Chapter 2: A New Form of Organisation: the Supranational Union |
01.03.01 |
|
Translation:
Dr. Nicola Rowe, Hamburg
13.
A.
With the European Union - and even earlier, with the
late European Communities - European integration has produced a European model
for a new form of community. Four phases
of development can be identified, beginning with a specialised
supranational organisation which controlled the coal and steel economy (1952).
During the second phase, a limited, institutionalised Western European
community of states developed (1958 - 1967). Limited to specific areas, it
consisted of three supranational organisations which formed an integrated unit
of activity and influence. During the third phase, this community was
intensified and enlarged several times, growing beyond the concept of
restriction to individual economic areas and becoming a general organisation
of integration (1967 - 1987). The specialised organisation [Zweckverband] had
given rise to an expandable institutional framework from which continuous,
all-encompassing integration could proceed. The fourth phase (since the entry
into force of the European Single Act in 1987) has been a phase of
consolidation and further development of the general organisation of
integration [Integrationsverband]. The importance of that organisation is not
diminished by the existence of other European institutions, or of institutions
to which European states belong (the Council of Europe, the OSCE and the EEA).
[15]
14.
The European Union is a single,
coherent unit with a plural
institutional and legal basis. It should not be understood as a simple
grouping of discrete units on the basis of substantive law
[materiell-rechtlicher Verbund], as a unitary organisation whose component
units have fused and become one, or as a structure resting upon different
pillars. Rather, it is a composite
organisation, represented by various
actors, or, more specifically, by compounds of actors (the Communities, with
the plurality of their organs) and by individual institutions acting directly
for the whole (the organs to which the TEU entrusts particular tasks). The
Communities are components of the Union; their founding treaties are part of a
single, coherent legal order. As do some of its component parts - the EC,
EURATOM and the ECSC - the Union has international
legal personality.
[16]
15.
Particular
characteristics distinguish the European Union as a governing entity.
These characteristics enable a new category to be developed within the existing taxonomy. The most important characteristic is the Union’s
status as a supranational organisation whose purpose is integration
[supranationaler Integrationsverband]. Selected partners have come together in
a long-term, all-embracing union, recognising that the union has a value in
and of itself with regard to the common future they envisage. That future goes
well beyond fulfilling the tasks which the Union has been assigned. The Union
performs its integrative function primarily by carrying out tasks in the
public sphere through the exercise of supranational public power. It also
provides the institutional (organisational) framework for formalised and
institutionalised intergovernmental
co-operation,
however, and it provides a territory for the substantive law through which
integration is carried out. As a general organisation of integration, the
Union also provides an adequate conceptual framework for tasks of all kinds
from any political sphere. The Union’s dynamic quality distinguishes it both
from traditional kinds of international organisation and from the state.
[17]
16.
The European Union’s particular characteristics place it so far beyond
the conventional supranational organisation that analysis of the latter is
only partly applicable to the former. The Union should, then, be classified
under a new kind of state community, which it is appropriate to call a supranational
union, and which can be defined
as follows: a supranational union is an international organisation founded by
several states for the purpose of integration which tends to evolve
continuously, which is conceptually open for tasks of every kind, and which
accomplishes its integrative function primarily by carrying out a wide variety
of tasks in the public sphere itself, by exercising public power in its member
states.
[18]
17.
B.
Having established that the European Union represents a
new form of organisation, we must now determine its status and legal nature. A
supranational union embodies the characteristics of both a supranational
organisation and of a confederation of states, yet it is even more than this.
It is thus more than merely an international or supranational organisation,
more than a confederation, and more than a mere combination of these forms of
organisation.
[19]
Some of the European Union’s characteristics are reminiscent of a particular
kind of federal state. Yet the European Union is not a state, and it cannot
become a state without leaving the organisational form of the supranational
union behind. The European Union is a novel, independent,
legally distinct form of organisation on
the basis of public international law.
[20]
18.
