a European State would
not be welcomed, e.g. in Germany, where the German Federal Constitutional Court
in its judgement concerning the Treaty of Lisbon made
it explicitly clear that it would see a development towards a European State as
not in accordance with the German constitution.[27] The scepticism
towards a too tight European Union manifests itself in many ways. One thing is
the reluctance of some member states – such as Great Britain and Poland – to
fully join the EU Charter of Fundamental Human Rights.[28]
The
fundamental scepticism also shows up clearly in the
referendums on European matters initiated by some member states. This
development will reach its temporary high in the referendum on the maintenance
of Great Britain in the EU. This referendum will be the first referendum held
by a long-time member state about staying in the EU and might constitute the
first application of article 50 TEU. Whether these referendums really relate to
EU politics or are rather dominated by national politics often remains
doubtful. This is also the case with the “Brexit”,
which can also be seen as a poll concerning the British immigration policy of
the last decade.[29] The referendums in the Netherlands and
in France in 2005 demonstrate though that referendums have the power to affect
European integration in a serious way regardless of what the will of the people
wanted to express in the first place.[30] That way referendums
are a double-edged sword. On the one hand referendums often acted as drags on
the further European integration process and not infrequently smashed political
efforts. Referendums therefore pose a momentary risk for European integration
on the one hand and can be seen as the sword of Damocles over the fate of the
European Union. On the other hand they provide a proper means to identify the
people’s will concerning European matters and to integrate the people of Europe
into the European decision-making process. And this integration proves
essential for the long-term success of the European Union.
The deeper
reason why those referendums play such a fundamental role for the progress of
the European Union can also be found in the structure of the EU. As a
supranational community the EU is dedicated to certain prinicples
that are normally not part of international organizations. One of the
fundamental principles the EU is build upon is
democracy.[31] Democracy has always been a principle
all member states stay comitted to. It therefore also
constitutes one of the fundamental general legal principles of the European
Union itself. But democracy on a European level can not
be equated with the idea of democracy within a state.[32] That was also the opinion the German
Federal Constitutional Court displayed when examining whether the Treaty of
Lisbon is compatible with German constitutional law.[33] International organizations operate
according to principles different to those in national policy. First of all,
international organizations are state-orientated. They are founded by a number
of member states and their structure therefore is arranged according to the
states’ interests. The legal tool for this is international public law, which
is characterized by a coordinative rather than an over – and subordination relationship,
which is typical for domestic legislation. This coordinative structure marks
the second major difference between international organizations and states.
International
organizations therefore usually are based on the principle of “one state one vote”
which stems from the sovereign equality of states as a fundamental element of
international law.[34] The principle of “one state one vote”as a state orientated principle is prone to come into
conflict with the people orientated principle of democracy which
strives for the idea of “one man one vote”. This structural conflict is
displayed exemplarily by the ongoing debate about voting rights in the election
of the European Parliament. According to article 14 para.
2 TEU the European Parliament shall be composed of representatives of the Union’s
citizens. The number of representatives shall not exceed seven hundred and
fifty, plus the President. Representation of citizens shall be degressively proportional,[35] with a minimum threshold of six
members per Member State. No Member State shall be allocated more than
ninety-six seats. In practice, this means that member states with a very small
population such as Malta or Luxemburg are allowed to send more representatives
into the European Parliament in comparison with their population than member
states with a high population such as Germany and France. The idea behind the
principle of degressive proportionality was not to
render the European Parliament too big and that way expensive and uneffective, but also to give smaller states the chance to
send more than just one representative to the European Parliament. The result is
a regulation that conflicts with the basic democratic principle that all votes
should count equally. This conflict is the reason why article 14 para.3 TEU
only rules that the members of the European Parliament shall be elected for a
term of five years by direct universal suffrage in a free and secret ballot and
does not mention the principle of equality. On the other hand, article 9 TEU
states that “In all its activities, the Union shall observe the principle of
the equality of its citizens, who shall receive equal attention from its
institutions, bodies, offices and agencies.” Whether the mechanism of degressive proportionality is in accordance with article 9
TEU seems doubtful. The German Federal Constitutional Court
in its famous judgement concerning the Treaty of
Lisbon critizised the principle of degressive proportionality as not in accordance with the
general democratic orientation of the EU as described in article 10 TEU.[36]
In spite of
these difficulties the European Union has dedicated itself to the principle of
democracy. The uneasiness with the principle of democracy can be felt, though.
