Reshaping the European Union (eBook)

Cover 1
Introduction 20
I. History of the European Union 29
1. Origins of the European Community 30
1.1 Ideas on a United Europe 30
1.2 National Interests 33
1.3 Influence of the USA 36
1.4 Cold War 37
2. Foundation of the European Community 37
2.1 European Coal and Steel Community Treaty 39
2.2 European Defence Community 41
2.3 Evolution of the European Economic Community Treaty 41
2.4 European Economic Community Treaty 44
3. Development after the European Economic CommunityTreaty 45
3.1 European Economic Community and De Gaulle 46
3.2 Two Important Decisions of the European Court of Justice 48
3.3 Deepening and Enlargement of the European Community 49
4. The Dynamic of the 1980 s 51
5. Euro and Eurozone Crisis 53
6. Political Events after 1985 58
7. Further Development of the European Union 60
8. Comment 62
9. Conclusion 65
II. Basic Issues 67
1. The Constitutive Treaties 68
2. Verfasstheit of the European Union 69
2.1 Arguments pro Constitution 70
2.2 Arguments contra Constitution 73
2.3 Discussion 75
3. The European Union as International Organization 76
4. Supranationality of the European Union 77
5. Three Intriguing Theories 79
5.1 Intergovernmentalism 80
5.2 Supranationalism 80
5.3 Constructivism 81
5.4 Comment 82
6. Sovereignty 82
7. Constitutional Pluralism 85
7.1 Discussion 87
8. Legitimacy 88
9. Accountability 92
10. Purposes and Goals 92
11. Conclusion 95
III. Structure and Functioning of the European Union 98
1. General Remarks on European Union Institutions 99
2. European Commission 100
2.1 Tasks of the Commission 101
2.2 Composition of the Commission 102
2.3 Structure of and Voting within the Commission 104
2.4 Network between European Union and Member States 105
2.5 Agencies 106
2.6 State of the Union Address 108
2.7 Comment 109
3. European Council 110
3.1 Shared Executive Power 112
3.2 President of the European Council 112
3.3 General Affairs Council 113
3.4 Comment 114
4. Council 114
4.1 Composition of the Council 115
4.2 Decision-making in the Council 115
4.3 Council Configurations 116
4.4 Presidency of the Council 117
4.5 Assisting Committees 117
4.6 Intergovernmental Conference 119
4.7 Foreign Affairs and Security Policy 119
4.8 Comment 120
5. European Parliament 120
5.1 Composition of the European Parliament 121
5.2 Political Groups in the European Parliament 122
5.3 Parliamentary Organs 123
5.4 Decision-making in the European Parliament 125
5.4.1 Legislative Functions 125
5.4.2 Budgetary Functions 126
5.4.3 Supervisory Functions 126
5.4.4 Elective Functions 126
5.5 Comment 127
6. European Court of Justice 127
7. European Central Bank 128
7.1 Comment 130
8. Court of Auditors 132
9. Order of Competences 133
9.1 Union Competences 133
9.2 Principle of Conferral 134
9.3 Subsidiarity and Proportionality 135
9.4 Enhanced Cooperation 135
9.5 Comment 136
10. Summary 137
11. Conclusion 139
IV. The European Court of Justice – a Controversial Institution? 141
1. Jurisprudence of the European Court of Justice 142
1.1 Basic Considerations 142
1.2 Legal Order of the European Union 143
1.3 Direct Effect 145
1.4 Regulations 147
1.5 Directives 147
1.6 Supremacy of the Union law 149
1.7 Preliminary References 155
2. Debate on the Jurisprudence of the European Court of Justice 156
2.1 Supportive Opinions 156
2.2 Opinions of the Critics 160
3. Other Recent Opinions of Legal Scholars 162
4. Political Question Doctrine 170
4.1 Political Question Doctrine in the USA 170
4.2 Political Question Doctrine in the European Union 172
5. Discussion 174
6. Recommendations 179
7. Conclusion 180
V. Eurosystem and Eurozone Crisis 182
1. Basic Issues 183
1.1 Currency Unions 183
1.2 Exchange Rate Regimens 184
1.3 The Burden of Public Debt 185
1.4 Lessons from Previous Financial Crises 188
1.5 Sovereign versus Corporate Bankruptcy 191
1.6 Peculiarities of the Bank System 191
2. Creation of the Eurosystem 193
3. The Beginning of the Great Recession 198
4. The Eurozone Crisis 201
4.1 Competitive Weakness in the Eurozone 202
4.2 Remedies in Ireland and the Baltic States 204
4.3 Competition from Middle-East and Eastern Europe 205
4.4 Interest Rates 205
4.5 Fiscal Problems in the Eurozone 206
4.6 Private Wealth within the Eurozone 208