Public international law mandates the distinction between non-state
organisations and states. Based on the principle of the territorial state, the
right to self-determination and the legal concept of sovereignty, public
international law requires that it be possible conclusively to identify those
“natural“ units of accountability [“natürliche” völkerrechtliche
Zurechnungseinheiten] (states, in other words) which ipso facto enjoy
recognition and all legal positions deriving from that status at public
international law. Many vertically interconnected governing entities may
co-exist on different geographic scales (local, regional, national,
geo-regional, global), but only one may claim statehood at any one time. Only
this one will enjoy the advantages which statehood confers: the protection of
its existence by public international law, sovereignty, and the power deriving
from sovereignty to control all public power exercised on its territory.
[21]
At present, international law does not allow hybrid forms between state and
non-state entities; nor will it recognise divided statehood.
[22]
In this strict, predefined scheme of classification, the supranational union
should be counted as an international entity. It cannot, therefore, be
understood as a state. In contrast to the federal state, the supranational
union is based upon the continued voluntary participation and co-operation of
the governing entities which it comprises.
[23]
But
clear parallels between a supranational union and a state are evident, and
these parallels will strengthen as any given union develops. The supranational
union’s dual nature as an entity which is not a
state but resembles a state has manifold consequences in the fields of law
and political theory.
[24]
19.
The supranational union has developed as a specific form of organisation designed for the transition from the
nation-state to the civilisation state [Kulturkreis-Staat].
[25]
Viewed objectively, this form of organisation is designed to bring
nation-states, which are increasingly overwhelmed by globalisation and
geo-regionalisation, together, integrating them through a process of
integration into a federal unification state [Vereinigungs-Bundesstaat]. This
objective purpose does not, however, mean that the supranational union cannot
fail. Nonetheless, the supranational union’s dynamism precludes long periods
of stagnation.
[26]
20.
The role of the supranational union does not only consist in fulfilling
particular tasks. It is also responsible for bringing its member states
together gently and incrementally and, later, for preparing for the the
foundation of the unification state, relying on the experience gained during
the integration process and alert to the problems which may accompany such a
step.
[27]
Yet,
while it may lay the groundwork for statehood, the union cannot itself survive
that transition. The transition presupposes that every participating state
make a declaration valid at public international law concerning the transfer
of statehood.
[28]
The rule of law would also require, in the case of most member states, that
new constitutions first be enacted. If, like the European Union, a
supranational union followed the rule of law, its organs would be obliged to
take steps to counter any tendencies among its member states to ignore
domestic constitutional provisions. Fears of a “slippery slope” towards a
federal European state are groundless for this reason alone.
[29]
21.
C.
(I.-V.) Two central tenets describe the status of the state in a supranational union. First, the state
has basic duties of membership that
follow directly and necessarily from its participation in a close political
community bent upon a common future. These duties exist, then, and must be
elaborated by courts and academics, even if they have not been regulated
explicitly, clearly and completely in the treaty of union. Some of them may
only be regulated on an abstract level via a general principle of loyalty
within the union [Unionstreue] (in the case of the European Union, see arts.
10 EC Treaty, 192 EURATOM Treaty, and 86 ECSC Treaty). Specifically, these
basic duties of membership include the duty to respect primary and secondary
union law, to co-operate with other member states and with the union’s
organs, to participate in those organs, and to evince loyalty and solidarity
towards the union and other member states.
[30]
22.
The second key tenet states that state sovereignty is unaffected until
such time, if any, as the union is transformed into a geo-regional unification
state. Sovereignty is absolute; as conceived by international law, it is
inseparable from statehood. It can, therefore, only be transferred as a whole,
and as part of a parcel along with statehood, and then only if the transfer is
accompanied by member states’ above-mentioned declaration concerning a
transfer of statehood. With that declaration, member states cease to be states
in terms of public international law, and their organisation of integration
loses the quality of a supranational union. Unaffected
state sovereignty is, then, a
necessary consequence of two coincident factors: first, the retention by
fundamental public international law of the basic concept of the exclusively
sovereign territorial state; second, the concept of non-statehood which
governs supranational union as a form of organisation designed for transition.
