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Sovereignty Lying In Between? The Case of the European Community and the Member States
i. Two Important Notions The creation of the first supranational organizations in the middle of the 20th century and the influence these organizations had on member states were seen to constitute an “emergence of the new legal order” (1), which is especially true in the case of the European Community. Professor Peter Hay, the author of the first monograph on supranationalism, considered “integration in Europe today [to be] the most advanced form of the greatest achievements in integration” (2) although his book appeared in 1966 – less than two decades after the start of the integration process in Europe – it reflects the actual state of things, as it is still difficult to think of any other supranational organization which has been such a success. Less than half a century ago, for the first time in history, the difference between “international” and “supranational” became clearly visible. It is thus possible to say that “supranationalism” is a relatively new notion, and although many scholars participated in its clarification, and even agreed that “the term is typically used to identify a particular type of international organization that is empowered to exercise directly some of the powers otherwise reserved to states” (3), the meaning of it is still said to be mostly “the matter of approach and interpretation” (4), which is somewhat vague. Sovereignty, on the contrary, is considered to have been well formulated centuries ago, which even makes some scholars apologize to the readers for the choice of such a “boring” topic. However, the birth of supranationalism, unknown in its present form just half a century ago, completely changed the understanding of sovereignty of the contemporary State, making it impossible to rely on old definitions. ii. The Time of Changes The supranational influence of the EC on the Member States’ sovereignty is drastic; at the same time, the importance of this change in the understanding of sovereignty is often underestimated. After a closer analysis it is possible to admit that State sovereignty is not clearly defined and that supranationality is not something purely theoretical, but a concrete reality, which constantly influences the European States, the scope of their powers, and their sovereign competence. Aziz wrote “the implications for State sovereignty are considerable, particularly given the increasing growth of substantive EC subject matters which have traditionally resided within the exclusive competence of the Member States but the responsibility for which has been pooled through Europeanisation” (5). In the beginning of the seventies prominent philosopher and political scientist Donald Puchala “likened the conceptualization of the [united Europe] to the story of the blind men and the elephant: they all touched the animal and gave completely different descriptions to it” (6) – no one really knew what Europe would look like. The same applies to the States of the pre-integration era. They were blinded by their own interests. During the first part of the 20th century Europe was dominated by the ideology of Etatnationalisme, juxtaposition of “sovereign” States, which resulted in wars and harm for all (7). However the integration process proceeded quickly and resulted in the construction of a powerful organization, the competence of which spans from the regulation of atomic energy to common market. The elephant started to take shape. iii. Predicted Change? However, not all were blind. Shortly after the signing of the Treaties, establishing the European Communities, Jean Monnet, one of the founding fathers of European integration predicted how deep the changes in the legal systems of the Member States would be. He did not like the provisions concerning sovereignty in the project of the French constitution of 1958, because he knew that the “classical” understanding of this term had to come to an end. And history showed that he was right, as the Constitution, adopted without the changes proposed by Monnet, had first to be interpreted to include the text of the preamble of the Constitution of 1946 and than to be changed, being an insufficient legal instrument for furthering European integration (8). However, few could accurately predict the consequences of starting integration in Europe. The amendment of the French constitution, as well as of constitutions of almost all the other Member States reflects the constant evolution of the Community. The EC is in the constant process of change: “for nearly two decades the Union has been either preparing, negotiating or ratifying a new Treaty” (9). It is also possible to say that the “EC legal system was constructed without the explicit consent of the Member States” (10), as the European Court of Justice played a very important role in the creation of it through the elaboration of the doctrines of supremacy of the Community law, direct effect, etc. Finally, mainly because of integration on the supranational plane, as well as because of the ECJ’s activism, the understanding of sovereignty of the Member States of the EC has changed irreversibly. “In effect Member States no longer have absolute sovereignty […] in the sense envisaged by the Treaty of Westphalia” (11). iv. ECJ Treating the Question of Sovereignty Transfers According to Helfer “the distinguishing feature between supranational and international organizations is the greater transfer of sovereignty involved in the establishment of a supranational organization” (12). In the case of the EC, the essence of such a transfer was not clear from the text of the Treaties, but the ECJ articulated the question of sovereignty limitation and transfer of sovereign rights in its case law, starting from Costa. According to the classical understanding of sovereignty only States can possess sovereign rights and thus if a supranational organization is to regulate some spheres of economics, politics or defense, the right to perform this regulation should be taken from the Member States, as there it resides. The ECJ approach to this question is delicate. The court characterized European Institutions as being endowed with “sovereign rights” (13) and stated that the Member States had “limited their sovereign rights”(14). It “has not sought to mount a frontal attack against the doctrinal consensus, existing on the national constitutional level”(15). In the beginning of the 1960s the main task of the court, concerning the sovereignty question was to equate two main doctrines pertaining to the constitutional law of the Member States: the doctrine of limitation of sovereignty and of transfer of powers. v. ECJ and Member States’ Sovereignty Doctrines The Court was not interested – or was reluctant to talk about the transfer of sovereignty from the Member States, although even such strong language can be found in its decisions. For example in Euratom Ruling 1/78, the Court held that
