Democratic implications of EU membership: incorporating the contested character of the EU - Bertjan Wolthuis Ben Crum Alvaro Oleart Patrick ...

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Democratic implications of EU membership: incorporating the contested character of the EU - Bertjan Wolthuis Ben Crum Alvaro Oleart Patrick ...
Democratic implications of EU
membership: incorporating the
contested character of the EU

Bertjan Wolthuis
Ben Crum
Alvaro Oleart
Patrick Overeem
Democratic implications of EU membership: incorporating the contested character of the EU - Bertjan Wolthuis Ben Crum Alvaro Oleart Patrick ...
DISCLAIMER
This project has received funding from the European Union’s Horizon 2020 Research & Innovation
programme under Grant Agreement no. 770142. The information in this deliverable reflects only the
authors’ views and the European Union is not liable for any use that may be made of the information
contained therein.

DISSEMINATION LEVEL
Public

www.reconnect-europe.eu                                                                 Page 2 of 35
Project:           RECONNECT – Reconciling Europe with its Citizens through Democracy and Rule of Law
  GA:                770142
  Horizon 2020:      H2020-SC6-CULT-COOP-2017-two-stage
  Funding Scheme:    Collaboration Project

            Democratic implications of EU
            membership: incorporating the
            contested character of the EU
                                Work Package 5 – Deliverable 3

 Due date:                                                                                 31.12.2020
 Submission date:                                                                          26.12.2020
 Lead beneficiary:                                                                    VU Amsterdam
 Authors:                                 Bertjan Wolthuis, Ben Crum, Alvaro Oleart, Patrick Overeem

www.reconnect-europe.eu                                                                            Page 3 of 35
Content

1. Introduction ......................................................................................................................................... 5
2. The EU as an intergovernmental arrangement for order and peace ................................................... 8
   2.1 Characterizing the relationships the European Union establishes................................................. 8
   2.2 Implications.................................................................................................................................. 11
3. The EU as an order of cosmopolitan justice....................................................................................... 13
   3.1 Characterizing the relationships the European Union establishes............................................... 13
   3.2 Implications.................................................................................................................................. 14
4. Evaluating controversies regarding EU democracy and its relation to member states ..................... 18
   4.1 Suppression of political pluralism in Hungary .............................................................................. 18
   4.2 Violation of judicial independence in Poland ............................................................................... 20
   4.3 Germany’s challenge of central-level legal supremacy ................................................................ 21
   4.4 Policy conditionality and the bail-out of Greece .......................................................................... 24
   4.5 Differentiated integration and Brexit ........................................................................................... 26
5. Conclusion ......................................................................................................................................... 28
Literature ............................................................................................................................................... 31

www.reconnect-europe.eu                                                                                                                     Page 4 of 35
1. Introduction
European integration transforms the very nature of the states involved in it. Despite the wishes
of ardent Euro-federalists, integration does not dissolve these states. However, states that join
the EU are not the same anymore after joining. Chris Bickerton has evocatively captured this
transformation as one from nation states to member states, which are ‘entities whose self-
understanding is inseparable from pan-European-level cooperation and policymaking’
(Bickerton 2012: 49). Bickerton’s argument is compelling in the way in which it highlights how
European integration transforms the self-image, and consequently the attitude and outlook, of
the states that engage in it. Not only is the EU more than the sum of its constituting parts; its
parts are also transformed by virtue of being part of the whole.

Thus, EU membership can be seen as institutionalising a range of interdependencies that
operate not only in the relations between the member states but also have consequences for
their domestic operation. EU membership imposes certain material and procedural constraints
on member states’ political organisation. This implies that the character of the EU as a polity
comes with a set of constitutional requirements for its member states. In particular, the EU
aspires to be a democratic polity under the rule of law (cf. Habermas 1992).1 This is reflected
in the statement of the foundational values in Article 2 of the Treaty on European Union (TEU),
in which democracy and the rule of law feature as the most distinctive constitutional values.

Yet, whatever the shared values that have been enshrined in the EU treaties, the EU is not a
state, federal or otherwise, at least not for the foreseeable future. There is wide, if not
unanimous, agreement that EU member states are not mere provinces or Länder. Hence, there
is not a specific (state-based) conception of democracy that can be imposed on EU member
states. On the contrary, the EU is characterised by the fact that all its member states bring their
own, often long-entrenched, conceptions of democracy into the Union and accede with
diverging motivations and ideas about what the EU is and how it should evolve. In that sense
the EU is a doubly pluralistic polity composed of a heterogeneous set of member states that
are each – supposed to be – pluralistic internally. To turn this observation around, the EU’s
democratic character hinges on its ability to respect and guard the heterogeneity of its member
states as well as the pluralism of their domestic constituencies.

Against this background, this paper asks:

        How does the diversity of EU member states, and the different conceptions of the EU
        in which this is reflected, affect controversies about the relationship between the EU
        and its member states?

In line with other RECONNECT WP5 deliverables (in particular D5.2 and D5.4), this paper thus
departs from pluralism as an essential feature of democracy; a feature that has been taken to
the next level in the EU. Putting pluralism at the heart of democracy means that one recognizes
‘the fact of pluralism’ (Rawls 1993). A democratic order serves the aim of allowing the peaceful
co-existence of diverse interests and values. As we underline in RECONNECT Deliverable 5.2
(Crum, Oleart and Overeem 2020), democratic pluralism requires political tolerance among all

1
 Note, however, that this normative reading of the EU and the core values it involves deviates from the much
more sceptical interpretation by Bickerton (2012: esp. 68) who sees member statehood as primarily characterized
by national executives using the European frameworks to sever their relationship with the national demos.

www.reconnect-europe.eu                                                                           Page 5 of 35
parties involved, even if they maintain agonistic relations to each other, as well as respect for
the institutions that protect and express the pluralist order, like a well-working constitution,
independent courts, and a pluralist media (cf. Herman 2017). The way we conceive of it in this
paper, the pluralism that emerges at the EU level involves above all a pluralism of different
conceptions of what the EU is and the nature of the relations that it establishes between its
component parts. The question of EU democracy is exactly how these different conceptions
can be made to peacefully co-exist.