4.7 The Eurosystem in the Crisis 208
4.8 The Effect of Moral Hazard 213
5. Target Balances 214
6. Handling the Current Account Deficit 216
7. Rescue Programmes 217
8. Structural Reforms and Austerity 220
8.1 Critique on the Troika 222
9. The Banking Union 224
10. The Challenge of Fiscal Union 231
10.1 Fiscal Federalism 232
10.1.1 Fiscal Federalism in the USA 232
10.1.2 Fiscal Federalism in Switzerland 234
10.2 Disregard of the Maastricht Criteria 234
10.3 Does the Eurozone Need a Fiscal Union? 235
10.4 Fiscal Recommendations 238
11. Previous Suggestions for Reshaping the Eurosystem 238
11.1 Transfer Union, Debt Mutualisation, and Similar Proposals 239
11.2 Self-responsibility of Every Eurozone Country 242
11.3 Reconciliation of Both Standpoints 246
12. The Challenge of Debt 248
13. An Insolvency Procedure 250
14. Exit from the Eurozone 250
15. Fate of the Future Eurozone 254
15.1 Dissolution of the Eurozone 254
15.2 Price Adjustment in the Eurozone 255
15.3 Eurobonds and Transfer Union 257
16. Own Reform Proposals 257
17. Conclusion 261
VI. Defects of the Existing European Union 263
1. The Ambiguity of the Ever-Closer-Union Clause 263
2. Challenge of Diversity of the Member States 264
2.1 Inequality of Size and Population 265
2.2 Diversity of Background 266
2.3 Cultural and Religious Diversity 267
2.4 Small versus Large Member States 272
2.5 The Challenge of the Equality Claim 273
2.6 Comment 275
3. Defects of Democracy 276
Democracy has been a fundamental principle of the Western nation state. In some Western nation states, democracy has been having a long tradition. In other nation states, democracy has been introduced only recently as will be discussed in chapter VII. The EU is not a state. The question may therefore be justified whether the EU is a democratic polity or whether it is at least on the way of becoming a democratic polity. Democracy is mentioned in the preamble of the Lisbon Treaty and Articles 9 to 12 TEU delineate the “Provisions on democratic principles”. Do these provisions establish the democracy in the EU? This subchapter will be concerned with this question. 276
3.1 Equality and Citizenship 276
3.2 Defects of Representative Democracy 277
3.3 Democratic Deficit of the European Union 278
3.4 Defects of Parliamentary Representation 280
4. Defects of Popular Sovereignty 283
The lack of a demos of the EU corresponds to the lack of popular sovereignty. The latter is of fundamental importance in a modern democracy. The demos should be the sovereign in a polity of the Western civilization. Since the EU does not have a demos, it cannot rest on popular sovereignty. In this context, it is interesting that Jean Monnet was keen enough to deny the people the experience for creating the European Community (see Monnet 1978: 465). This attitude of a European “Saint” was not supportive for the eventual idea of popular sovereignty in the EU. Instead, the promotion of European integration has largely been a project of elites. The importance of the public in the process of shaping the EU is discussed in chapter IX. 283
5. Defects of the Separation of Powers 284
5.1 Defects of the Horizontal Separation of Powers 285
5.2 Defects of the Vertical Separation of Powers 287
6. Deficient Jurisprudence of the European Court of Justice 289
Important defects of the judiciary of the EU have been described in chapter IV and in the previous section and shall not be repeated here. Moreover, Antoine Vauchez added a couple of additional examples which demonstrated the overextension of the mandate of the ECJ (see Vauchez 2016: 1-5 and 28-29). 289
7. Defects of the Law-making Process in the European Union 289
Presently, the European Commission has the monopoly concerning the initiative of the law- making although the Commission is not an accountable institution. This is an unsatisfactory condition. Rather, democratically legitimized and accountable institutions like the national parliaments and governments and the partially democratically legitimized European Parliament should primarily receive the right to initiate law proposals. This also refers to the Council. The author suggests that the Commission can be included in this initiation process, mainly as an administration with considerable expertise. 289