It is exemplarily shown in Article 1 TEU: “This Treaty marks a new stage in the
process of creating an ever closer union among the peoples of Europe, in which
decisions are taken as openly as possible
and as closely as possible to the citizen”.[37] The wording of article 1 TEU
demonstrates that the EU is aware of the fact that democracy works different on
a European level. Is also shows a certain awareness of
the member states that the European Union in the past might not have always
succeeded to address the needs of the population at
the local level.
As democracy on a European level can
not be equated with democracy on a national level, the question arises
how democracy is designed on a European level. The democratic legitimacy of the
EU in principle is based upon two pillars.[38]
Both pillars rely on the principle of representative democracy.[39]
The first pillar is the direct representation of European citizens in the
European Parliament. The second pillar relies on the member states that are
represented in the European Council by their heads of state or government[40]
and in the Council by their governments, which are themselves democratically
accountable to their national Parliaments[41].
Over the course of history, the direct representation of European citizens has
become more and more important with the advancing integration of the Union and
the growing power the member states have granted the European Parliament with
each amending treaty. That way the EU has evolved from a normal international
organization into an ever closer union working
according to the principle of supranationality.
The Treaty of Lisbon not only gave more power to the
European Parliament, but clearly tries to focus on the
European citizen.[42] The Treaty of Lisbon introduced a whole
new chapter ‘Provisions on Democratic Principles’ into the TEU (chapter II,
articles 9-12). In this chapter the TEU elaborates about how democracy is
supposed to work on a European level. Although the European Union is
based essentially on the principle of representative democracy, the Treaty of
Lisbon introduced the European Citizen’s Initiative provided in article 11 para. 4 TEU as an element of direct
democracy.
The concept of
the European Citizen is closely linked to the Citizenship of the European
Union, which has been introduced into the founding treaties by the Treaty of
Maastricht in 1993. The Maastricht Treaty marks a turning point to European
integration. Setting up the European Union as a political complement to the
European Community, the Maastricht Treaty turned the organization into a truly
political union.[43] This development has further proceeded
with the Treaty of Lisbon. With each step on the way of further political
integration the focus has turned more and more to the European Citizen as a
crucial figure for the political success of the European Union.
In the present
treaties article 9 TEU defines the Citizenship of the Union as additional to
national citizenship.[44] The EU Citizenship is therefore
sometimes called a “multilevel citizenship”.[45] According to article 20 para. 2 TFEU the Citizenship of the European Union entails
rights and duties[46] that come along with the citizenship
of one of the member countries, but it shall not replace the citizenship of a
member state. That way, the member states and their national citizenship law
and not the European Union itself decide who will become a Citizen of Europe
and who will not.[47] The Citizenship of the Union therefore
constitutes not a real nationality – which is consistent since the EU is not a
federal state, but a specially designed international organization.[48] Nevertheless
the EU Citizenship provides the European citizens with fundamental “European” rights:
the right to move and reside freely in the EU[49], the right to vote for and stand as a candidate in European Parliament and municipal elections[50], the right to be protected by the diplomatic and consular authorities of any other EU country[51], the right to petition to the European
Parliament and complain to the European
Ombudsman and the right to contact and receive a response from any EU institution in one of the EU’s official languages[52]. Moreover, EU
Citizens have the right to non-discrimination on the basis of nationality when
the TFEU applies.[53] They also have
the right to equal access to the EU Civil Service. All those rights contribute essentially to the attractivenes of the citizenships of EU member states as we
can see in the refugee crisis.[54]
In conferring
those rights to European Citizens the Maastricht Treaty has made the European
Union more tangible for the people. But the development into a political Union
has also moved the focus to the European Citizen as a crucial part in the
European decision making process.[55] In a European Union based on
democratic principles the European Citizen is bound to play a decisive role.
The European Union now has to keep the promise of a closer involvement of the
European Citizen into the decision making process in the EU.
The classical
path of citizen’s participation in an international organization goes via the
national Parliaments. The German Federal Constitutional Court therefore sees the
main legitimization of the European Union in the Consent Act to the Founding
Treaties of the European Union.[56] From a strictly constitutional point
of view the means of democratic participation provided by the European Union
therefore only constitute a supplementary legitimization for the European
Union.[57] The possibilities of democratic
participation provided by the European Union itself have become various. Of
course, the most important means of participation is via the direct elections
to the European Parliament.[58] The European Parliament is now -
together with the Council of the EU - the key figure in the European
legislation process.[59] But also the above mentioned rights to
petition
to the European Parliament[60], to complain
to the European Ombudsman[61], and the right to contact and receive a response
from any EU institution in one of the EU’s official languages[62] are fundamental rights involving the
European citizen into EU political matters.