To put our question in focus, we refer to five topical issues that demonstrate that a) the exact
constitutional requirements of EU membership are not self-evident and that b) even if they can
be identified, it remains unclear on what basis and by what means member states can be
compelled to comply with them. The first two issues logically involve the two countries against
which Article 7 proceedings have been initiated for risking to breach the EU’s fundamental
values. For one, the Fidesz-run government of Hungary has been able to exclude competing
political voices from civil society and the public sphere without provoking any consequential
response from the EU or other member states so far (Enyedi 2018; Bárd and Pech 2019). For
another, the Polish government has come to undermine the independence of the judiciary by
placing it under direct executive control (Pech 2020).

However, questions about the democratic requirements of EU membership are also raised by
longer-standing member states. A prominent case in point – third in our list – is the position of
the German Bundesverfassungsgericht that recurrently questions the supremacy of EU law and
the exclusive authority of EU institutions, especially the Court of Justice of the European Union
(CJEU), to decide about EU law supremacy. Most recently, in its judgement on the Public Sector
Purchase Programme (PSPP), the Bundesverfassungsgericht found that policies of the European
Central Bank were insufficiently justified (Grimm 2020; Mayer 2020).

The fourth issue concerns the way the EU has dealt with the euro crisis, which has attracted
criticism for interfering deeply in national affairs and violating the democratic autonomy of its
member states (Scharpf 2011; Crum 2013). Most notably, in the case of Greece, it was said that
national democracy was held hostage to the policy requirements that the EU imposed, as it
would only provide the necessary liquidity if the country were to rubberstamp an extensive list
of reforms.

A fifth and final issue we want to highlight is the practice of differentiation, which involves
member states opting out of specific EU policies or policy domains. These domains include
monetary integration, the Schengen-zone of passport-free travel, defence cooperation and the
European public prosecutor. Some states have also demanded opt-outs of parts of EU
integration areas. A notable case in point was the pre-Brexit demand from the Cameron-
administration to be exempted from certain parts of the Single Market. Inevitably,
differentiation raises the question whether there are certain EU constitutional essentialia that
put a limit to the scope of differentiation and the policy domains for which demands for
differentiation can be accommodated.

The basic premise of this report is that these five issues need to be examined together. Up until
now, scholars have mostly analysed these issues in isolation. However, there are two important
reasons for grouping the issues. For a start, they all concern the relation between national and

www.reconnect-europe.eu                                                               Page 6 of 35
EU democracy. They all touch on the underlying issue of whether EU membership comes with
specific democratic requirements and, if so, what these requirements are.

Secondly, the five issues are not only linked substantially, by the topic of nation state and EU
democracy, but also in their structure and the political dynamics that cause them to emerge.
The issues have become genuine controversies within EU thought and practice instead of just
problems that allow for a technical solution. With the term ‘controversies’ we mean that these
issues are potentially intractable because the problem definition and proposed solution depend
on the conception of the EU and of the relationships the EU has established between the
participating states and their nationals. The five issues highlight that there is a deep controversy
about what the EU is. Too often this remains under-appreciated in academic analyses, which
tend to respond to these controversies by proposing solutions. As logical as these solutions may
appear, the only thing they usually show is that these issues are solvable from a specific
conception of the EU. Then the issues appear to be relatively simple problems that can be
handled with the right recipes, or they may even turn out not to be problems at all. But that is
true only within that particular conception of the EU. Once one recognizes that the
controversies involve conflicting conceptions of the EU, which imply not just different solutions
but also different readings of the problem, it becomes clear that they are intractable. Hence,
rather than moving directly to solutions, our primary concern in this report is to analyse them
in a way that brings the stakes and positions involved fully to light.

This report aims to demonstrate that these controversies involve fundamentally different
conceptions of the EU itself. This pluralism is integral to the EU and, rather than to resolve these
controversies by siding with one or the other conception, it is in the nature of the EU to serve
as a political arena in which they can peacefully co-exist side by side. To capture the diversity
in positions about the nature of the EU and given that it is agreed that it is not a state, we start
from the two basic positions that have emerged in the academic literature (although, obviously,
they come in multiple versions). The first position underlines the intergovernmental character
of the EU and emphasizes its primary focus on establishing order and peace. Alternatively, we
conceive of the EU as a cosmopolitan union, which has both states and states’ nationals as
subjects.

In the following sections, we first reconstruct the logic of each approach with a particular focus
on how they conceive of the relationships that the EU establishes between, primarily, the EU
member states and, secondarily and where appropriate, their nationals. More specifically, for
each position, we elaborate these relationships at three levels, at the level of contracting states
(Herren der Verträge; constituent power), of subjects of the EU order, and of (co-)authors of
the EU political system. How does each of the two positions understand these roles? And what
is presupposed in the relations (and mutual obligations) between the member states for these
roles to be effectively and validly exercised? Then we apply the two EU positions to the five
issues. As said, our primary aim is to highlight the conflict about national and EU democracy
that runs through these issues and that is intimately connected to different conceptions of the
nature of the EU. Once this is fully appreciated, it becomes clear that these issues do not allow
for technical solutions but can only be addressed to the extent that points of convergence can
be found between the underlying positions.

www.reconnect-europe.eu                                                                  Page 7 of 35
2. The EU as an intergovernmental arrangement for order and peace
2.1 Characterizing the relationships the European Union establishes
The first approach can be called a ‘realist’ and intergovernmental perspective on EU integration
and democracy.2 This approach draws in part on the thought of Thomas Hobbes, but the realist
line of thinking can also be extended to such very diverse thinkers as Machiavelli, Nietzsche,
and Carl Schmitt, and contemporaries like Bernard Williams, Raymond Geuss and Chantal
Mouffe. These thinkers all aim to avoid approaching politics in a moralistic and legalistic way
and emphasize the unavoidability of political contestation. This is of course particularly
pertinent in the context of the European Union, as it was created by member states with
distinct identities and long-standing conflicts of interests.

