EU as a Polity – What Type of Legitimacy Standards?

1. EU as a Polity – What Type of Legitimacy Standards? Prof. dr Miodrag Jovanović

2. Legitimacy – Preliminary Definitions • Legitimacy is the popular acceptance of a governing law or régime as an authority. • “The argument of the [Second] Treatise is that the government is not legitimate unless it is carried on with the consent of the governed.” (J. Locke) • Legitimacy “involves the capacity of a political system to engender and maintain the belief that existing political institutions are the most appropriate and proper ones for the society.” (Seymour Martin Lipset) • Providing implicit or explicit consent decisively depends upon the belief of those governed that their overall opportunities might be enhanced under a particular governing body(ies).

3. More EU Integration = More Opportunities?

4. Challenges to the Political Integration of the EU • Post-Maastricht, Brunner Case before the BVfG (1993), three interconnected findings of the Court: • 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; • 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; • 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

5. 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.

6. 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.”

7. Openness towards EU v. Principle of conferral • The principle of democracy, which is measured against the standard of the right to vote, is interpreted within the objective of ‘openness towards EU’ • At the same time, this openness has to be waged with the ‘principle of conferral’ and the respect for ‘constitutional identity’ of Member States

8. What constitutes the ‘constitutional identity’ of a democratic state? “European unification … may, however, not be realized in such a way that the Member States do not retain sufficient room for the political formation of the economic, cultural and social circumstances of life. This applies in particular to areas which shape the citizens’ circumstances of life … in particular the administration of criminal law, the police monopoly, and that of the military, on the use of force, fundamental fiscal decisions on revenue and expenditure, the shaping of the circumstances of life by social policy and important decisions on cultural issues such as the school and education system, the provisions governing the media, and dealing with religious communities.”

9. The Struggle over Kompetenz-Kompetenz • The Basic Law prohibits the transfer of competence to any EU body which would decide on its own competence • “The principle of conferral is therefore not only a principle of European law but, just like the European Union’s obligation to respect the Member States’ national identity, it takes up constitutional principles from the Member States.” • “it must be possible within the German jurisdiction to assert the responsibility for integration if obvious transgressions of the boundaries take place when the European Union claims competences ... and to preserve the inviolable core content of the Basic Law’s constitutional identity by means of a identity review.”

10. ECJ and the Integration through Law • Insofar as “[t]he Maastricht decision’s main message was to the Court of Justice” (Karen Alter), one can also argue that the Lisbon decision was once again targeted primarily to the ECJ • In the1963 Van Gend en Loos decision, the ECJ stated that “the Community constitutes a new legal order” and that it can have direct effect on citizens of the Member States. This decision was in 1964 followed by the one in the Costa case, which established the supremacy of the EC law over the law of the Member States. • As of then, the EU law managed to acquire authority and to be obeyed by Member-States

11. Reconciling the Narratives - “Pluralist Approach’ • “Within a pluralist framework, it does not make sense to speak of a final arbiter of constitutionality” (Kumm) • This approach argues that “relations between states inter se and between states and the Community are interactive rather than hierarchical” (MacCormick), that is, they are “horizontal rather than vertical – heterarchical rather than hierarchical.’ (Walker) • Accordingly, “there can be no final ‘authority of authorities’, - no übersovereign of the various sovereigns, and the point at which the various sovereign law-givers are unable to achieve normative convergence on the basis of their different validity claims is also the point at which we run out of legal solutions.” (Walker)

12. What is the Source of Authority of the EU Law (Polity)? First Answer • Weiler introduces the concept of “constitutional tolerance”, which is the basis of “constitutional discipline” in the daily functioning of the EU legal and political order • Constitutional actors in Member States do not follow this discipline because “they are subordinate to a higher sovereignty”, but rather because they exercise a “continually renewed, autonomous, and voluntary act of subordination”. • This acceptance and subordination is “an act of true liberty and emancipation from collective self-arrogance and constitutional fetishism, a high expression of constitutional tolerance.” Its significance is particularly visible in the daily habits and practices of public administration, but it is about to become routine in policy-setting forums as well. • This ‘constitutional tolerance’ is the “defining spiritual Grundnorm” of the EU constitutional architecture

13. What is the Source of Authority of the EU Law (Polity)? Second Answer “a far-reaching process of independence of political rule for the European Union ... [is] a result of the freedom of action of the self-determined people …such steps of integration must be factually limited by the act of transfer and must, in principle, be revocable. For this reason, withdrawal from the European union of integration (Integrationsverband) may, regardless of a commitment for an unlimited period under an agreement, not be prevented by other Member States or the autonomous authority of the Union. This is not a secession from a state union (Staatsverband), which is problematical under international law ... but merely the withdrawal from a Staatenverbund which is founded on the principle of the reversible self-commitment.” (par. 234 of the BVfG’s Lisbon Decision)

14. ‘Withdrawal Clause’ of the Lisbon Treaty • Any Member State may voluntarily “decide to withdraw from the European Union in accordance with its own constitutional requirements” • Withdrawal (secession) mechanisms 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 federation; • Federal Primacy, which implies absolute prohibition of a Member State’s withdrawal; and • Federal Control, where a Member State retains its sovereign right of withdrawal, but subject to negotiations with and approval of remaining units of the federal polity This clause is a strong indication that the legitimacy of the EU depends upon the basic consent of its Member States.

15. Liberal-Democratic Type of Legitimacy for the EU • Beetham and Lord call for a more direct form of legitimacy, grounded in the liberal-democratic criteria of normative validity and legitimation. These are the following criteria: • Performance (effective performance in respect of agreed ends); • Democracy (democratic authorisation, accountability and represenation); and • Identity (agreement on the identity and boundaries of the political community).

16. Performance criterion - Deficits • ideological disagreements over the definition of ends and purposes that the EU should serve: • certain governmental functions are irreducibly national in character and as such cannot be transferred to the EU level • disagreements about political ideology that should generally be followed in the development of the EU • the effectiveness of decision-making procedures

17. Democracy Criterion - Deficits • Regarding authorisation, neither the members of the Commission, nor the Council of Ministers are directly authorised by voters • Collective accountability of either the Commission or the Council of Ministers directly to the European Parliament is still limited • Regarding representation, elections for the European Parliament have the character of “second-order” elections, with low turnout, and the outcomes are primarily “determined by the respective national standing of the competing parties, and by national agendas”

18. Identity Criterion - Deficits • cautious optimism about the development of a particular EU identity, based on a common European citizenship and a shared political future.