In this ruling the ECJ seems to go further than just stating that the Member States transferred some of their powers to the Community, by implying that the Member States had transferred to it part of their sovereignty. The legal regulation of sovereignty issues lies within the constitutional law of the Member States. Shortly after WW2 two main approaches to the possibility of delegation of sovereignty appeared in the doctrines of the present Member States of the Community: the limitation of sovereignty and the delegation of sovereign rights, as the principle of absolute and indivisible sovereignty had to be accommodated to the needs of international cooperation. Both the approaches served this purpose. vi. ‘Limitation’ of Sovereignty The doctrine of “limitation of sovereignty” appeared first in France. Paragraph 15 of the French Constitution of the 4th Republic states that “subject to reciprocity, France consents to limitations of sovereignty necessary for the realization and defense of peace”. The second example of this “passive” approach to empowering supranational organizations is article 11 of the Italian Constitution, which declares that “Italy may consent, on equal terms with other States, to limitations of sovereignty necessary to establish an order and ensuring peace and justice among nations, and it will favour international organizations which have that aim”. But the possible limitations of sovereignty are not at all absolute. So the Italian Corte Constituzionale, talking about restrictions on Italian sovereignty, found that the Constitution of the Country provides for ‘counter-restrictions,’ which are fundamental principles of the Italian Constitution and individual’s inviolable rights. The Italian “restrictions on restrictions” of sovereignty can be compared to the German Federal Constitutional Court’s position, which contains basically the same reservations against the acceptance of the European Law, based on the doctrine of sovereignty. It is interesting to mention, that article 11 has been adopted by the Italian Constituent with no direct intent to facilitate the accession to the European Communities. Rather, it had in view the United Nations, as well as German “integration article” (art. 23) which was initially introduced into the Basic Law in order to comply with NATO membership requirements. Only later were these provisions used to further European integration. vi.a. Dédoublement Fonctionnel – or How a Limited Sovereignty Can Be Absolute Member States use the notion of sovereignty to safeguard some of their interests opposed to those of the Community, turning sovereignty into a powerful weapon targeted against European integration (17). The theory of limitation of sovereignty is a fruitful field for theoretical research both in France and Italy. It is interesting that even if they give completely different interpretations to the essence of such a limitation, most of the scholars hold that it does not influence the core of the notion of sovereignty: its indivisible and absolute character. The common position is that if it were possible “to admit that sovereignty is not absolute [it would mean] to agree to the idea that the State does not fully control what is going on its territory and that this control is given to an international organization or to another State”(18). Whereas to admit that it is divisible means to admit that it is not absolute. The way out of this maze may be seen in the theory of dédoublement fonctionnel (19) or a “basket approach to sovereignty,” attributing to sovereignty the meaning of a flexible complex of rights and immunities that belong to the state. At the same time it is necessary to take into account that this approach is not purely theoretical, as it can clearly reflect a historical perspective. He illustrates the proposition with the following example: “a century ago sovereignty implied that a State could go to war whenever it pleased. [Later] States renounced such a prerogative”(20). vi.b. EC Law – Precedence with Reservations? (The Example of France) The aforementioned theory inspired the French Conseil Constitutionnel to create a doctrine, which would allow France to “limit its limitation” of sovereignty in quite a different way, as compared to Germany or Italy. If sovereignty is understood as a “bundle of rights and immunities,” the first question is how many of them should be transferred to lose sovereignty? It appears almost impossible to determine the whole set of sovereign rights of the State, but the task of the Conseil Constitutionnel was not to define all the sovereign rights. The Conseil articulated the theory of “essential conditions for the exercise of national sovereignty.” It began with articulating the difference between “limitations” and “transfers” of sovereignty. It found that the limitation of sovereignty was possible, while “any transfer in any form to whatever organization or state was not authorized.” (21) At the same time it stated that the limitation of sovereignty had the same effect as a transfer of sovereign powers, thus eliminating the difference between the French and the German approaches to empowering supranational organizations. Thus it was found that the respect of national sovereignty is not an obstacle for transfers of sovereign competence of State. As a result, the delegation of sovereign powers to supranational organizations is sometimes compared to the delegation of powers to the local self-government (22). It is also important to understand the difference between the delegation of powers to another state and to an international organization formed by many states, since even within such an organization, the states still continue to exercise their sovereign powers, but do it jointly, as “the action by the EC somehow appears as another mode for the Member States to assume their own sovereignty, not any longer through