The realist approach can best be explained by spelling out three key tenets and applying them
to the EU. The first tenet is that politics is an unending quest for order. Seen in this light,
European integration primarily offers a response to what Bernard Williams has famously called
the ‘first political question’, namely, how to secure peace and order in a Hobbesian world
(Williams 2005). Importantly, the Hobbesian world the EU speaks to does not concern the inter-
personal relations to which it is usually applied. Instead, European integration responds to the
quest for order in the international realm, which more than other domains can still be
considered to operate according to the Hobbesian logic of anarchy (Morgenthau 1948; Waltz
1959; Mearsheimer 2019). This corresponds to the view of the EU as a supplemental order:
before its establishment, the states that joined the European integration project had already
secured a social order within their own boundaries and they were able to sustain that order
also without the European project. What is more, these national orders come with long-
standing historical legacies and are replete with strongly entrenched routines and cultures that
separate them from each other. European integration was originally not meant to replace or
transform these domestic orders. Instead, its main purpose was and remains to establish an
order between states and to secure peace on a continent that has long been torn apart by wars.

This quest for order and peace is unending. The realist perspective highlights that no order can
ever eradicate the underlying potential for conflict between its subjects. An authoritative order
may succeed in pacifying the relations between the subjects for a while, but it does not change
their inherent motivations; it only contains the violent expression of these motivations by
institutionalizing an effective counterforce. Hence, the primary political quest remains that of
order. Correspondingly, the primary aim of politics will continue to be peace rather than justice
and equilibrium rather than equality; even in a tightly integrated and apparently peaceful
system such as the EU. Precisely because conflicts over interests and principles can never be
eradicated, the realist perspective highlights how exceptional it is to secure a certain degree of
order and peace in a conglomerate of states. If conflict and disorder are the natural benchmark,
achieving peace and order is indeed a major achievement.

The second tenet is that order, both before and after its establishment, must continuously be
legitimated. This is what Williams (2005) has called ‘the basic legitimation demand’. From a

2
 Note that here ‘realism’ is not meant to refer to one of the main schools in International Relations theory (next
to neo-liberalism), but rather to the approach that offers an alternative to (mainly Rawlsian) political liberalism in
normative political theory (cf. Rossi and Sleat 2014).

www.reconnect-europe.eu                                                                                  Page 8 of 35
realist view, any form of order emerges from a balance of power in which the ability to resort
to violence and domination is balanced by an effective counterforce. In Hobbes’s analysis, this
counterforce is embodied by the overarching societal power of the Leviathan; the Leviathan
secures order and peace for all. The willingness of the subjects to accept the legitimacy of the
Leviathan relies on the recognition that, however powerful any of them may be, none of them
can on its own secure its safety against all others. Thus, some sense of a balance of power, or
at least of mutual vulnerability, precedes the very establishment of order. In the establishment
of the Leviathan, these counterforces are institutionalised and generalised so that by the
prohibition of the exercise of violence by all except the Leviathan, all come to enjoy an equal
measure of security and peace. And the Leviathan is legitimate to the extent it manages to
provide security and peace.

Now, to be sure, the EU does not resemble the absolute and sovereign power of Hobbes’s
Leviathan and perhaps it will never even come close. But we can understand European
integration as premised on the recognition of the interdependencies and mutual vulnerabilities
of European states in the post-war world (Beetz 2017). Recognizing the atrocities and
destruction that had been brought about in the absence of a shared order – and operating in
the shadow of the greater power that had emerged across the Atlantic – the European states
have come to agree to a settlement of their relations. To secure order on the continent, they
‘contracted out’ their external security to the United States and built a European Union to
secure their internal order, albeit working less with sticks (coercion) than Hobbes’s Leviathan
and more with carrots (rights). This Union is thus deemed legitimate if, and to the extent to
which, it manages to secure order and peace between its member states.

The third and last tenet goes still further ‘beyond’ or even against Hobbes and is basically the
normative idea that, again because of the fundamental realist assumption of ineradicable
conflict, the overarching order itself needs to be limited. A new conflict can easily emerge
between the highest power and its subjects, in this case between the EU and its member states.
This implies that full integration is unfeasible and, indeed, undesirable, as it would dissolve the
distinct identities of the constituent parts. By its very attempt to settle conflicts between its
subjects, any Leviathan-like order would create a new vertical division between itself and them.
In the EU, this is particularly the case when the EU starts bypassing the member states and
hands out rights to national citizens. While this may boost the EU’s legitimacy, it also holds the
potential for conflicts over sovereignty and power with the member states. In sum, the answer
to the first political question for order must always remain partial and temporary and can never
become complete and finite. Attempts to finally settle it run a high risk of becoming oppressive,
also in the case of the EU.

This reading has critical implications for the kind of order the European Union is and the kind
of relationship it creates between the member states and itself. Above all, it underlines that
any settlement continues to reflect the underlying balance of power. Hence, realists tend to be
enamoured with the concept of ‘modus vivendi’ (Horton 2010; Horton, Westphal, and Willems
2019). Typical cases of a modus vivendi arrangement include a truce or ceasefire or a no-fly
zone or demilitarized zone in a war-torn country. Notably, modus vivendi arrangements hardly
advance beyond the underlying balance of power. While sometimes they are very stable, in
most cases they can be quickly upset by the smallest shift in the underlying relations. Modus
vivendi arrangements are accepted with only a minimum of consent. In most cases, parties in

www.reconnect-europe.eu                                                                 Page 9 of 35
a modus vivendi arrangement bow to the inevitable; they accept the arrangement, but only
grudgingly.