[31]
23.
The state’s unaffected sovereignty means that it retains unlimited
public power notwithstanding any “transfer” of sovereign rights. As a
“natural” unit of accountability at international law, the state is not -
indeed, cannot be - deprived of its control of every kind of public power
exercised on its territory.
[32]
Thus, investing the union with sovereign rights can refer neither to a genuine
transfer of sovereign rights from the states to the union, nor to a real
restriction on member states’ sovereign rights. It is impossible to conceive
of any way in which such a scenario could come to pass without challenging the
concept of sovereignty. Since sovereignty is the lynchpin of the
self-determination of peoples in territorial states, any challenge to this
basic concept would challenge the foundations of public international law
themselves. While a member state does not have the right to retake all public
power on its territory in defiance of the treaty of union, or to allocate that
public power anew, it certainly has the legal power [Rechtsmacht] to do so.
Sovereign acts undertaken by a member state which breach the treaty of union
are legally valid; sovereign acts of the union which, in breach of the treaty,
a member state declares null and void lose their validity on that member state’s
territory.
[33]
24.
The state’s unaffected sovereignty also means that it enjoys unlimited
legal capacity at public international law, even in those areas which the
treaty of union reserves to common or community foreign and defence policy.
Notwithstanding the process of integration, then, a member state is still -
potentially - an interesting partner for third parties.
[34]
A state also retains an unlimited legal capacity to determine its own organisation.
Viewed through the lens of traditional constitutional theory, this means that
a state’s pouvoir constituant remains unlimited even in an integrated state.
Constitutional law is still valid even where it contravenes union law, and can
be validly implemented and enforced. Admittedly, its interpretation must
accord as far as possible with union law, and its application can be
overridden by countervailing union law. In a non-state supranational union
with (sovereign) member organisations, however, no
conclusive (absolute) primacy of union law can exist, even where conflict
is at its most extreme. Nor can any such primacy be validly established in the
founding treaty.
[35]
25.
Despite the process of integration, ultimate responsibility
[Letztverantwortung]
[36]
rests with the state. Like any states, the member states of a supranational
union must provide their citizens with the certainty that freedom, security
and aid in case of need are provided for. Political theory postulates these
demands on the states as the converse of the sovereignty they enjoy. In an
integrated state, fulfilling that ultimate responsibility is increasingly
restricted: the state no longer fulfills certain tasks itself, but delegates
them to the union and to other international institutions, confining itself to
participation in those entities’ organs. However, a significant residual
component of the state’s ultimate responsibility lies in deciding how and to
what extent it will integrate into international and supranational structures,
and with whom it might enter into a supranational union. A state must always
be able to justify these decisions to its citizens. It is accountable not only
for those steps of integration which it has already carried out, but also for
those from which it has refrained, and for any resulting failure to cope with
the challenges of globalisation and geo-regionalisation. Thus, the ultimate
responsibility of the state can also be manifest in the state’s
decision
to leave one supranational union for another which promises more favourable
development, or to found a new supranational union with other states, some of
whom may well have been its integration partners in the previous union. This
important aspect of ultimate responsibility finds no echo whatsoever in the
opinion, currently widespread in Europe, that there can only be one European
supranational union, which will end up taking all European states within its
compass, and which any European state will have to take as it is for want of
alternatives.
[37]
26.
From the point of view of political theory, every member state has the right
to share in the decision-making process where any fundamental change to the
union is concerned. It is right, therefore, to continue to require
unanimous agreement both for changes to the treaty of union and for the
question whether to accept new members, even where the law of treaties would
permit other approaches.