In addition to
those ways of classical democratic representation, the Treaty of Lisbon has
introduced the European Citizen’s Initiative as an element of direct democracy.
This is extremely unusal for an international
organization since international organizations normally solely rely on the
consent of the states joining the organization and do not establish a direct
connection between the organization itself and the citizens of the member
states. But the European Union is – as described above – different. As a Union
comprising only democratic states[63] the EU has dedicated itself to the
principle of democracy. Therefore, the EU has ventured to introduce the
citizen’s initiative as a means to involve the citizens of the EU directly in
EU legislative matters.
The European
citizens’ initiative allows EU citizens to call on the European Commission to
make a legislative proposal.[64] The citizens’ initiative has to be
backed by at least one million EU citizens, coming from at least 7 out of the
28 member states.[65] In each of those 7 member states a
certain minimum
number of signatories is required depending on the number of
inhabitants of the state.[66] The organisers
of the initiative have to be citizens of the European Union and have to be of
the age to be entitled to vote in elections to the European Parliament[67].[68] The subject of the initiative has to
fall under EU competence.[69] Moreover, the Commission has to have
the power to submit a proposal for a legal act concerning the subject of the
initiative.[70]
If an initiative
gets one million signatures representatives of the Commission will meet the organisers of the initiative within 3 months so they can
explain in detail the issues raised in their initiative. Besides, the organisers will have the chance to present their initiative
at a public hearing in the European Parliament. In the end the Commission will
adopt a communication published in all official EU languages spelling out what
action it will propose in response to the citizens’ initiative, if any, and the
reasons for doing or not doing so.[71] The Commission is not obliged to
propose legislation as a result of an initiative. If the Commission decides to
put forward a legislative proposal, the normal legislative procedure kicks off:
the Commission proposal is submitted to the legislator (generally the European Parliament and the Council or in some cases
only the Council) and, if adopted, it becomes law.
So far, three
initiatives have been “successful”, meaning that they have been able to reach
the required number of statements of support. The first initiative had been
registered on 10/5/2012 and carried the title “Water and sanitation are a human
right! Water is a public good, not a commodity!”.[72] The process ended with a communcation from the Commission.[73] In this communcation
the Commission did not propose a legislation installing the right to water as a
human right in the EU. Instead it proposed a number of other actions, partly
connected to the already existing water quality legislation.[74] The second initiative that reached the
magical border of one million supporters was registered one day later on
11/5/2012 and was called “One of us”.[75] It was directed against abortion and research
involving embryos.[76] The final Communication of the
Commission of 28/5/2014 turned down the initiative.[77] The last initiative from 22/6/2012
with the title “stop vivisection” was directed against animal testing.[78] It was answered on 3/6/2015 with a reference
to the already existing legislation and turned down the attempt to totally ban
animal testing in the EU.[79]
Right now five
more initiatives are open for subscription.[80] Some initiatives have been refused in
the first place.[81] That has been the case with the
initiative trying to stop the Transatlantic Trade and Investment Partnership
(TTIP) since it did not meet the criteria of article 11 para.
4 TEU. According to this article the initiative has to deal with matters “where
citizens consider that a legal act of the Union is required for the purpose of
implementing the Treaties”. The Commission argued that an initiative may request the signature and conclusion of an international
agreement with a certain content, whereas the preparatory decision of the Council
to open legal negotiations can not be considered “a legal act of the Union”.[82] Although three initiatives have
managed to cross the one million threshold, no
initiative has been able to incite actual legislation. The actual influence of
the people’s will on the European decision making process via the European
Citizen’s Initiative is therefore minimal so far, which makes the Citizens’
Initiative seem like a toothless tiger and makes one doubt whether the
Initiative truly provides an effective tool for actual citizen participation in
the EU. On the other hand, the initiative encourages people to spend time on
European matters. That way the Citizens’ Initiative helps to build something
like a “European public”.[83] At least it provides a means for
people to engange in a transnational dialogue on
European matters. This is an important thing since one of the problems European
politics encounter is the fact that debates about European matters are very
often held in the context of national politics rather than truly European
aspects. Insofar the initiative provides an integrative counterpart of the
referendums on European matters held in member states.