Since this is not the case for EU member states, it may be more appropriate to think of the EU
as a compromise. Although compromises can vary a lot, in general they go beyond modus
vivendi arrangements in that they require the parties involved to show a greater amount of
consent (Wendt 2016). Parties agreeing to a compromise have a greater (though never
complete) willingness to accept the arrangement than in a modus vivendi, for instance because
they see the compromise as being, on the whole, beneficial to their interests if not their values.

This corresponds to the way in which Andrew Moravcsik (1998) explains European integration
in his liberal intergovernmentalist account. Moravcsik starts from the distinct interests that
member states have and the interdependencies they experience (in economic rather than
security terms, though). These interests drive them to establish a shared order. Moravcsik
emphasizes that the organization of this order reflects the underlying balance of power: states
that are already more dependent on international economic relations will concede more than
the ones that have less to gain from the agreement.3 The arrangement is not a mere modus
vivendi, however, as the member states clearly consent to (i.e., willingly and publicly accept)
the order as well. Hence Moravcsik (2005) has come to characterize the European Union as an
‘equilibrium’. The notion of equilibrium speaks to the balance of forces between, on the one
hand, the gains that all member states can secure from cooperation and, on the other hand,
the diversity of interests that ultimately separates them from each other. In thus highlighting
the contradictory forces underlying European integration and the deeply entrenched diversity
between the member states, Moravcsik takes direct issue with classical teleological accounts
that assume that the logic of integration is bound to eventually supersede the member states
as its constituent elements. And while the supposed European equilibrium has been severely
tested by the crises that the EU has seen since 2005 (a constitutional crisis, an economic crisis,
a refugee crisis, Brexit, and a pandemic), it has essentially remained in place: Brexit apart, the
European Union has remained intact, partly because the crises have been met by piecemeal
measures rather than a wholesale transition towards further integration.

Moravcsik mainly developed the intergovernmental account as an analytical and explanatory
approach. In recent years, Richard Bellamy has recast it in explicitly normative terms. Bellamy
argues (2013; 2019) that the intergovernmental nature of the EU aligns with a republican
understanding of the relations it establishes between the member states. This republican
reading recognizes the achievements of the EU in establishing peace and order and in
facilitating respect and cooperation between the member states. However, Bellamy also very
much underlines the persistence of the deep differences between the member states. He
conceives of the EU institutions in ‘demoi-cratic’ terms, so as representing the different peoples
of Europe rather than some overarching, common identity. What is more, for Bellamy the
member states remain the primary units with the required level of cultural integration and

3
  See also Arregui, Stokman, and Thompson (2000) who compare three models of European decision-making (the
compromise model, the position exchange model, and the challenge model) and tested them on a database of
154 issues on the EU’s agenda. While finding evidence for all three models under varying conditions and in varying
respects, they conclude that ‘the results support to some extent to [sic] the compromise model. This gives
credence to the view that legislative decision making in the European Union is based on processes in which
information and persuasion are central, and in which actors are willing to compromise for the sake of common
solutions’ (2000: 23). This is not a very surprising conclusion, perhaps, but important in light of our discussion.

www.reconnect-europe.eu                                                                              Page 10 of 35
institutional infrastructure to realize republican self-government. The same conditions remain
lacking at the European level. For Bellamy, the persistent differences between the EU member
states raise a particular concern about the danger of ‘inter-state domination’ (2013: 512). He
sees such domination for instance in the euro crisis which gave rise to ‘a system of domination
of the creditor over the debtor states’ (2013: 513) (see section 4.4 below). The same crisis also
showed that the EU itself can dominate over its member states. Ultimately, for Bellamy, the
privileged status of national self-government and the danger of inter-state domination puts a
limit on how far the integration of Europe can go. As he puts it, ‘moves away from such a union
of peoples towards greater political unity involve an inevitable loss of representativeness and
political legitimacy’ (2013: 499). He believes that such representativeness and political
legitimacy are effectively secured at the national level. EU member states, representing
national demoi, have and retain the actual position and legitimacy to do many things on their
own terms.

To conclude, a realist and intergovernmental perspective emphasizes not only that the
European Union is an order established primarily to secure order and peace, but also shows
that the EU has to be legitimated and limited in relation to its member states and European
citizens. European democratic politics is an arena in which the EU and the member states
continuously play out the struggle over sovereignty in a peaceful manner. The fact that the EU
is not just an intergovernmental organization between states but a supranational organization
with a direct relationship with citizens makes this struggle even more pertinent. It creates a
rivalry between the EU and its member states about the same competences.

2.2 Implications
The three tenets of the realist perspective shown before can be directly related to the three
roles that states adopt as members of the EU: that of contractors, of subjects, and of authors.

2.2.1 States as contractors establishing order

In their role as contractors, the member states come together as political agents. In this
intergovernmental role, they act as distinct sovereign entities, exercising their autonomy by
establishing a particular political order – a Leviathan of sorts – to secure order and peace on
the continent. Contrary to Hobbes’s view, however, member states exercise their sovereignty
not just once and for all, but continue to do so also after they have established the EU. They
remain active political agents in their own right. This means that they can not only revoke their
membership altogether (as we have seen with Brexit) but also try to revise the treaties and
recall some of the competences they previously handed over to the EU. They can try to
negotiate partial participation in various European arrangements (Schengen, the euro, and
other ones), including opt-outs and other special arrangements. This is part of the ongoing
political struggle over sovereignty in the European arena. This struggle first and foremost takes
place between the EU and its member states, EU citizens are not directly involved in it. Although
as contracting parties the member states are democratically legitimated by their citizens,
according to various national procedures, these citizens are not contracting parties themselves.
The EU treaties are created for them but not by them.