[38]
From the point of view of political theory,
the union also needs to be designed according to the the principle
of the equality of member states [Grundsatz der mitgliedschaftlichen
Gleichheit]. That principle takes substantive (material) equality of member
states as its goal, and reflects those states‘ recognition of each other as
equal partners in the process of integration. Calls for a right of veto for
large member states, or for those states which contribute more to the union
financially than they receive in return, should thus be rejected. Unequal
representation in the union’s organs, or an unequal weighting of votes are
justifiable, however, on the basis of the principle of the equality of union
citizens.
[39]
27.
(VI.) Two of the most delicate problems surrounding the
figure of the supranational union involve the secession and expulsion of member states. Addressing these issues at
all is a tacit admission that the process of integration is likely to involve
not only pleasantness as countries draw closer, but also disappointment and
conflict. From the point of view of political theory, solutions are required
which enable a legally straightforward, minimally burdensome separation. It is
clear from the principle that integration always be voluntary that states must
be able to leave the union. The fact that sustainable, long-term integration
is predicated upon a sustainable, long-term commitment from every member state
points to the same conclusion, as that commitment must be frequently
reaffirmed or renewed in a ceaseless, free political process. Moreover,
ultimate state responsibility presupposes that a state be able to leave a
supranational union. In any case, it would be impossible, from a pragmatic
point of view, to keep a state which intends to leave, since that state would
be able to use the legal power deriving from its sovereignty to ensure that
its membership of the union became imperceptible on its state territory from
that point on. ‑ Expulsion must be possible as an extreme measure,
used to prevent serious violations of union law within a member state from
damaging the union’s credibility as a legal community or, indeed, its
efficiency as a governing entity, since damage of that kind would destroy the
union’s legitimacy. A community of integration must be able to react, too,
if one of its partners turns away from the community’s common fundamental
values and ideas. As a sanction, expulsion provides the necessary counterpart
to unaffected state sovereignty.
[40]
28.
While secession by treaty is a legally straightforward solution, it is
scarcely likely to be practicable, requiring as it does a unanimous agreement
among member states. It is advisable, therefore, for the modalities of
secession and expulsion (notice period, form, procedure, political basis,
appeals procedure) to be regulated in the treaty of union. The right to leave
the union should be guaranteed explicitly, and the competence to expel should
be restricted to two instances: a frequent or continuous material breach of
the treaty of union, and the departure of one member state from the community’s
shared values.
[41]
29.
The founding treaties of the European Union do not address these issues.
The Union is stated to be valid “for an unlimited period” (arts. 51 TEU,
312 EC Treaty, 208 EURATOM Treaty), but this should be understood to mean, not
“forever”, but “for an indeterminate period of time”. The treaties’
silence does not offer grounds to infer that their signatories intended to
preclude member states from leaving the Union. Instead, the treaties should be
interpreted with reference to the general law of treaties. That law is
applicable notwithstanding the issue of subsidiarity because the founding
treaties make no provision regarding the issues at hand. Technically,
secession is equivalent to denunciation of the founding treaty. Expulsion can
only be realised as the collective exercise of a right to denounce the
founding treaty between the remaining member states and the defaulting state.
The Union has no competence to expel members: that competence would need to be
explicitly provided for by treaty.
[42]
30.