As a brand-new
instrument for the European Union and worlwide the
European Citizen’s Initiative was introduced on a test basis and is therefore
subject to a current reform process.[84] The European
Parliament reviewd the Initiative in 2015.[85] All in all the
Parliament’s summary was positive concerning the Initiative. The Parliament’s
improvement suggestions mirrored the experiences with the application of the initiaitve, e.g. to make the software for the online
collection of signatures more user-friendly, to provide
appropriate and comprehensive guidance – especially of a legal nature – as
early as possible to the organisers of an initiative
or to explore ways of referring initiatives that did not fall within the scope
of the Commission’s powers to the competent authority, be it at national or
regional level.[86]
The
relationship between the EU and its citizens is intricate. Since the EU is
neither a national state nor a normal international organization, the citizens
of Europe are neither real citizens with a strong
direct bond to the EU nor are they just objects of their state actions and are themselves
not connected to the EU. The intermediate state of the EU therefore is
reflected in the relationship between the EU and its citizens. The situation
is difficult since it is unique. We will have to free ourselves from
conventional concepts of democracy that work well within states, but might not
succeed in the same way on an international level.[87]
On the other hand the unknown situation provides the opportunity to tread new
ground and develop new structures perfectly fit for the international experiment
of the European Union.
The member states meet this challenge by organizing
the European Union according to representative elements and also try a cautious
step towards the implementation of direct democracy in the EU. In the course of
history, the member states have learned the important lesson that the EU will not work successfully
without its citizens. It also became clear that the closer the Union gets, the
more have the citizens to be integrated into the European decision making
process. The European Citizens’ Initiative constitutes only a small step on
this still very long way to go.
[1] See
Craig Whitlock, France rejects
European Constitution,
http://www.washingtonpost.com/wp-dyn/content/article/2005/05/29/AR2005052900644.html (16/2/2016) and
Dutch say “devastating no” to EU constitution,
http://www.theguardian.com/world/2005/jun/02/eu.politics (16/2/2016). Many
French voters who opposed the constitution said they were angry that they had
not been given a chance to vote on E.U. expansion from 15 to 25 members last
year in 2004.
[3] See Marcus Theurer, Worüber
die Briten wirklich abstimmen,
[4] Cf. Heinrich Best, György Lengyel, and
Luca Verzichelli,
Introduction: European integration as an elite project, in: Heinrich Best, György Lengyel, and
Luca Verzichelli
(eds.), The Europe of Elites, A Study into the Europeanness
of Europe’s Political and Economic Elites, Oxford 2012, p.1-13; Thomas Risse,
European Institutions and Identity Change: What Have We Learned?, in: Richard K. Herrmann/Thomas
Risse/Marilynn
B. Brewer (eds.), Transnational
Identities, Becoming European in the EU, p. 247, 260 et seq.
[5] See,
for example, the Website of the European Commission,
https://eacea.ec.europa.eu/europe-for-citizens_en (12/2/2016).
[6] http://europa.eu/legislation_summaries/glossary/democratic_deficit_en.htm
(12/2/2016). Many voices have critizised the ‘democratic
deficit’ of the European Union, e.g. the former judge of the German
Constitutional Court, Dieter Grimm,
Der Mangel an europäischer Demokratie, http://www.spiegel.de/spiegel/print/d-13679731.html (12/2/2016). See also the declaration of 90 European intellectuals, including
Jürgen Habermas,
Nobel Literature prize winners Herta Müller and Imre
Kertesz ‘We
are Europe! Manifesto for rebuilding Europe from the bottom up,’ initiated by
sociologist Ulrich Beck and Green
politician Daniel Cohn-Bendit, cf. Nancy
Isenson, European intellectuals warn of EU’s
demise, http://www.dw.com/en/european-intellectuals-warn-of-eus-demise/a-15924248 (16/2/2016).
[7] See
Henry McDonald, Ireland votes in
favor of Lisbon Treaty,
http://www.theguardian.com/world/2009/oct/04/ireland-votes-yes-lisbon-treaty (16/2/2016); and
one year before Henry Mc Donald/Allegra Stratton, Irish voters reject EU treaty, http://www.theguardian.com/world/2008/jun/13/ireland (16/2/2016).
[9] Cf. Deirdre Curtin/Tatevik Manucharyan,
Legal Acts and Hierarchy of Norms in EU Law, in: Anthony Arnull/Damian Chalmers (eds.), European Union Law,
Oxford 2015, p.103, 122.