www.reconnect-europe.eu                                                              Page 11 of 35
2.2.2 States as subjects securing mutual interests

Secondly, in their role as subjects, the member states are not so much sovereign agents but
rather subordinate ‘takers’ of EU law. They willingly subject themselves to various forms of law:
first of all, the treaties, but also other forms of often very detailed EU law. They accept EU law
as legitimate, and by accepting it, they further legitimate it. The reason they do so is, as noted
before, their sense of mutual vulnerability: they believe EU law can protect them against the
domination of the other member states. Accepting EU law creates a level playing field,
particularly in the Single Market but also in other domains of EU integration. Such shared laws
can be endorsed in terms of justice. However, in the realist view, they ultimately remain a
matter of interests and even economic and political survival.

In the end, in the realist perspective, the relations between the member states and the EU are
a matter of political contestation, not of legal or moral obligation. To the extent that European
integration gives rise to common constitutional obligations (as it does), these should be
informed by the principle of mutuality. The cooperation between member states is motivated
by joint interests from which they all benefit and which they secure by subjecting themselves
to reciprocal constraints. This relation of subjection applies not only to the member states,
however: the national citizens are also EU citizens and thus direct subjects of EU law. Herein
lies an ineradicable source of political conflict, indeed rivalry, between the EU and its member
states, because they both make direct, possibly conflicting, claims on their citizens. A simple
legal principle of EU supremacy will not solve this conflict, because member states are not just
passive recipients of EU law.

2.2.3 States as co-authors resisting EU domination

In their third role, finally, the member states are not only the ‘takers’ but also the ‘makers’ of
EU law. They act as co-authors of the rules to which they subsequently subject themselves. The
fact that they are co-authors and not simply separate authors underlines the cooperative and
collective aspect of the European legislative process. Particularly in the Council of Ministers,
the member states sit together at a shared table and adopt a new capacity ‘in between’ their
roles of intergovernmental contracting parties and subjects of supranational regime. In this
capacity, they act as political agents who together determine EU policies and adopt EU
legislation. And precisely to make this possible, the EU itself needs to be limited. Domination
of the EU over the member states – or of the European Commission and the European
Parliament over the Council of Ministers – endangers this kind of political cooperation. The
quest for order and legitimacy cannot be settled permanently and unilaterally in the EU’s favour
at the expense of the member states. Particularly in the context of the EU, where the
supranational order builds on pre-existing and still-extant national orders, the subjection of the
member states is limited to the domain to which the common settlement applies. The shared
obligations of member states towards the EU go only so far as their express, continuous
consent allows for. Indeed, this consent can also – under a given procedure – be revoked. If
that were not possible, the member states would be subject to EU domination.

Moreover, in light of the republican concern with domination, particular restraint is required
to protect the autonomy of national democratic legislatures against possible EU incursions.
Member states should be allowed to retain constitutional autonomy to the extent that it is
essential for the preservation of national self-government (Article 4(2) TEU). While

www.reconnect-europe.eu                                                               Page 12 of 35
membership of the EU obviously comes with obligations and removes certain policy choices
from the national domain, it has to leave the capacity of national self-government intact.
Precisely because citizens are mostly subjects of EU law and do not directly act as its co-authors,
let alone as contracting parties to the EU treaties, their political expression and participation at
the national level needs to be protected. This view is in line with Bellamy’s (2019) ‘demoi-cratic’
conception of the EU as ‘a republican association of sovereign states’ that limits the chances
for domination much more than any other structuring of sovereignty, be it concentrated
sovereignty in a unitary state or dispersed sovereignty away from the nation state to other
actors.

Hence, as long as citizens continue to have a strong political affiliation with their nation-state
and as long as the EU has ‘demoi’ rather than one demos, the process of European integration
should not advance to the point where it would impair or amend the national constitutional
structures and the domestic political processes. By the same logic, the adoption of EU-agreed
rules requires an act of acceptance in which reservations that may exist at the national level
are balanced against the costs of non-abidance. Such an assessment is informed by the
existence of the option to withdraw from the cooperation altogether or to negotiate partial
opt-outs, rebates, and exceptions from the shared structure.

3. The EU as an order of cosmopolitan justice
3.1 Characterizing the relationships the European Union establishes
The European Union has two kinds of subjects: member states and member state nationals.
Usually, this characteristic is displayed hierarchically. EU institutions are placed above EU
member states, and these states are placed above their own nationals. However, according to
the cosmopolitan conception of the EU developed in this section, this linear hierarchy is
inadequate. The EU member states have signed treaties in which they have given each other’s
nationals rights, and they have accepted corresponding duties to each other’s nationals. What
is characteristic about EU law is that it also applies to the relation between a state and a foreign
person. Under EU Single Market law, each EU member state national has equal market rights
in each of the member states. The cosmopolitan conception of the EU therefore places the two
classes of subjects at the same level. Thus, it conceives of the EU legal hierarchy in triangular
rather than in linear terms: in the top corner are EU institutions; states are in one base corner,
nationals in the other.

The adjective ‘cosmopolitan’ is used here in Kant’s sense. For Kant, the notion of ‘cosmopolitan
law’ refers to a category of natural law that applies to the horizontal relation between a state
and a foreign person visiting that state. Kant distinguishes cosmopolitan law from the law
between persons (within a state; under positive domestic law) and from the law between states
(international law). Cosmopolitan law is that which applies between states and foreign persons.
It applies to their interactions at the level of the globe, where the earth’s surface is divided up
by states and where persons cross borders by choice (travel, commerce, research) or accident
(shipwreck) (Eberl and Niesen 2011). Kant’s philosophy aims to determine principles of natural
cosmopolitan law that are acceptable to both states and foreigners, but there is also positive
cosmopolitan law. Most states have promulgated terms under which foreigners are allowed to
enter their territory, migration law. However, each state’s migration law is of unilateral origin;
the foreigners who are subject to it have had no say in it (Niesen 2012; Owen 2014). Foreigners

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who want to visit a state can either accept the terms and enter or not accept them and stay
out of the state’s territory.