autonomous, but through common decisionmaking” (23). This idea can also be found in Article 88-1 of the French Constitution: “States chose to jointly exercise certain of their powers.” Scholars even talk about the “Community of national sovereignties”(24). Nothing has changed in a basic rule that sovereignty continues to reside in the people and may therefore not be alienated. However, based on the doctrine of the conditions essentielles d’exercise de la souveraineté national, it is possible to question any step towards the integration. Although the Conseil Constitutionnel does not seem to be willing to use its doctrine against integration, the concept of ‘essential conditions of exercise of national sovereignty,’ due to the vagueness noticed by many scholars, can serve as a powerful weapon of the French State in its fight for “sovereignty”(25). As professor Bruno de Witte pointed out, “any future expansion of Community powers or of the supranational character of its decision-making process (say, by a shift to majority voting in the EC Council in some ‘sensitive’ field) will most probably be submitted to the Conseil Constitutionnel in order to check whether the essential conditions of the exercise of sovereignty have been affected” (26). It is already possible to illustrate these fears by the Conseil decision of 31 December 1997 concerning the Treaty of Amsterdam. According to the Conseil, the transfer of powers is constitutional only if the sovereign rights are given to an organization where France will be able to influence directly the decision making. This decision can easily be interpreted as prohibiting any delegation of sovereign powers to the organization, where the decision-making scheme is not unanimity. vii. Delegation of Sovereign Rights Rights The second doctrine – “the delegation of sovereign rights” appeared in Germany in 1949. Article 24 (1) of the Basic Law states that “The Federation may by legislation transfer sovereign powers to intergovernmental institutions”. The goal of this provision was the same as in the case of article 11 of Italian constitution or paragraph 15 of the preamble of the French Constitution of 1946, but Germany chose an “active,” rather than “passive” approach. Greece was the only Member State, to include both approaches into its Constitution (Art. 28). viii. ECJ: the Doctrinal Difference Resolved To summarize, the operation of a supranational organization is impossible without conferring a certain quantity of sovereign powers to it on the part of the Member States. The Member States of the EC, however, chose two different types of constitutional regulation of such powers transfer. It was up to the ECJ to eliminate the evident semantic difference between the two approaches. Otherwise, further integration within the Community would have been endangered by the difference in understanding the nature of its powers by the Member States. The ECJ found that in the case of the EC the limitation of Member States sovereignty was accompanied by the transfer of powers to the Community. In Costa it stated that
What is interesting to underline is that, later on, the limited areas of transferred sovereignty were extended to “ever wider fields” (28). ix. Is It Possible To Talk about Sovereignty of the EC? It is not enough to limit sovereignty or delegate sovereign rights to make sovereign powers appear at the Community level. This proposition makes some scholars ask a rhetorical question “Was there any delegation?” Most of the authors, considering the Community to be a “sovereignty association of a special nature,” disagree with the proposition that the EC is sovereign. To explain it, we should look at the changing essence of supranationality. The difference between two understandings of the purpose of supranationality is clearly seen: (29) nowadays the notion of supranationality has acquired the function to distinguish the organization from States, “especially in the light of the missing coercive powers and its polycentric structure,” (30) while in early days supranationality was seen as a step before statehood. Weiler also makes a difference between “unity vision” and “Community vision.” “The supranational Community project is far more ambitious than the unity one and far more radical” (31), as it should completely change the old “boundaries”: according to Weiler the former clear-cut boundary between the States should transform into a zone of “uneasy existence, although with an ever increasing embrace” (32), the sovereign character of the Member States thus will not be eliminated. So if it is assumed that only States can be sovereign and the EC is not a step to statehood, it becomes easy to deny any possibility of emergence of sovereignty comparable to that of the Member States on the Community level. In addition to that one should not forget that the ECJ was also explicit concerning the question of the sovereignty of the Community. The Court stated that the EC cannot accede to the European Convention of Human Rights, as it depends completely on the Member States and the powers conferred to it by the Treaty (33) and thus does not possess sovereignty in a classical meaning of the term. Having the ECJ Opinion 2/94 in view, it is possible to compare the character of sovereignty of the EC and of the Member States with that, highlighted by the American concept of sovereignty within the framework of jurisdiction. This theory is formulated in the Federalist papers No. 45 and No.32. It can be interpreted in the following way: “Member States have the nature of [American] States, each of them being sovereign within their framework of jurisdiction” (34). In my opinion such a comparison is legitimate. Trying to convince the people of the State of New York that the States were not going to lose their sovereignty, the Federalist state that “the powers delegated […] to the federal government [are] few and defined.” But how much power will be delegated to the Community, the question arises. If statehood is not the objective of integration, what will supranationality bring? Many discuss the progress of Europe, avoiding at the same time to answer the question where should the integration stop. Is there an end of integration? Some scholars tend to call the situation “a model case without a model” (35), referring to the “bicycle theory of integration” (36) – if you do not move forward – you fall. The final objective is thus unknown – you move for the sake of moving. The