01.03.01 |
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Translation:
Dr. Nicola Rowe, Hamburg
36.
A.
The concept of homogeneity is the key to understanding
how the supranational union, as an entity which is not a state yet resembles a
state, and which has wide-ranging tasks
but no actual instruments of power, can carry out its duties. The notion
of homogeneity denotes a material similarity between member entities and the
encompassing entity; there must be substantial coherence from the point of
view of the whole. Homogeneity has long been one of the central concepts on
which theories of federalism rest: it is necessary both in order to safeguard
the collective integrity of the federal unit by precluding and limiting
potential conflict and in order to ensure that a functioning vertical
separation of powers is possible in practice. These rationales also seem
necessary - if not, of course, to the same degree - in the context of those
federal units which are governed by public international law.
[48]
37.
There are two respects in which the notion of homogeneity requires
clarification. First, the homogeneity needed in a federal state or
supranational union is homogeneity within a union (federal homogeneity), not
the more stringent homogeneity of populace (national homogeneity [C. Schmitt]
or social homogeneity [Heller])
of the kind frequently mentioned as a prerequisite for democracy. The latter
form of homogeneity may become an issue for a democratic union, but this is is
a question, not for the form of organisation, but for democratic theory.
Secondly, homogeneity refers to resemblance, not to uniformity, to
relatedness, not identity of character, and to similar, but not to identical
conditions. Homogeneity is located on a continuum
between the heterogeneous and the uniform, and needs to be distinguished
from both extremes. A minimum, not a maximum requirement, homogeneity need not
be “optimised”, and the degree to which it must be present depends on a
variety of factors. It is precisely this relative
nature of the homogeneity requirement which guards against isolating or
absolutist tendencies being read into the homogeneity principle. Thus, for
example, states may be accepted into a supranational union even where an
otherwise insufficient degree of homogeneity is present provided that the
union’s member states can muster the political will and willingness to deal
with the concomitant difficulties.
[49]
38.
B.
Since the reasons for requiring homogeneity (and hence
also the requirements themselves) will vary, the question of homogeneity needs
to be investigated anew for every form of organisation. Four reasons why
homogeneity is essential and four criteria
for homogeneity can be postulated for the supranational union. In all
cases, there is a risk of destructive conflict if the requirements are not
met.
39.
First, homogeneity is a prerequisite
for the stability of the union as a single, integrated area where citizens
live and work together. The free flow of capital, goods and human beings must
not be allowed to cause a serious crisis in a member state such as a slump, a
monetary crisis, mass emigration or immigration or social tension. Homogeneity
of living conditions, which is to say homogeneity in terms of
civilisation, of economic conditions and of social conditions in all member
states, is therefore essential. The European Union’s enlargement to the east
might pose grave problems in this respect. To secure homogeneity, a
redistribution of funds from older to newer member states would need to
accompany this step.
[50]
40.
Secondly, homogeneity is a prerequisite
for the union’s ability to function as a multipolar political system.
[51]
If friction is to be minimised and the union and its member states are to be
able to act as a coherent whole, homogeneity of behavioural norms and patterns of public authorities
will need to be demonstrated. As with homogeneity of value systems (infra),
the issue here is one of legal and constitutional homogeneity. In this
context, however, more important than the letter of the law is the way in
which legal norms are implemented and dealt with in practice, which is to say
the general legal culture in the union and its member states.
41.
Thirdly, homogeneity is a
prerequisite for integration. If integration is to be successful, it will
need to rest on a solid foundation of common fundamental values and ideas, as
one of the purposes of the supranational union makes clear: being a larger and
more powerful entity than the nation-state, the supranational union is
intended to ensure that visions of the purpose and raison d’être of
political community to which nation-states gave effect are also realised under
the cirumstances of globalisation and geo-regionalisation. Naturally, this
will only be possible where those visions actually correspond. Controversies
regarding the general orientation of the union would otherwise be likely, too.
A community as close as the supranational union would be unlikely to survive
conflict of that kind.
42.
Homogeneity
of value systems
[Homogenität der Wertordnungen] is given where the philosophical and
political values and ideas which mould political systems in the member states
and the supranational union are in fundamental accord. In determining whether
sufficient homogeneity is in evidence, the first line of inquiry is not
directed at the institutions and principles of constitutional or primary law
formed by the domestic legal tradition, however. Rather, the focus is on the
underlying, more abstract, basic concepts of political theory. These basic
ideas need to be identical (or similar, at least), and they need to have been
put into practice to a comparable extent in every member state. The focus must
be on the values as lived in practice, not on the ideals as set down on paper;
this is the practice of the Council of Europe, which, notwithstanding a shared
commitment to human rights, does not rescind the membership of states which
are frequently guilty of serious violations of human rights. Thus, despite its
status as a member state of the Council of Europe, Turkey cannot be considered
for membership of the European Union while current conditions prevail.
[52]
43.