EU Single Market law is also positive cosmopolitan law, as it gives each EU citizen equal market
rights in EU states, irrespective of the EU state where this national is located and irrespective
of the EU state of which this person is a national. European Single Market law is a special kind
of positive cosmopolitan law because it is of ‘omnilateral’ (Ripstein 2009) origin. Migration law
can be thought of as illegitimate because it is undemocratic. Not all who are subject to its
provisions can be its authors. In the EU both states and their nationals authorize the rules that
apply to their relation in border crossing interaction and commerce. EU Single Market law is
positive cosmopolitan law that can base its claim to legitimacy on its democratic credentials.

The aim of the EU in this conception is to give equal free movement rights to each national.
This equal distribution of market rights is a form of distributive justice but not of social justice.
It is cosmopolitan justice. It is cosmopolitan justice because it concerns the border-crossing
interaction and commerce of Single Market state nationals in Single Market states.4

3.2 Implications
In this section we proceed by outlining the most important implications of this EU conception
around the three possible roles that states and their nationals can play in the EU: that of
contractors, of subjects, and of authors.

3.2.1 States and nationals as contractors

States are each other’s equals in the sense that they are not hierarchically related to each other.
A state cannot be another state’s master or another state’s subject. A state’s freedom or
sovereignty is also understood in this relational sense. It is a state’s freedom of choice to use
its available means in the way this state sees fit, as long as it does not violate another state’s
freedom of choice. In this subsection we use sovereignty and equality in this relational and
normative sense.

Since we are interested in the EU, we focus on what states can do with their freedom and, in
particular, on what they can do together, through agreements. States can choose to cooperate
with each other. They can use their freedom to agree that they shall come to each other’s
defence, for example. Treaties in which this is agreed are international in the literal sense that
they apply to the relation between nations or peoples, viewed as collectives, who operate
through their governments. Such treaties sometimes establish intergovernmental
organisations. The typical institution is the general assembly, in which each of the member
states is represented. The EU conception adopted in this section views the treaties of European
integration as cosmopolitan, not international, treaties because they apply to the relation
between each member state and each member state national. The EU and its predecessors
should therefore be placed in the class of cosmopolitan unions, not in that of international
organisations.

4
 The term ‘Single Market states’ refers to states that participate in the Single Market. The term is more inclusive
than EU member states, since not all states that participate in the Single Market are EU member states.

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When states decide to become party to international or cosmopolitan treaties, they do not lose
their sovereignty or freedom, just as persons do not lose their civil personality when they
decide to become party to a contract. We do not claim that states and persons are identical,
only that the relation between persons and the relation between states can be compared: both
are relations between equals. States cannot be subjected to each other and neither can
persons. A person who sells him- or herself as a slave, would thereby lose his or her freedom
and stop being a person, a bearer of rights and duties. Such contracts are not allowed in modern
civil law systems, and neither are states allowed to do such a thing in the Kantian approach
followed here. States cannot legitimately sell themselves or parts of themselves to other states.
States can freely decide to become part of a larger state. Each part of the larger state no longer
has the freedom to decide for itself to return to its previous, sovereign status. That is now a
question for the whole to decide.

The EU is not a state, it is a union. It has sovereign states as members. That these states are still
sovereign, can be concluded from the right that they have to leave the Union. The choice to
leave is a choice for each individual state to make. When states join the EU, they freely accept
certain duties (for instance the duty to not discriminate foreign Single Market state workers),
in return for the rights that their nationals receive (such as the equal right to work in other
Single Market states), for as long as they themselves see fit. These duties may limit the
legitimate options states have (they are no longer allowed to treat their own nationals
favourably) and these rights may multiply the options of their nationals (they can now do in
other states what they previously could do only in their home state), but all of this does not
affect the sovereignty of the contracting states. Sovereignty is not a matter of available options
or means, but of the freedom of choice to use the latter in the way the state sees fit. The EU is
a way in which states use their sovereign freedom and they can change their minds and use
their freedom differently, as Brexit has demonstrated.

As far as sovereignty is concerned, it does not matter whether the integrating state chooses to
become a member state, and hence has the opportunity to shape with all others EU legislation,
or whether it chooses to remain a non-member that has accepted the entire EU acquis with
one strike of the pen, as Switzerland chose to do. In the latter instance it is not correct to classify
the state in question as a ‘colony,’ to copy the vocabulary with which Boris Johnson qualified a
post-soft Brexit UK when he resigned from former Prime Minister Theresa May’s cabinet. 5
Switzerland is free to reject the acquis and leave the Single Market; and it is also free to apply
for EU membership and, after admittance, co-author new EU law and so establish a more
democratic EU.6 However, Switzerland does not want that; this state has chosen to use its
freedom differently.

The cosmopolitan legal order of Single Market law, with states and persons as subjects, is not
in conflict with state sovereignty. To understand why, one needs to appreciate the distinction
between on the one hand the decision to enter or exit the Single Market and, on the other
hand, the vote that a state or person has as a participant in the Single Market union. A state,
viewed as a host – and its nationals, viewed as visitors – always has the sovereign freedom to

5
  The letter is published on https://www.bbc.com/news/uk-politics-44772804.
6
  So, the problem with the Swiss (or with the EFTA states) is not an issue of sovereignty or freedom (or its opposite,
‘domination’, as Eriksen (2019) and Eriksen and Fossum (2015) think), located at the level of contracting states,
but an issue of democracy, at the level of EU institutionalization.

