Following the Second World War, Europe was faced with an unprecedented necessity and capability to restructure its economy. The European Coal and Steel Community was imagined as a means for the victorious French to capitalize on German resources in the Ruhr and Saar areas, and in so doing, reduce the risk of remilitarisation. However, the ECSC soon extended to include six nations in total, and had reaches far beyond the nationalistic Gaullist principles of occupying and subjugating post-war Germany. The community instigated the unification of Western Europe by establishing a common market under the guise of supranational cooperation.
The aim was clear: to strengthen domestic economies and ensure that war between capitalist, democratic European nations would be impossible. Acting unilaterally to secure these national self interests would not have been successful, and undoubtedly, it was the ECSC that provided the foundations for the union Europe now enjoys. But as the reaches of the European Union extend beyond commercial interests, there are those who contend that integration is threatening the legal authority and sociocultural identities of Member States, thus failing to preserve their sovereignty in the international system.
EUROPEAN INTEGRATION & SUPRANATIONALISM AS LIMITATIONS TO NATIONAL SOVEREIGNTY
While Member States join the EU to promote their national interests, some would posit that despite rational choice theory, the complexities and implications of European integration ultimately disenfranchise the legitimacy of European Member States at national levels. As a condition of membership, Member States must adhere to a vast number of commitments that may place the needs and interests of the community over that of the individual member state. The principles of direct effect established in Van Gend en Loos require that Member States honour and recognise European mandates which confer rights and impose obligations in regards to the individual.
In this way, European Law is “no longer simply about telling people what they do. instead, it acquires a more enabling role. The formal norms provide a backdrop against which informal, collective arrangements are put in place […] bringing actors together both to maximize their resources and to develop shared commitments to resolving common problems on the basis of shared criteria” (Chalmers). European Union has in many ways become more than a community of shared economic interests, but a symbol of transnational ideals.
In another landmark case, Costa v ENEL, the European Court of Justice established the legal supremacy of European Union Law over those of Member States. As “unilateral act[s] incompatible with the concept of the Community cannot prevail,” it is practicaly impossible to find any instance wherein a policy or law is enacted by a member state in conflict with an EU measure (Article 288 TFEU). Indeed, the primacy of EU law is seen by many as the most sincere manifestation of its sovereignty in competition with its many Member States, as national constitutional courts rarely constrain or challenge the authority of EU law (Chalmers).
This hierarchy is complimented by the doctrine of pre-emption, which ascertains the appropriate consequences in light of a conflict between European and national laws. This tripartite framework classifies such overlaps in one of three categories. In the most restrictive category, “field pre-emption,” the EU claims a jurisdictional monopoly over a policy field and national laws may only be implemented with explicit authorisation from the Union. “Rule pre- emption” establishes a shared jurisdiction in the given area, but national legislation will nevertheless be set aside in favour of EU measures. Even in the most lenient of circumstances, Member States are prohibited from obstructing the effectiveness of EU policies under the guidelines of “obstacle pre-emption.” (Chalmers).
The European Union also reserves the right to exercise exclusive competence in certain policy fields. In so doing, national courts must wholly surrender jurisdiction over areas of customs union, internal market and competition rules, monetary policy, marine conservation as fisheries are concerned, and the common commercial policy (Chalmers). Failure to reach consensus in these areas would delegitimise the basic principles of economic cohesiveness, which would ultimately weaken and destabilise the political threads holding the community together.
RESTRICTING THE REACH: MEMBER STATES MAINTAINING SOVEREIGNTY AGAINST THE EU
However, we must recognize the particular “safeguards” that have been implemented within the treaties. There exist several limitations of EU legal authority that protect the national sovereignty of Member States. As J. Weiler suggested, “the union is not a state and the commission is not a government – it is instead a mere functional system of sharing or legislative powers to carry though common projects.”
One must ask if it is even possible to completely transfer authority from Member States to the European Union in areas such as criminal law, the value judgements of which depend so deeply on the unique context of varying societal norms. Discerning a universal criminal code which satisfies the diverse precedents and cultures spanning 27 Member States would be a legislative headache, if not an impossibility.
Furthermore, Article 5 of the TEU and Article 1 of the TFEU establish the principle of conferred powers. It is important to remember that while treaties govern the EU as a whole, the power to establish, change &/or terminate their authority rests with the Member States. They cannot “found the EU in some more profound way” (Chalmers). Therefore, conferred powers reinforces sovereignty at national level by preventing the EU from exercising power that has no competence within the treaties. Article 2 TFEU further delineates the specific areas in which the EU may exercise its legal authority, and to what extent it is permitted to intervene in the name of community harmonisation. This is similar to the concept of enumerated rights found within the American Bill of Rights, whereby powers not expressly delegated to the federal government fall under the provision of the states and citizens.