Fourthly homogeneity is a prerequisite
for a union’s individual charisma, and is thus a prerequisite for the
union’s ability to secure not only rational allegiance, but also emotional
loyalty. Citizens need to perceive the supranational union as “their”
place to live, as “their” home [Heimat]. Being part of the union must be a
part of citizens’ identity: they must identify with the union without
ceasing to identify with their own nation-state (multiple identification).
Each supranational union must, therefore, evolve specific characteristics
which make it seem interesting and attractive to its own citizens.
Philosophical and political fundamental values and ideals will not suffice for
that: since they are universal, they are realised elsewhere.What matters are,
instead, cultural factors (in the widest sense) - and thus a homogeneity
of cultures [Homogenität der Kulturen] within the supranational union.
44.
Homogeneity of cultures implies compatibility of cultures. There must be
a minimum fundamental correspondence which allows people who were raised in
one culture to cope - and feel at home - in an area moulded by another.
Moreover, a distinct cultural identity must be able to evolve for the union as
a whole, without being forced; it must appeal to citizens of every member
state. As a general rule, this degree of homogeneity will only be evident
within the same civilisation [Kulturkreis], and the membership of a state
which falls outside the civilisation in question will only be possible in
limited and exceptional cases.
[53]
45.
For the European Union, there is the question of the limits
of the enlargement to the east. Turkey has declared its interest in
membership. Yet, since Turkey belongs to the Islamic civilisation, any real
interpenetration of national societies of the kind that integration would
involve is bound to fail. The prospective membership of certain Eastern
European states is not without difficulty, either. The Christian tradition
which has exercised such influence on Europe has actually done so within two
distinct civilisations, the Latin and Orthodox traditions. Differences between
these two civilisations are still evident today, as the different development
of post-communist Eastern European states shows. Thus far, the European Union
- and its law - have been wholly anchored within Latin Christian civilisation,
and there is no evidence of any evolution towards a union which embraces both
European civilisations under the pan-European cultural umbrella, with all the
consequences that would involve. As the Greek example makes clear, the
European Union will remain within the Latin tradition - in other words, within
the Western European tradition. If it expands to the east, its enlargement
will be purely geographic, requiring member states rooted in the Orthodox
Christian civilisation to adapt unilaterally to Western European values and
practices, particularly in respect of western legal and administrative
culture.
[54]
46.
C.
Homogeneity
is secured
first and foremost by an enlargement policy which centres on the concept of
homogeneity; there are, moreover, various instruments which might be
incorporated in the treaty of union. Thus, for example, homogeneity of living
conditions can be protected if the union’s organs and member states are
required to respect the needs of homogeneity in the policies they follow (cf.
the European Community’s cross-section policy under art. 159 sub-sect. 1
phrase 2 EC Treaty). As a more potent instrument, the treaty of union can
prescribe a policy for the active protection of homogeneity (cf. art. 158
sub-sect.1 EC Treaty, whose goals, it should be noted, go beyond the minimum
necessary to secure homogeneity) and provide for the necessary fiscal supply
(cf. art. 159 sub-sect. 1 phrase 3 EC Treaty). A system of abstract,
horizontal fiscal equalisation of
the kind that is common in federal states is out of the question at the
beginning of the process of integration, but, to a lesser extent, becomes
relevant in the final years before the transition to a federal state. Finally,
a financial or economic crisis in individual member states may make emergency measures of assistance on the part of the union
appropriate in order to avert imminent disastrous ill-effects on social or
economic homogeneity. Measures of this kind impose a considerable burden on
other member states; that should be taken into account when new applications
for membership are considered.
[55]
47.
Anchoring common fundamental values and ideas in a homogeneity clause in the treaty of union is the most important step
that can be taken to secure homogeneity of value systems. A hard legal norm
must be placed in a prominent place in the chapter of the treaty which deals
with the union’s
foundations. A proclamation in the preamble would be inappropriate.
The European supranational union’s member states did not take the necessary
steps until the Treaty of Amsterdam (sc. art. 6(1) TEU; for earlier measures
whose ambit was restricted to democracy as a basic value, see art. F(1)
TEU). To do justice to the plurality of legal orders which arise from the dual
existence of member states and the union, only the basic concepts, as
presented by political theory, should be incorporated into the treaty: it
would be inappropriate to stipulate how they should be put into practice. A
reference to basic legal principles, as designed in the same legal system, of
the kind found in homogeneity clauses in the constitutions of federal states
(e.g. art. 28(1) phrase 1 of the German Basic Law: “within the meaning of
this Basic Law”) may not, therefore, be included. - Further steps towards
homogeneity would be a thorough implementation of common fundamental values
and ideas in union law and sanctions
against member states for serious violations, as arts. 7 TEU, 309 EC Treaty,
204 EURATOM Treaty, 96 ECSC Treaty now make possible for the European Union.
The expulsion of a member state remains as a measure of last resort.
[56]
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[48]
3-A.I.
[49]
3-A.II/III.
[50]
3-B.I.
[51]
3-B.II.
[52]
3-B.III.
[53]
3-B.IV.1/2.
[54] 3-B.IV.3.b.
[55]
3-C.I/II.1.
[56]
3-C.II.2.
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