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join the Single Market or to withdraw from it. The system of Single Market law can therefore
be said to be voluntary.

However, as soon as a state and its nationals want in and come together with other states and
their nationals, the configuration changes. By the very act of coming together in order to
arrange things together (Hobbes 1997: 94), a collective emerges. In the case of the Single
Market, this is a collective of states and persons. From the moment of assembly, these states
and persons have the right to speak and vote about how to give shape to their Single Market.
In this configuration the preference of one single state and its nationals can no longer be
considered decisive. The provisions of Single Market law that those assembled adopt,
necessarily apply to the relation between each Single Market state and each Single Market state
national. Why should the preference of one state and its nationals outweigh the preferences
of all the other nationals and all the other states with which this state and its nationals are, or
will be, connected by Single Market law? As soon as a state joins others to establish a Single
Market, it cannot reasonably claim the right to shape unilaterally the relation it has with all
these others. That conflicts with the equality and freedom of states and persons. All should be
the authors of the law to which all are subjected (Fraser 2008).

3.2.2 States as subjects of positive cosmopolitan law

As indicated, the cosmopolitan conception recognizes that the EU legal order has states and
these states’ nationals as subjects. First, states are part of the EU as subjects, so not as
governmental executive institutions with their usual discretionary competences, like in
traditional intergovernmental organisations. Second, states are subjects alongside their
nationals, which are also subjects of the EU. Within the cosmopolitan conception, EU Single
Market law is viewed as animated by the objective to distribute free movement rights equally
among Single Market state nationals. That objective explains why the system of Single Market
law is configured as a genuine ‘legal condition’ (Kant 2017) or ‘basic structure’ (Rawls 1993),
with institutions to which both states and persons are subjected. This is required to assure the
equality of Single Market rights. That objective requires positive cosmopolitan law to be
executed by institutions ultimately independent from both Single Market states and Single
Market state nationals. If the application of EU law is left to each state itself, for example, it can
never be certain that the rights are the same in different states. Neither can legal equality be
guaranteed if application is left to particular nationals (persons with large and powerful
businesses, for example). Independent executive and judicial institutions are necessary to
distribute cosmopolitan justice. Thus, the cosmopolitan reading of the EU explains the
indispensable roles the European Commission and the Court of Justice of the European Union
(CJEU) play in the EU.

The implication is that a participating state’s administrative and judicial authorities are bound
by EU law and are, within the scope of EU law, subjected to the Commission, the executive
institution that is independent from member states and member state nationals, as well as to
the CJEU. At the member state level, it is the member state’s judicial branch that has to have
the final say in questions of EU law that divide union citizens and member state institutions. To
guarantee uniform application of EU law, questions of interpretation ultimately have to be
settled by the CJEU. This includes questions about the scope of application of EU law. The CJEU
and not national courts have to have the authority to answer that question, in light of the Single

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Market law’s objective to distribute Single Market (i.e., cosmopolitan) justice (Kelemen and
Pech 2019).

3.2.3 States and states’ nationals as co-authors of positive cosmopolitan law

A legal order is democratic if those subjected to its provisions are simultaneously its authors.
As indicated, basic EU law is law between states, viewed in cosmopolitan law as hosts of foreign
visitors, and these states’ nationals, viewed as potential foreign visitors. That law, governing
the horizontal host-visitor relation, has to be authored by both the states and persons involved
(through their representatives) on an equal basis. This means that the view of the EU as a
cosmopolitan union requires an institutional structure according to which states and these
states’ nationals occupy equal positions in the legislative process, at least with respect to all
issues that concern positive cosmopolitan law.

The EU treaties aim to constitute such a democratic polity. Its two subjects are represented in
the two legislative institutions. The representation of states’ governments in the Council means
little, however, if these governments themselves are not ‘accountable to’ their parliaments
(Article 10(2) TEU) and if the representatives in the national parliaments are not chosen in a
free election. Union citizens, in turn, are represented by their representatives in the European
Parliament (Article 14(2) TEU). Also this representation is immaterial if these representatives
are not freely elected (Article 14(3) TEU). If a member state government is not accountable to
a freely elected parliament and if elections for the European Parliament (which are organized
per member state) are not free and fair, then the EU legislature, which consists of both the
European Parliament and the Council of the EU, cannot claim to speak for all EU member states
and all EU citizens and, consequently, fails in light of democratic standards.

For long, the Council, in which states are represented, held far more powers than the European
Parliament, in which these states’ nationals are represented. Over time, this gap in powers has
been reduced (Rittberger 2005) and since the Treaty of Lisbon, the Council and the European
Parliament have become as good as equal co-authors in the adoption of EU legislation, at least
with respect to Single Market law. In EU political theory, the need to have states’ and citizens’
representatives, in the Council and the European Parliament respectively, operate on an equal
basis has been vehemently defended by Habermas (2011). However, while Habermas offers a
reason for seeing states and persons as the EU’s two constitutive powers, he offers no reason
why they have to be viewed as equal constitutive powers.

The view of the EU as a cosmopolitan union defended in this section can explain why this is
required. Basic EU law governs the horizontal relation between states (as hosts) and persons
(as visitors). These rules applying to the horizontal host-visitor relationship have to
democratically legitimated; that is, have to be authored by the parties on both sides of this
relation equally, that is, by states and persons equally. Under EU law, each person plays the
role of host, together with all the other nationals of his or her state, and the role of potential
foreign visitor, with all nationals of all participating states. The democratic institutional form of
the union has to reflect this relation and must hence consist of two legislative institutions or
chambers, in which respectively the states as well as these states’ nationals are represented,
and both must have equal influence. Only then is the EU truly a cosmopolitan ‘representative
democracy’ (Article 10 TEU).