[10] Cf.
http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=URISERV%3Aai0033 (16/2/2016), http://europa.eu/rapid/press-release_MEMO-09-531_de.htm?locale=en (16/2/2016);
Thomas Hieber, Die Europäische
Bürgerinitiative nach dem Vertrag von Lissabon, Tübingen 2014, p. 13 et
seq.
[11] See
http://ec.europa.eu/citizens-initiative/public/welcome (16/2/2016). Cf. also the reportage on
you tube that explains how the European Citizens’ Initiative works, https://www.youtube.com/watch?v=HDJxXiYlK48 (16/2/2016).
[13] For international law World War II has
been a key event. After the second World War the
states were united by the strong will to do everything to never ever have
another comparable international disaster again. From this arose a firm
determination to cooperate amongst states which led to
the foundation of numerous international organizations as a consequence. The
importance of international organizations as key players on the international
scene is one of the major characteristic factors of modern international law
(besides the prohibition of the use of force in international relations laid
down in the UN Charter and the increased importance of international human
rights), See, for example, Matthias Herdegen, Völkerrecht, 14th
edition, München 2015, § 2 para.
22 et seq.
[14] Treaty on the Functioning of the
European Union, Consolidated Version of the Treaty - Protocols - Annexes -
Declarations annexed to the Final Act of the Intergovernmental Conference which
adopted the Treaty of Lisbon, signed on 13 December 2007, Official Journal
C 326, 26/10/2012 p.1 – 390.
[15] Cf. BVerfGE
89, 155, guiding principle 8, judgement
of 12/10/1993.
[16] Emphasis added.
[17] See
ICJ, judgement of 5 February 1963, Case van Gend&Loos, point 3.
[18] Emphasis added.
[19] Cf. ECJ, judgement
of 15 July 1964, Case Costa/ENEL, point 3.
[20] See
ECJ, opinion 1/91 of 14 December 1991, Draft agreement between the Community,
on the one hand, and the countries of the European Free Trade Association, on
the other, relating to the creation of the European Economic Area, point 1. The
opinion goes on: ‘The Community treaties established a new legal order for the
benefit of which the States have limited their sovereign rights and the
subjects of which comprise not only Member States but also their nationals. The
essential characteristics of the Community legal order which has thus been
established are in particular its primacy over the law of the Member States and
the direct effect of a whole series of provisions.’
[21] Emphasis added.
[22] See
above.
[23] Cf., for example, Mark Mardell, Could the EU fall apart completely?,
http://www.bbc.com/news/world-europe-33162306 (23/2/2016); Jim
Yardley, Has Europe reached the breaking point?,
http://www.nytimes.com/2015/12/20/magazine/has-europe-reached-the-breaking-point.html?_r=0 (23/2/2016).
[24] The fact that the founding treaties of
the EU did not contain such a clause, is astonishing
from an international law perspective. It shows the firm determination of the
founding member states to form a strong and maybe even permanent union. The
idea of a permanent union is indicated in some judgements
of the ECJ, e.g. ECJ, judgement of 15 July 1964, Case
Costa/ENEL, point 3: ‘By creating a community of unlimited duration, [...] the member states have limited their sovereign rights and have thus
created a body of law which binds both their nationals and themselves’.
[25] A totally different question is whether it seems at all
desirable to turn the European Union into a federal state. At present, the EU
clearly does not meet the criteria of a federal state. Especially the principle of conferral in article 5 para.
1, 2 TEU which keeps state sovereignty with the member
states and not with the EU, indicates that the powers of the EU are obiously limited as that of an international organization.
[26] See,
for example, the former Vice-President of the European Commission Viviane Reding,
Why we need a United States of Europe now, http://europa.eu/rapid/press-release_SPEECH-12-796_en.htm (26/2/2016); the Italian Prime
Minister, Matteo Renzi, cf.
Martin Banks/Nick Squires, Italy to push for ‘United States of Europe’ when it
holds the EU presidency,
http://www.telegraph.co.uk/news/worldnews/europe/eu/10918134/Italy-to-push-for-United-States-of-Europe-when-it-holds-the-EU-presidency.html (23/2/2016); the
movement Paneuropa Union, http://www.paneuropa.org (23/2/2016).
[27] Cf. 2 BvE 2/08 et al., judgement of 30/6/2009, para.
264,
http://www.bverfg.de/entscheidungen/es20090630_2bve000208.html (23/2/2016).