8. Deficient Activities of the European Central Bank System 290
In the EU, there are presently 19 member states whose currency is the euro and ten member states having their own currency. This dichotomy is presumably not advantageous for the EU for at least two reasons. First, the monetary capacity of the Eurosystem is reduced because a couple of EU member states are not members of the Eurozone. Secondly, the fact that nine (eight) member states do not participate in the Eurosystem presumably means that they mistrust the Eurosystem. 290
9. Lack of Duties 291
In chapter II, it has been pointed out that the Lisbon Treaty lists a considerable amount of rights of the citizens of the EU but not a single obligation or duty of the citizens. The question may be allowed whether a polity can survive in the long run if the citizens of this polity have many rights, but no duties specified in the EU Treaties. 291
10. A Misarranged State of the Union Address 291
The State of the Union Address delivered by the President of the Commission was arranged between the Commission and the European Parliament in 2010. The basis for this arrangement was a framework agreement between both EU institutions mentioned. This arrangement was not foreseen in the Lisbon Treaty or in any other EU Treaty. Chapter III outlines that the State of the Union Address was an imitation of the State of the Union Congress Information by the US President according to Article 2 (3) of the US Constitution. In chapter III, it is also pointed out that the US President and the US Congress are democratically legitimized institutions. By contrast, the Commission is not democratically accountable and the European Parliament is only a partly legitimized institution. Moreover, the Commission tries to underline its “executive” power. The endeavours of the Commission and the European Parliament to establish a State of the Union Address by the back door is violating the democratic legitimacy of the EU. The State of the Union Address in the present form can therefore not be tolerated any longer. A suggestion is being made in Chapter X how a State of the Union Address could be arranged in the future. 291
11. Conclusion 292
The European enthusiasts have presumably not foreseen the numerous problems which can arise with a united Europe. Yet, most if not all member states of the EU possess provisions for a united Europe in their Constitutions. But the framers of these provisions presumably did not seem to take into consideration that the united EU which they envisaged would be associated with the defects described in this chapter. 292
VII. European Nation State versus European Union 294
1. Historical Aspects 295
1.1 The View of the Comparative Historians 295
1.2 Features of the State in the Light of History 297
1.3 History of the European Nation State 299
2. Political Order and the State 301
2.1 Good and Bad Political Order 301
2.2 Nature of the State 302
2.3 Staatlichkeit within the European Union 303
3. Democracy 305
3.1 Democracy in the Greek Polis 305
3.2 Democracy and the Modern State 306
3.3 Types of Democracy 307
3.4 Preconditions of Democracy 311
3.5 Democratic Legitimacy 313
3.6 Limits of Democracy 314
3.7 Advantage of the Democratic State 315
3.8 Democracy of the EU Member States 315
3.9 European Union versus State Democracy 315
4. Parliamentarianism 317
4.1 The National Parliament 317
4.2 National Parliaments in the European Union 318
4.3 European Parliament 319
4.4 Comment 320
5. Popular Sovereignty 320
5.1 Popular Sovereignty in the Nation State 321
5.2 Popular Sovereignty in the European Union 322
5.3 Popular Sovereignty and National Constitutions 322
5.4 Comment 323
6. Separation of Powers 324
6.1 Separation of Powers in the State 325
6.2 Separation of Powers in the European Union 326
6.3 Comment 326
7. Rule of Law 327
7.1 European Rule of Law Tradition 327
7.2 Rule of Law and the Classics 328
7.3 Principles of the Rule of Law 329
7.4 Comment 334
7.5 Rule of Law in the European Union 335
8. Conclusion 336
VIII. Models for a Future European Union 338
1. A Short History of Federations 340
1.1 The Polis and its Federations 340
1.2 Empires 341
1.3 The Nation State 343