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4. Evaluating controversies regarding EU democracy and its relation to
member states
This section turns to the five EU constitutional controversies that we identified in the
introduction: suppression of political pluralism (Hungary); the violation of judicial
independence (Poland); controversies of central-level supremacy (Germany); policy
conditionality for bail-outs (Greece); and differentiated integration (Brexit). We use these
controversies essentially as a mirror for the two approaches, and we make an initial assessment
of the way in which the two readings of the EU would approach the issues at stake. We go
beyond presenting the two approaches as simple opposites of each other, and also try to see
whether they can somehow be seen as complementary or part of a continuum. It may well be
that the balance between the two approaches differs according to the controversy. Yet, we
hope to identify a shared logic across the controversies that gives a sharper and more nuanced
insight into the nature of the EU, the relationships that it establishes with the member states,
and the democratic obligations embedded in it. The different readings of the EU also have an
influence over the processes and instruments to be mobilised to address the different
controversies, a dimension that is also included in each of the controversies discussed in this
section.

4.1 Suppression of political pluralism in Hungary
Since Viktor Orbán, leader of the Hungarian right-wing party Fidesz, became prime minister for
the second time in 2010, there has been an increasing concern over the suppression of political
pluralism; not only in Hungary, but across the EU (Kelemen and Pech, 2019). The key
conundrum that is raised by the case of Hungary is what the EU and its member states should
do to address a government that removes the conditions that allow its decisions to be
challenged, and that make it almost impossible for the government to be voted out of power
through elections. The measures adopted by the Fidesz-regime – reforming the electoral law,
concentrating all the political power in its own hands, disabling critical media and delegitimising
critical NGOs – all add up to removing the preconditions for the viability of any effective
opposition (Enyedi 2018; Bárd and Pech, 2019). There is little doubt that this undermines the
pluralistic nature of the political process and that it is hard to qualify Hungary as a democracy
these days, which states are supposed to be if they want to join the EU. In fact, Ágh (2015; cf.
V-Dem 2020) has qualified Hungary as an ‘electoral autocracy’, a qualification that seems very
much justified.

While there is little doubt that Hungary would have major trouble to qualify for EU membership
if it were to join today, it is less clear what consequences, if any, the government’s suppression
of political pluralism should have now that the country is already a member state. Article 7 TEU
allows for the suspension of voting rights in the Council, but the activation of that clause is
subject to major institutional hurdles, especially since Hungary can count on at least one other
government (Poland) that is bound to stand with it. Proposals are currently on the table to
withhold EU grants from countries that violate the rule of law and democracy. The question is
whether these sanctions will come with fewer institutional thresholds. Furthermore, one may
ask whether such financial sanctions are appropriate and whether they do indeed hurt the
envisaged members of government or rather affect ‘innocent’ citizens.

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The suppression of political pluralism affects states in their roles as subjects and authors of EU
law. Taking this into account, even though the intergovernmental perspective would oppose
the presence of non-democratic member states in the EU, it would be very reluctant to
interfere in domestic politics. The intergovernmental perspective recognizes that member
states operate by widely divergent procedures and traditions, and that what is perfectly
acceptable for some might be regarded as fundamentally unjust in others. As Bellamy (2013:
508) puts it, referring to Articles 2 and 4 of the TEU, ‘the commitment to democratic values
goes hand in hand with respect for the ways these may have been configured differently by the
various peoples and that as far as possible decisions ought to be taken by each people’.

A high degree of constitutional tolerance implies that intergovernmentalists are inclined to
regard most disagreements as political or even ideological disagreements (in this case, of
‘illiberal democracy’ versus ‘progressive-liberal democracy’), and that they are reluctant to
have them framed as matters of the EU order. The question is then whether the political
position promoted by the Hungarian government is so much beyond the pale that it requires
an intervention from the EU level. Fellow governments ought to tolerate Hungary as one of
their own and one that can potentially cast a decisive vote. At the same time, precisely for this
reason the EU itself and the other member states will demand that all states respect
democracy. Therefore, even from the intergovernmental reading, the suppression of political
pluralism in Hungary could be understood as a challenge that affects the EU as a whole. If the
suspension of democracy in Hungary goes as far as to ‘spoil the well’ of collective EU decision-
making, the activation of Article 7 TEU could also appear as the appropriate response from the
intergovernmentalist point of view. If this would fail to re-align Hungary, and if the EU and the
other member states would be unwilling to compromise with Hungary, some modus vivendi
arrangement could be found. This is uncharted legal and political territory and the precise form
of such an arrangement is as yet unclear, but one could think of a situation in which Hungary
would be tolerated as a rule-taker in the EU as long as its representatives would not play an
active role in EU decision-making. If that would turn out to be impossible as well, then the
ultimate political option would be the forcible expulsion of this member state in the heart of
Europe.

In contrast, once we turn to the cosmopolitan perspective, there is much less ambivalence in
addressing the issue. From this perspective, there is little doubt that the Hungarian
government’s co-optation of the political system poses a problem for EU democracy as a whole.
The EU is organized as a union that is a representative democracy; with states (hosts) and their
nationals (visitors) represented in the Council and the European Parliament, respectively. If
elections held in Hungary cannot be trusted as free, it is no longer evident whether the
Hungarian state, i.e. the collective of Hungarian citizens, is actually represented at the EU level
in the Council. Nor is it clear whether Hungarian nationals are actually represented in their
national parliament or the European parliament. What is more, the tinkering with Hungarian
democracy also affects the reliability of the rights that other member states’ nationals are
supposed to have protected for them by the Hungarian government.

In consequence, from the cosmopolitan perspective, an intervention from European
institutions that protects democracy in Hungary from the Hungarian government is not only
legitimate, but necessary. As states are also co-authors of cosmopolitan law, violations of
democratic processes in one member state are inherently violations of EU democracy. In
practical terms, the cosmopolitan perspective would address the Hungarian challenge by not

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