The law of treaties offers several possible grounds on which a member
state might leave a supranational union. A right of secession on the basis of
a material breach of treaty by other member states (art. 60(2) lit. a of the
Vienna Convention on the Law of Treaties) is unlikely to be of practical
relevance, since member states have recourse only to those measures for which
the treaty of union provides (art. 60(4) Vienna Convention, and, for the EU,
arts. 292 EC Treaty, 193 EURATOM Treaty and 87 ECSC Treaty). It is possible,
nonetheless, to imagine circumstances under which a state might make use of
that right. If, for example, the other member states and the union’s organs
collectively committed fundamental violations of the treaty, then a dissenting
member state might, after fruitless recourse to the prescribed remedies, make
use of the right - for example, where the union’s organs, with the other
member states’ approval, “compensated” a refusal to accede to new union
competences by what was clearly a deliberately “over-generous”
interpretation of existing competence provisions. A right of secession on the
basis of a fundamental change of circumstances (art. 62 Vienna Convention)
will normally fail on the basis that the purpose for which the supranational
union was created was to enable a joint response to unforeseen developments
like economic crises. If, however, the membership of the union changes
unexpectedly (or if expected changes fail to occur) - for example, if a state
with which a member state has a particularly close relationship secedes, or is
refused membership in defiance of prior expectations -, then a right of
secession on the basis of a fundamental change of circumstances may be
present. - Generally, however, there will be no need for a state to have
recourse to such extraordinary grounds: if the treaty of union does not
explicitly restrict secession, a free
right of secession follows from the nature of the treaty as a treaty of
integration (art. 56(1) lit. b Vienna Convention). The goal of a treaty of
integration is not the short-sighted defence at any price of the level of
integration which has been achieved. Rather, the goal is sustainable,
long-term integration, and voluntary participation in every phase of the
integration process is an indispensable prerequisite if that goal is to be
reached.
[43]
31.
The expulsion of a member state is a measure of last resort. The law of
treaties permits expulsion where a fundamental change in circumstances (art.
62 Vienna Convention) or a material breach of treaty (ibid., art. 60(2) lit.
a) has occurred . It is only possible to conceive of a relevant fundamental
change in circumstances (art. 62) where a member state turns away from the shared values on which integration is to be based
- provided that those values have not been laid down in compulsory treaty
provisions, as laid down for the European Union by art. 6(1) TEU; if so, it
would be appropriate to apply art. 60(2)
lit. a Vienna Convention. Expulsion is to be reckoned with, then, if a
dictatorship is established in one of the member states of a free and
democratic supranational union.
32.
Expulsion
for material breach of treaty requires that the breach be significant, although not necessarily
extremely grave (“material breach”, not “fundamental breach”). A
material breach is given, in essence, where a member state fails to carry out
a duty of membership, or is grossly negligent in fulfilling it. This is the
case, for example, where a member state uses tactics tantamount to blackmail
to block the work of the union’s organs over a long period, or causes
significant damage to the union’s foreign affairs by illicit activities
which run counter to the union’s common foreign and defence policy, or where
a member state fails to implement, execute or enforce significant parts of
union law within its jurisdiction. As a penultimate step before expulsion, one
further measure, which goes beyond the treaty itself, should be considered:
the suspension of the treaty of union, which art. 60(2) lit. a Vienna
Convention permits under conditions identical to those outlined here for
expulsion.
[44]
33.
The persistent
refusal to implement or execute individual union acts of secondary law is
a special case. By refusing to take the necessary domestic measures even where
the court of justice of the union has held that it must do so, a member state
deliberately departs from the framework of the treaty of union and calls its
own readiness to fulfil its duties of membership seriously into question. Even
where a single directive or regulation is concerned, then, a breach of the
treaty will be sufficiently grave to fulfil the requirements of art. 60(2) of the Vienna Convention.
Since the judgment of the union’s court is binding on member states, a state
cannot justify its refusal to implement or execute union law by claiming that
a particular provision is unlawful. Apart from the refusal to implement or
carry out secondary union law, disregarding the judgment would have another,
equally serious consequence: contempt of
the Union’s jurisdiction. The uniform validity and application of union
law throughout the union is one of the fundamental pillars upon which the
existence and efficiency of the union as a supranational governing entity and
organisation of integration rests. Except for cases in which the limits of
what domestic constitutional law permits to be transferred to the union have
been exceeded, the duty to respect the union’s jurisdiction ceases only
where a decision is so obviously and so materially in error that it can only
be regarded as arbitrary. The duty to respect and abide by the union’s
jurisdiction is valid across the board for all of the organs of a member
state. If a domestic court - for example, a constitutional court - arrogates
to itself the competence to act as a final instance for questions of union
law, the other domestic organs will need to obviate the imminent danger of a
material breach of treaty by taking the necessary legislative steps to
neutralise the court’s usurpatory decision. In such a case, even a
constitutional amendment may be necessary. Aberrations or undesirable trends
in the jurisprudence of the union’s court should be corrected by amending
the treaty of union to clarify the issues in question, and, if necessary, by
including restrictive guidelines for future jurisprudence in that treaty.