Declaration on the Future of the Union states that the Nice Conference “[…] calls for a deeper and wider debate about the future of the European Union and […] will encourage wide-ranging discussions with all interested parties […]” (37). x. ‘Completely New Powers’ Appearing at the Community Level Some scholars believe that completely new powers appeared on the Community level. (38) Right after the creation of the Communities two different points of view at the nature of the new powers were formulated. x.a. Theory of “Parallel Powers” The first point of view states that the new powers of the Community are completely parallel to the state powers and the Member States have power, but not the right, due to the treaty obligation to exercise the same power on their own. This point is based on a proposition that Member States’ sovereignty consists not only in reserving for the State a possibility to interfere, but also a possibility not to interfere and also in the decision not to adopt any acts. Both the doctrines of limitation of sovereignty and transfer of sovereign rights confirm the importance of the theory of “parallel powers,” as all the Member States claim that they did not lose any part of their sovereignty because of European integration, although it is widely accepted that the “European integration en gros questions sovereignty of the Member States to some extent” (39). x.b. Theory of “New Powers” The second approach states that the new power is not at all parallel to that of the Member States. Wohlfarth suggests that the power of the Communities to regulate the status of a national of a State A in the territory of a State B transcends in quality the sum of powers which States A and B could delegate to the Community for the exercise of exclusive or concurrent jurisdiction. The Community’s jurisdiction therefore, in this case, represents a new type of power. From this it can be concluded that the transfer of powers is irrevocable and that A and B created a new legal system (40). This approach mostly represents the position taken by the ECJ in explaining the nature of the European integration. The ECJ case law starting from van Gend en Loos and Costa explicitly shows the creation of a new legal order, superior to those of the Member States. xi. Conclusion What is unique and perhaps promising, too, about the European Community is the fact that it introduced supranationalism as a new mode of political association and a new legal scheme for cooperation. We are now witnessing a gradual change in understanding of the meaning of sovereignty of a state as well as the necessity to rethink all the basics of the legal and political theory in order to create a frame, suitable for the emerging picture of the new united Europe. The European Community is so unique and unprecedented in nature that it is impossible to rely on old notions in order to understand it. It is not a simple repetition of a State on a supranational level – Weiler is right: it does not need to become a State in old understanding. The unity vision of integration is being replaced by community vision, which presupposes that all the drawbacks of State as such will never appear on the supranational plane. This essential difference between the Community and the Member States makes it impossible to talk about Community sovereignty or Community legitimacy without shifting the understanding of these notions to the level of the Community from that of the Member States. Acquiring more and more powers, the Community is still too dependant on the Member States in order to be called sovereign. However the same observation applies to the Member States as well – they are losing sovereignty in Westphalian understanding of the term. By now they have already lost a significant number of sovereign competences. The integration process thus caused a deep transformation in the understanding of State sovereignty, which is of course not affected by the desire of some scholars to present sovereignty as something unaffected by the integration process. Because of the theories of limitation of sovereignty and delegation of sovereign rights, a doctrinal dichotomy was created both by the ECJ and by the constitutional scholars of the Member States. On the one hand the Community was said to get sovereign rights from the Member States to regulate certain spheres of life, while the Member States did not lose any part of their indivisible sovereignty because of that delegation. On the other hand, the Community has real powers within the spheres assigned to its jurisdiction by the Member States, while for the States it is impossible both to interfere into the Community subject matters and take their sovereign powers back from the Community. As a result of such “joint exercise of sovereignty,” sovereignty only “rests WITH the Member States, [there is no sovereignty] OF the Member States” (41) any more. To summarize the transformation, it is possible to say that sovereignty is no more an unlimited power, but a collection of sovereign rights, some of which can be delegated to a supranational organization, or left with the State. European supranationalism broke the rigid dichotomy of national and international law, while forming a new, Community legal order – neither national nor international in nature. The creation of this new legal order, with its lawmaking, independent of the States but directly binding in the whole territory of the Community, the Court – the decisions of which can de facto change the division of powers in the Member States and which can be addressed not only by the Member States but also by private persons and entities. However, although at present everybody is aware of the existence of this new legal order, the importance of it is always either under- or overestimated. Being in a constant process of transformation, the emerging Europe, whose final goals are not yet defined, managed, however, to destroy an old understanding of the State, without producing a new one instead. This new understanding has to be formed in the years to come. In the meantime, sovereignty remains one of the most thoroughly studied and, at the same time, the least understood notions, among all the keys able to help us “unlock the mysteries of the new Europe” (42). Acknowledgements: I am grateful to professor Ákos Toth from Strathclide University, Glasgow for his valuable remarks. References:
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