Multiple Sovereignty in the EU: On the Differentiated Semantics and Structures of European Law and Politics

Chapter 1
Multiple Sovereignty in the EU: On the Differentiated Semantics and Structures of European Law and Politics

In this chapter, I focus on sovereignty and constitutionalism in the context of the Europeanization of the nation states, their politics and legal systems.1 The paradox of divided sovereignty and the European Union’s differentiated constitutional domain are used as examples of profound semantic changes in the sovereignty discourse in contemporary society. Nevertheless, European post-national constitutionalism shows that political and legal institutions of the sovereign nation state continue to operate in a supranational and transnational world. Instead of sidelining those institutions and replacing them with purely supranational forms of governance, the self-constitution of European polity proceeds by introducing the concepts of divided sovereignty and internalizing state sovereignty as part of systemic operations of EU law and politics.

A Sort of European Prelude: on Sovereign Nations, Constitutional Nationalisms and the Nation States of the EU

The Euro crisis of 2010 revealed vulnerability of the EU’s common currency, this most striking example of supranational limitation of state sovereignty by economic means, and prompted a series of vitriolic media attacks and a revival of extremely strong nationalist resentments among Greeks, Germans and other EU nations.2 The system of European economy and its administrative supranational governance thus became responsible for an avalanche of modern nationalist prejudices, once again proving that modernity evolves as a parallel growth of instrumental rationality and what Max Weber referred to as a ‘new polytheism’ and ‘the coming wars of the gods’.

The acrimonious Belgian constitutional crisis, devolution politics and persisting nationalisms in parts of the United Kingdom, traditional nationalism and recent terrorist campaigns in the Basque country and Corsica also show that the typically modern claim to national sovereignty has not disappeared but often reinvented itself as a politics of identity, self-determination and self-government in the post-national and post-sovereign EU constellation.

The self-limitation of nation state sovereignty within the EU does not necessarily weaken collective aspirations for some level of, if not full, sovereignty over historically and ethnically defined territory. The weakening of state sovereignty is accompanied by a reclamation and redefinition of sovereignty beyond the nation state. Sovereignty and identity politics continues to be an important vehicle of formulating new sets of goals, interests and public demands but also different forms of social and political inclusion and exclusion.

Traditional ethnic and national divisions acquire new importance, force and political or constitutional settlements. For instance, the Act of Autonomy granted significant autonomy, especially in taxation and judicial matters, to Catalonia within the Spanish state in 2006. Following this constitutional reform and the subsequent judgment of the Spanish Constitutional Court in June 2010, which declared a number of the Act’s articles unconstitutional and ruled that there was no legal basis to recognize the Catalans as a nation and no reason for the Catalan language to take precedence over Spanish,3 a million-strong crowd protested in Barcelona in July 2010 calling for even greater autonomy, if not independence for Catalonia. The Euro crisis and its devastating effect on the Spanish economy subsequently increased tensions between the Catalonian and central governments and the tide of both economically and culturally driven nationalism has been translated into the most serious constitutional crisis of the Spanish democratic statehood further escalated by the unofficial referendum of 9th November 2014 and subsequent tensions between the Catalonian and central Spanish governments.4

More examples of the persistence of nationalism and sovereignty politics are easy to find in other parts of the EU. For instance, following a crushing victory in the Hungarian parliamentary election of April 2010, a new conservative nationalist government led by Prime Minister Viktor Orbán, whose Fidesz party won a constitutional supermajority of seats in Parliament (while a right-wing extremist and openly anti-Semitic and anti-Roma party Jobbik managed to attract 17 per cent of the national vote), announced a constitutional revolution and immediately enacted two laws. Surprisingly, these laws did not deal with the colossal economic problems of the country. One act was aimed at strengthening bonds with ethnic Hungarians living abroad by giving them a chance to acquire Hungarian citizenship. The other act declared June 4 – the day in 1920 when the post-war Treaty of Trianon, which ended Hungarian political domination in many parts of the former Habsburg monarchy and decreed that millions of ethnic Hungarians would henceforth live outside the post-1918 Hungarian state, was signed – a ‘day of national remembrance’.