[45]
34.
D.
A supranational union’s public power is no different from that
possessed by a traditional supranational organisation. It is a public power
which is exercised within a geo-regional jurisdiction that comprises the
territory of several states. It is a single power, exercised by a single
public authority under conditions which are identical everywhere in the union’s
territory. It follow, then, that it is an independent power, inhering in the
supranational authority and existing in addition to the public power exercised
by each member state. A supranational union’s public power is subject only
to those specific conditions for which its own legal order provides. It is not
a “supra-state” power in any hierarchical sense. In contrast to the public
power of a state, it is necessarily limited. Its existence, extent and basic
direction are not autonomous. It is, however, exercised autonomously in each
individual case. Even the member states can exercise control over the
supranational public power only in their function as “masters of the
treaties” ([“Herren
der Verträge”], which is to say collectively), by
the lengthy procedures necessary for treaty amendments. As a new, additional
power, the supranational union’s public power is not in any real sense “derived”.
Yet, since others have created it, it cannot properly be termed “original”,
either. - Other constructions are conceivable, but they would not fall within
the meaning of supranationality.
[46]
35.
Supranational public power evolves in a two-step
process. First, a supranational public authority is created. The founding
states act collectively, in their capacity as “masters of the treaties”.
No single state can create supranational public power, nor may it sustain or
extinguish such a power. The second step in the process falls within the
purview of domestic public law; its nature is such that each member state must
complete the step by itself. Under the authority of existing public
international law, in a global legal order which centres on the concept of
sovereignty, state sovereignty is the source of all public power. No public
power can exist, then, if it does not flow from a state’s act of will. If supranational public power is to
evolve, therefore, it requires not only the establishment of a supranational
public authority, but a national act
which directly and generally vest all its measures with binding force at the
domestic level [innerstaatliche Bindungsanordnung] in at least two member
states. This domestic legal act is part of national compliance with the
founding treaty. It is a formative legal act [rechtsgestaltender Akt], from
which putatively sovereign
supranational acts first acquire
the legal status of sovereign acts which are valid within the domestic
jurisdiction of an individual member state. The “order to apply
supranational law” [“Rechtsanwendungsbefehl”], to which reference is
frequently made, is really only a complementary measure intended to ensure
that the sovereign quality of supranational acts is respected in practice.
[47]
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[15]
2-A.I.
[16]
2-A.II.1.b.
[17]
2-A.II.1.a/c-e.
[18]
2-A.II.2/3.
[19]
2-B.I/II.
[20]
2-B.III/IV.1.
[21]
2-B.III.1.b.
[22]
2-B.III.1.
[23]
2-B.III.2.b.
[24]
2-B.IV.3.
[25]
This new form of organisation evolved on its own, rather than being
deliberately developed by European states: see 2-B.IV.2.
[26]
2-B.IV.4.a/b.
[27]
2-B.IV.4.c.
[28]
2-B.III.1.c.
[29]
2-B.III.2.c.
[30]
2-C.I.
[31]
2-C.II.
[32]
2-B.III.1.b.cc.
[33]
2-C.II.1; further 2-D.III.
[34]
2-C.II.2.
[35]
2-C.II.3.
[36]
Defined 1-A.I.3.d.
[37]
2-C.III.
[38]
2-C.IV.
[39]
2-C.V.
[40]
2-C.VI.1/2.a/3.a.
[41]
2-C.VI.2.b/3.b.
[42]
2-C.VI.2.b-c/3.b-c.
[43]
2-C.VI.2.c.aa-cc.
[44]
2-C.VI.3.c.aa/bb.
[45]
2-C.VI.3.c.cc.
[46]
2-D.
[47]
2-D.II.
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