2. The Present Status of the European Union 343
3. Reforms and Models of the Future European Union 348
4. Empire and Neo-medievalism 355
IX. The People and the Making of the European Union Treaties 360
1. Public Participation and Popular Sovereignty in the European Union 362
As chapter I indicates, the main origins of the EU were idealistic ideas, interests of the nation states, and the American influence. Taking these origins into consideration, this subchapter deals with the question whether there was sufficient room left for the participation of the people and popular sovereignty during the foundation of the EU. 362
1.1 Public Participation 362
1.2 Popular Sovereignty 364
2. Public Participation and Popular Sovereignty in the USA 365
2.1 Public Participation 365
2.2 Popular Sovereignty 369
3. Discussion 371
3.1 Appropriate Public Participation 371
3.2 Differences between Europe and USA 374
3.3 Similarity of Procedures in Different Polities 375
3.4 Popular Sovereignty 376
3.5 Are the People Dangerous? 377
3.6 Consequences 379
4. Recommendations 380
In this subchapter, recommendations concerning the public participation in the future EU are being made. (1) The people of all EU member states should be given the possibility to discuss a future EU Treaty of the Lisbon-Treaty-type whenever such a treaty is proposed by national parliamentarians, national governments, EU institutions, or individuals. (2) In every EU member state, capable and renowned persons should be elected to become representatives of special national conventions the special national convention of a given EU member state only has one task, namely to provide advice to the government of its EU member state for the negotiations establishing a forthcoming future EU Treaty. (3) Each of the 28 (27) special national conventions should discuss and agree on a draft proposal and should elect one or a few expert delegate(s) for a Convention Committee. (4) Each Convention Committee should submit the draft proposal to the government of its member state. (5) The national parliaments also form a Parliamentary Committee with one or a few parliamentarians who design a draft proposal for the government. (6) Preferably, both Committees mentioned coordinate their proposals, possibly even together with representatives of the government. (7) The government representatives, possibly joined by representatives of both Committees mentioned, enter into negotiations with the governments of the other EU member states in an intergovernmental conference. (8) After approval of the future EU Treaty by the governments of the EU member states, the national parliaments need to ratify the future EU Treaty. (9) A referendum may be necessary according to the constitution of some EU member states.
5. Conclusion 381
X. Proposals for a Reshaped European Union 383
1. Previous Suggestions for a Future European Union 384
1.1 Ideas and Models for a United Europe 384
1.2 Nation State and Governance 387
1.3 Deviations from the Treaties and Agreements 390
1.4 Democratic Legitimacy and Accountability 392
1.5 Promises and Shaken Expectations 395
1.6 Challenges 397
2. General Considerations 401
3. Purposes of the Future European Union 404
4. Supranationality and Limited Supranationality 406
4.1 Supranationality 406
4.2 Limited Supranationality 408
5. The European Union as Unique Polity 410
6. Reign, Structure, and Functioning of the Future European Union 410
6.1 The Future European Council 411
6.2 The Future Council 412
6.3 The Future Chamber of National Parliamentarians 412
6.4 The Future European Parliament 412
6.5 The Future European Commission 412
6.6 The Future European Court of Justice 413
6.7 The Future European Central Bank 414
7. The Future Treaty-making 415
8. Law-making in the Future European Union 416
9. Uniformity of Law and Principles 418
9.1 Differentiation of Law 419
9.2 Uniformity of Principles and Values 419
10. Equality of the Member States 420
11. Sound Finances 421
12. Future Defence Policy 424
13. Future Foreign and Security Policy 425
14. Implications of the Brexit 426
15. The Challenge of Immigration 429
16. Admission of New Members 432
17. Future State of the Union Address 433
18. Conclusion 434
References 437
Name Index 458
Subject Index 462