More significantly, this nationalist imagination was a driving force behind the constitution-making project of the Orbán government, resulting in the new constitution of Hungary which was enacted by Parliament in April 2011 and went into force on 1 January 2012 despite fundamental protests by the Hungarian political opposition parties and European political representations and expert bodies.5 The new Hungarian constitution has effectively dismantled republican and liberal achievements of the post-1989 democratic constitutionalism and replaced them with nationalist intuitions and settlement promoting the clientelist authoritarian state.6 Nevertheless, this settlement was approved by the electorate in the 2014 parliamentary election in which Prime Minister Orbán, following the election law change and Parliament’s reconstruction, managed to secure the constitutional majority while the extremist Jobbik party emerged even stronger with 21 per cent of the national.

Sovereignty as Part of European Political and Constitutional Semantics

These national identity politics, old and new, show the paradox of both the inadequacy and persistence of national statehood and sovereignty. Traditional control and the solidarity of a state’s inhabitants are being questioned in the globalized world of which Europeanization is just one of many segmented manifestations. State loyalties, political identities and communal bonds are becoming ever more multiple, loose and fragmented. However, one does not need examples of stateless forms of ethnic nationalisms in the EU, the rhetorical and legal excesses of contemporary Hungarian nationalists, corrupt Greek élites, the German media and angry crowds on European streets and squares to see that political propaganda and economic or legal reasoning based on the notion of state and national sovereignty are strong. Despite the ongoing transformation of international law and statehood in European and global society,7 the semantics of sovereignty persists in both political and legal communication8 and even thrives within the discourse of emerging European post-sovereign constitutionalism.9

Observing the European Court of Justice’s (hereinafter ECJ) historical drive towards the constitutionalization of European law and increasingly diverse national responses to it, one can see emerging patterns of post-sovereign supranational constitutional structures and semantics which, nevertheless, keep drawing on the concept of state sovereignty. Political and legal conflicts and debates in the EU, especially those following post-Maastricht Treaty and post-Amsterdam Treaty integration and enlargement,10 the process of constitution-making and eventually the ratification of the Lisbon Treaty,11 show that the concept of state and constitutional sovereignty remains highly popular12 among citizens, peoples, politicians, civil servants and judges living and working in the European post-national and post-sovereign constellation.13 Political leaders and senior judges also increasingly speak out against the idea of a supranational EU limiting its Member States in some kind of federal or other state-like constitutional settlement.14

The tirelessly discussed democratic deficit15 of the Union and potential risks attached to the erosion of the democratic legitimacy of Member States cannot easily be countered by ideas of the governance-based post-sovereign and post-constituent supranational European polity. As regards the EU’s Member States and their state sovereignty, in the United Kingdom, for instance, it is not only the tabloids blaming Brussels for all the ills of the British Isles that invoke the special need to defend state sovereignty against the supranational power of the EU. Parliamentary sovereignty, its exercise and democratic constitution are major issues of electoral campaigns, often internally dividing both government and opposition. In parliamentary debates, the issue of sovereignty is increasingly raised whenever it comes to matters of European integration, foreign policy, immigration, defence, judicial independence and other topics associated with the territorial nation state.16

In German constitutional debates reflecting on the process of European integration, the Bundesverfassungsgericht (German Federal Constitutional Court, hereinafter BVerfG) has famously and repeatedly ruled that constitutional sovereignty and the rights of German citizens take precedence over European law and thus established the divided sovereignty doctrine. In its classic and endlessly discussed Maastricht judgment,17 the Court controversially stated:

If the peoples of the individual States (as is true at present) convey democratic legitimation via the national parliaments, then limits are imposed, by the principle of democracy, on an extension of the functions and powers of the European Communities. State power in each of the States emanates from the people of that State. The States require sufficient areas of significant responsibility of their own, areas in which the people of the State concerned may develop and express itself within a process of forming political will which it legitimates and controls, in order to give legal expression to those matters which concern that people on a relatively homogenous basis spiritually, socially, and politically.18

