Thursday 2 July 2009

EU: Far from perfect union

The Philadelphia Convention (1787) made the great leap from the Articles of Confederation to a federal Constitution for a more perfect union, to enter into force between the ratifying states after nine ratifications:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure to Blessings of Liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

The Europeans, more mired in the past than committed to the future, were able only to start on the road towards an ever closer union among the peoples of Europe.

Small steps have brought the project of European integration forward while enlarging the union.

The German Federal Constitutional Court has ruled on the amending Treaty of Lisbon, and we follow its reasoning fairly closely:

The European Union has a structural problem.

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. In contrast, the internal decision-making and appointment procedures remain predominantly committed to the pattern of an international organisation, i.e. are analogous to international law; as before, the structure of the European Union essentially follows the principle of the equality of states.

As long as no uniform European people is the subject of legitimisation, the peoples of the European Union, which are constituted in their Member States, remain the decisive holders of public authority, including Union authority.

In Germany (and elsewhere), accession to a European federal state would require the creation of a new constitution, which would go along with the declared waiver of the sovereign statehood safeguarded by the Basic Law (and national Constitutions).

The European Union continues to constitute a union of rule (Herrschaftsverband) founded on international law, a union which is permanently supported by the intention of the sovereign Member States. The primary responsibility for integration is in the hands of the national constitutional bodies which act on behalf of the peoples.

With increasing competences and further independence of the institutions of the Union, safeguards that keep up with this development are necessary in order to preserve the fundamental principle of conferral exercised in a restricted and controlled manner by the Member States.

With progressing integration, fields of action which are essential for the development of the Member States’ democratic opinion-formation must be retained. In particular, it must be guaranteed that the responsibility for integration can be exercised by the state bodies of representation of the peoples.

The further development of the competences of the European Parliament can reduce, but not completely fill, the gap between the extent of the decision-making power of the Union’s institutions and the citizens’ democratic power of action in the Member States.

Neither as regards its composition nor its position in the European competence structure is the European Parliament sufficiently prepared to take representative and assignable majority decisions as uniform decisions on political direction.

Measured against requirements placed on democracy in states, its election does not take due account of equality, and it is not competent to take authoritative decisions on political direction in the context of the supranational balancing of interest between the states.

It therefore cannot support a parliamentary government and organise itself with regard to party politics in the system of government and opposition in such a way that a decision on political direction taken by the European electorate could have a politically decisive effect.

Due to this structural democratic deficit, which cannot be resolved in a Staatenverbund (Confederation), further steps of integration that go beyond the status quo may undermine neither the States’ political power of action nor the principle of conferral.

The peoples of the Member States are the holders of the constituent power.


A more perfect union

As long as (roughly) equal states hold the power in the European Union, the democratically representative bodies (parliaments) of the peoples of the member states have to guard their interests, and the German Federal Constitutional Court is going to rule on each case brought before it.

The alternative is a European people (EU citizens) as the holder of the constituent power.

This requires a federal Constitution, based on the equality of citizens. Naturally, it would have to safeguard the fundamental rights of its citizens.

In a federal union (Federal Republic of Europe) the European Parliament would be directly elected by the citizens, according to a uniform electoral code, and their vote would determine the European level government through European level and regional parties. (A second chamber for the representatives of the states is conceivable.)

The structural problem and the structural democratic deficit would be eliminated by the federal constitution.


Is anything to be gained by a federal constitution, a more perfect union?

The interests of EU citizens can be better protected and the European Union can more effectively act as a force for good in the world, if the union conducts our external relations, with all disposable means (foreign, security and defence policy, including our common defence).

“Domestic tranquility” relates to our security, to our individual freedoms and justice. Legitimate lawmaking and accountable government are needed at the European level.

The federal constitution needs to be a living document, subject to needed amendments by the Parliament (Kompetenz-Kompetenz).

Our security and prosperity could be better guaranteed in a federation, but major steps are needed. The Treaty of Lisbon is still far from that more perfect union.

Ralf Grahn


  1. While I think the Bundesverfassungsgericht was a bit too harsh on the possibilities for the EP, I think it does highlight that there needs to be a bigger effort in involving citizens in European politics. While some institutional change is needed for this to happen, and the Lisbon Treaty does make some good changes in this direction, encouraging political participation that has a clear impact in the way the EU is run needs to be the goal now if the EU is to be brought closer to citizens.

    Until we have clearer and more engaging party politics at the European level, I think radical constitutional change would be a bad move.

  2. You chose a name (Federal Republic of Europe) that I also discussed (, but at last have rejected.
    I hold an opinion "federalization is democratization". But I believe not that current treaties can be improved so that "more perfect union" may be created. How could "improving" of international treaties establish a federal constitution?

  3. Eurocentric,

    How much potential do you see for more engaging party politics at European level, without necessitating institutional change?

  4. Citizen of Europe,

    If you want perspectives on the name of the unborn federation, you could read Umberto Campagnolo: Repubblica Federale Europea.

    You are right, federalism and democracy go hand in hand.

    Quite right about treaty amendments, too. Future treaties can introduce more democratic practices, but only a real Basic Law / Constitution based on the citizens can make the EU into a federation.

  5. Institutional change is definitely needed - making the Council more transparent, giving the EP more power and the ability to elect the Commission, making the Commission more accountable, etc.

    Institutional change can encourage the development of party politics; however the constitutional change I meant was an increase in competences, etc. I would say that we need to develop the political side and civil society sphere of the EU so they can support an EU with greater competences.

    Perhaps the distinction between constitutional change and institutional tinkering is clearer in my head than what I'm expressing.

  6. Eurocentric,

    Indeed, it feels like a hen and egg problem - which comes first?

    The European level parties failed dismally in the run-up to the June 2009 European elections.

    The PES engaged activists in building the election programme. The EPP formally nominated a candidate for Commission President, although it only anointed the choice of heads of state or government (national party leaders). The Greens had the most European platform (and were successful).

    Otherwise the European level parties are very old-world: no interaction, no activists ... nothing to engage anyone.

    While the institutions shape the parties and politics, you are right in that European level parties could do a lot more to foster participation.

    With the exceptions above, one gets the feeling that they have not even thought about it yet.

  7. I agree with Grahnlaw that a need of a constitutional turn and readiness of political parties go hand in hand. True all-European politics will not be without all-Europe political arrangement and vice versa.


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