Jean Monnet Center at NYU School of Law


1. The Reasons for Community Europe's Dysfunctions

These reasons, we feel, lie in the twofold logic which presided over the functioning of the three Communities from the outset. On the one hand, these Communities, each founded by a treaty, constitute international organisations in the classical sense of the term in public international law. The logic governing such organisations is an intergovernmental, or better-stated, inter-state, logic. It means that it is the sovereign states that are the masters of the game and that there is no point in talking about democracy without such institutions, since the only legitimacy that counts is that of the states and their sovereign equality.

Yet, simultaneously parallel to this logic, there is another one at work in the Communities: a logic of integration, or, if you wish, a supranational logic. This is expressed in 1) the institution of the Commission, 2) the possibility given to the Community authorities (Commission and Council) to create derived law that may, in the case of the Regulation, have full direct effect, 3) the creation of a Court of Justice, which, through its case law, has extended the possibility for all of the derived law to have direct effect, by asserting the primacy of Community law over the whole of national law. To this should be added the existence of a parliament elected by direct universal suffrage, whose powers have been enhanced by the various treaties that have come along to revise the original ones.

The result, as the Community construction has evolved, has been great confusion about determining who holds ultimate power in the Community: the Council, i.e., the state organ; the Commission, the supranational organ; the European Parliament; or the Court of Justice itself? The breakdown of powers between the states and the Community is another area of confusion that has ever been present as it has never been clearly defined but simply left up to the case law of the ECJ, namely a body that has actually been given the mission of defending the Community's supranational character.

Hence the accusations of opacity of decisions and of democratic deficit made to the institutions, to mention only these reproaches. It will, at this point, be noted that the reproach related to the democratic deficit implies that the Community (and beyond it, the Union) is regarded as something different from a mere international organisation. The United Nations, for instance, have never been reproached with suffering from a democratic deficit. They may have been accused of the obsolete composition, in some eyes, of the Security Council, but never, to our knowledge, have they been subject to criticisms about democracy, the separation of powers, or the rule of law. The UN functions on the logic of an international organisation, viz., the inter-state logic.

But if, by contrast, democratic deficit is talked of in the case of the Union, it is necessarily in relation to Union citizens. It supposes that the ultimate basis of the legitimacy of the institution being talked of is the people, the people of the Union, the people who are, in democratic theory, sovereign, taking decisions either by themselves or through their representatives, and controlling the executive. But the supremacy of the democratic logic over the inter-state logic is not organised by the treaties, which, at least in their initial version, give supremacy to the body, the Council, which represents the inter-state logic. And the more the Community construction advances, in other words, the more the elements of integration progress, the more the distortion between the two logics accumulates, to the point of becoming insupportable. This is what Joschka Fischer clearly sees when he says that:

A tension has emerged between the communitarisation of economy and currency on the one hand, and the lack of political and democratic structures on the other ... (p. 6).

The simple solution-in logical terms, although by no means in political terms-to these problems would be to set up a federal state, which would allow the antagonism between these two logics to be transcended, and to set up the democratic institutions and a state based on rule of law: a parliament endowed with genuine legislative powers, a responsible executive, independent and impartial judicial institutions, with everything being based on a constitution which includes a human rights charter. But it is just this simple solution that the German minister refrains from invoking, since he knows that merely mentioning it would raise such hostility among some EU states as practically to prohibit debate.

That is why he imagines another solution, which he calls a federation rather than a federal state (Föderation, not Bundesstaat). What this solution consists of and whether it is theoretically well-founded and practically achievable is what we shall now attempt to consider.



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