Like the principle of conferred powers, subsidiarity protects national identities and legal powers by authorising the Union to intervene “only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States.” (Article 5 TEU). The EU therefore recognises that issues are best handled as close to the people as possible, and that oftentimes, local authorities are more capable problem solvers than those at international levels.
Proportionality likewise mediates the intrusiveness of EU law, and requires that any intervention at EU level ought to be scrutinised and pass a test of rational basis: the action must be justifiable, “clearly suitable for realising the objectives set by the administration,” and “not out of proportion to the ends sought” (Chalmers). Subsidiarity in this way protects the political and sociocultural norms of the Member States by limiting the extent to which EU laws can intervene. Self-government is championed, insofar as said governance does not conflict with the protective codes and rules established by and agreed for the community as a whole.
Even when considering the primacy of EU law mentioned earlier in this essay, one must consider that while “primacy is almost always accepted,” in return it “has traditionally been confined to fields that amount to only a small proportion of what is invoked before domestic courts” (Chalmers). In contrast to exclusive competence, the framework of the EU allows for fields of shared competence, whereby Member States are afforded the opportunity to legislate in areas free from Union restrictions. Again, this arrangement demonstrates a striking similarity to federalist compromise.
In comparing the body of EU treaties to that of a constitution, Weiler argues that indeed “the Union has become indistinguishable from a federal state, in that the doctrines of direct effect and its derivatives, supremacy and implied powers ensure that Union law will enjoy the position of federal law rather than suffer the status of international law […].” Whether or not this is entirely accurate or even desirable remains a point of contention, but Weiler’s observation nevertheless illustrates the dynamics of cooperative federalism that are still evolving within and between the Member States.
Sovereignty is also respected within the European Union in regards to leadership in Brussels. Although democratic deficit is a real concern, the framework of the Union aims to provide a tangible link between the citizens of Europe and the many polities and institutions at the European capital. The European Council, though it holds no real legislative power, provides heads of government the opportunity to set the general direction and strategy of the Union. Obviously, heads of government within this institution take the interests of their home nations to heart.
Though the Commission is charged with pursuing the interests of the EU, it is worth noting that its ability to formally propose legislation is done so for the sake of cohesive unity. As a legislative body with budgetary control, the European Parliament, whose members are elected directly and represent the citizens of Member States, provides a check on the executive and a valuable forum for discourse. While voter turnout in European elections remains low, the foundations for greater civic engagement does exist.
CONCLUSION & FURTHER POINTS OF DISCUSSION
Nevertheless, low voter turnout is but one of the elements that contributes to democratic deficit within the European Union structure. A lack of buy-in on behalf of the constituency may be exacerbating the alienation felt between citizens, their representatives in Brussels, and EU legislation at large. While the option for a Citizens Initiative does exist, it has yet to be used, and one may wonder what issues may implicate one million or more citizens to galvanise behind a proposition.
Furthermore, in instances of crisis – such as the current global economic recession – nationalism and distrust of technocratic elites often arise. Is the EU even adequately equipped to address the questions that might be better left answered by the individual Member States? Is this a time to reevaluate the interconnectedness of the Eurozone, if not the European Union project at large? Pollack paints the EU “as an emerging system of multi-level governance in which national governments are losing influence in favor of supranational and sub-national actors, raising important normative questions about the future of democracy within the EU.”
However, it could be argued quite easily that in juxtaposition to an ever-increasing sphere of EU-level jurisprudence, the sovereignty and cognizance of national constitutions has been strengthened within respective Member States. As pan-European treaties facilitate the functions of supranational institutions and agreements, domestic constitutions and courts by contrast reassert a collective and unique identity. National legislation not only underscores legal obedience and the distribution of political power within a state, but collectively binds the moral commitments of the constituency in a way European-wide treaties have thus fair failed to do (J. Weiler, 2002).
A reevaluation of identities therefore would solidify the fundamental principles upon which the Union was built. Perhaps there is no better time than a crisis – economic, cultural or otherwise – to challenge the existing ideology of integration. For the sake of its survival, the Union may need to call upon the Member States to assert and preserve national interests it was founded to protect in the first place.
© NaturAdvocate, written November 2011
Mark: 70% (UK) or A (USA)
Chalmers et al, European Union Law: Cases and Materials 2nd Ed. Cambridge University Press, 2010.
Pollack, Mark A. 2005. Theorizing the European Union: International Organization, Domestic Polity, or Experiment in New Governance. Annual Review of Political Science 8: 357-368
Weiler, J. “The Commission as Euro-Skeptic: A Task Oriented Commission for a Project- Based Union, a Comment on the First Version of the White Paper.” in C. Joerges et al. (eds.) Symposium: Mountain or Molehill? A Critical Appraisal of the Commission White Paper on Governance, Jean Monnet Working Paper 6/01 (EUI and NYU, 2002).
Weiler, J. ‘On the Power of the Word: Europe’s Constitutional Iconography’ (2005) 3 I-CON 173