Using the ‘no demos thesis’, the BVerfG argued in favour of the complainants, four members of the European Parliament from the Green Party and a high-ranking civil servant of the European Commission, that the ECJ, due to its ultimate lack of democratic legitimacy, cannot possess the jurisdictional authority to limit national judicial and constitutional authority.19 Because of the non-existence of a European demos, constitutional sovereignty of Germany as the EU Member State must be protected by its system of constitutional justice.20

Despite the fact that the judgment echoed Hermann Heller’s idea of constitutional democracy and popular sovereignty emanating from social homogeneity,21 the Court was criticized for promoting the pre-political notion of a nation.22 However, the BVerfG did not treat the sovereign nation state as an absolute organization and an existential reservoir of political values and principles. It, rather, considered it an organization and instrument and guarantee of the democratic selfhood, self-rule, welfare generated by social solidarity and popular government23 – something the Court summarized in its recent Lisbon Judgment in the following words:

Within the order of the Basic Law, the structural principles of the state laid down in Article 20 of the Basic Law, i.e. democracy, the rule of law, the principle of the social state, the republic, the federal state, as well as the substance of elementary fundamental rights indispensable for the respect of human dignity are, in any case, not amenable to any amendment because of their fundamental quality.24

In the German context, the constitutional sovereignty argument was a response to the progressive political and legal integration of the EU in the 1990s.25 The Lisbon Judgment of the BVerfG refers to the state as a democratic primary space and, in the classical dualist view of international law applied to the EU,26 states that ‘the Member States are the constituted primary political area of their respective polities, the European Union has secondary, i.e. delegated, responsibility for the tasks conferred on it’.27

Reflecting on the growing tension between the democratically legitimate and representative bodies of Member States and the primarily technocratic and expert-driven legitimacy of the administration and justice of the EU,28 the drafters of the Lisbon Treaty explicitly recognized different forms of constitutional settlement, national identities and state sovereignty in Article 4(2) which reads:

The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.29

The article protects the constitutional identity of Member States and thus legally confirms what legal theorists have been describing as a state of constitutional, legal and political pluralism and the end of the EU law’s absolute primacy doctrine.30 Furthermore, it potentially offers an argumentative tool to protect and even reclaim sovereign operations of Member States of the post-sovereign supranational EU.

A Brief History of Sovereignty in New Member States of the Enlarged EU

Since the communist regime’s fall in 1989, constitutional developments in post-communist countries may be summarized as a gradual shift from simple interpretations to more complex doctrines and jurisprudence of constitutional sovereignty and statehood in the post-sovereign EU constellations.31

Early constitutional and political transformations were typical of regaining, rebuilding and legitimizing the sovereign constitutional and democratic state, yet the same process was instrumental for one of the most fundamental goals, namely accession to the EU.32 These parallel processes of constitution-making reconstituting state sovereignty and EU integration limiting exactly this reconstituted sovereignty and using it as a primary vehicle of entering the exclusive club of EU Member States have been extensively analysed by legal and political scholars in the past two decades.33

Similarly, early constitutional arguments and deliberations on the supremacy of EU law and their effect on pre-accession candidate states of Central and Eastern Europe were the subject of numerous studies in constitutional theory and EU law.34 Technical uses of constitutional sovereignty generally facilitated the accession of post-communist states to the EU, yet they also highlighted a more general problem of democratic legitimacy and accountability vis-à-vis these supranational integration processes. Constitutional bodies of different countries, especially constitutional courts, thus gradually adopted the post-accession doctrine of divided sovereignty and Kompetenz der Kompetenz reflecting on the supremacy of democratically legitimized national legal systems.35

A good example of the early semantics of sovereignty in the post-sovereign EU legal and political structures are the Polish Trybunał Konstytucyjny’s (Constitutional Tribunal, hereinafter TK) Accession Treaty judgment of 200536 and the Czech Ústavní soud‘s (Constitutional Court of the Czech Republic, hereinafter ÚS) Sugar Quota III judgment37 from March 2006. In the Czech Sugar Quota III case, the conservative opposition MPs argued that the EU regulation of the sugar market amounted to the violation of the right to free commerce activities. The Court declared the national regulation void on procedural grounds and basically reiterated the BVerfG’s position regarding the delegation of powers and the relationship between Member State constitutions and EU law in the following words:

… the conditional nature of the delegation of these powers is manifested on two planes: the formal and the substantive plane. The first of these planes concerns the power attributes of state sovereignty itself, the second plane concerns the substantive component of the exercise of state power. In other words, the delegation of a part of the powers of national organs may persist only so long as these powers are exercised in a manner that is compatible with the preservation of the foundations of state sovereignty of the Czech Republic, and in a manner which does not threaten the very essence of the substantive law-based state.38

The Court also acknowledged ‘a definite principle of constitutional self-restraint’39 regarding economic measures flowing from the EU policies and the case law of the ECJ. Due to this self-restraint in economic matters, the Court refused to review the EU law-based sugar quota regulations.40 Repeating the BVerfG’s so long as (Solange) formula in the Czech context,41 the Court, nevertheless, specifically recalled Article 9(2) of the Czech Constitution protecting the substantive core of the democratic state which is considered unchangeable by any constitutional amendments and laws.

Another example of dealing with EU law challenges to the national constitutions is the Polish TK’s judgment in the European Arrest Warrant case related to internal sovereignty of the state and its obligation to protect the state’s citizens.42 The Tribunal was asked to decide upon the surrender of a Polish citizen to the Netherlands for the purpose of prosecution using Article 607t of the Code of Criminal Procedure incorporating the Arrest Warrant to the Polish legal system. The Tribunal ruled that ‘surrender’ is of the same substance like ‘extradition’ and, because extradition of Polish nationals was prohibited by the constitution (Article 55 of the Constitution), the Article was declared unconstitutional. The general obligation to interpret national law in conformity with EU law did not apply in this case where it could determine the introduction or aggravation of criminal liability.43 Nevertheless, on the basis of Poland’s commitment to the EU, the article’s annulment was postponed by the Tribunal for the period of 18 months during which the Polish constitution was amended to accommodate the European Arrest Warrant in the national system of positive law. It is noteworthy that the amendment was proposed by the TK itself.44

The adopted doctrine of divided sovereignty was further elaborated by the ÚS in its Lisbon Treaty judgments. In the Lisbon I Judgment, the judges stated that ‘today sovereignty can no longer be understood absolutely; sovereignty is more a practical matter’.45 Sovereignty, therefore, is not an existential matter of the either, or choice. Instead of theorizing sovereignty as a rigid legal or political concept, the Court considers sovereignty a practical concept opening the possibility for states to be active players and negotiators at international and global level of political and legal interdependence and networking.46 This is a profound shift from political and constitutional essentialism to the pragmatist concept of sovereignty as a technique enhancing operative power of states in global legal and political settings and making them more flexible and adaptable to the emergence of supranational and transnational legal and political networks.47

The Court also makes a lengthy comment on state sovereignty and globalization in its judgments when it states:

The global scene can no longer be seen only as a world of isolated states. It is generally accepted that the state and its sovereignty are undergoing change, and that no state is such a unitary, separate organization as classical theories assumed in the past. An international political system is being created in the global scale that lacks institutionalized rules of its own self-government, such as the international system created by sovereign states had until now. It is an existential interest of the integrating European civilization to appear in global competition as an important and respected force. These processes quite clearly demonstrate that the sovereign legitimate state power must necessarily observe the ongoing developmental trends and attempt to approach them, understand them, and gradually subject this spontaneous globalization process, lacking hierarchical organization, to the order of democratic legitimacy.48

This conclusion and emphasis on efficient and principled governance beyond the nation state in global society49 is different from, for instance, the BVerfG’s Lisbon Judgment which mainly highlights the precondition of sovereign statehood50 and reiterates the old task of the EU to keep peace in Europe and to strengthen the possibilities of policy-making by joint coordinated action.51 Indeed, the BVerfG referred to the Lisbon I Judgment of the ÚS52 and its reserved power to review whether legal instruments of the EU institutions remain within the limits of the sovereign powers conferred on them. However, the BVerfG actually has recursively referred to its so long as (Solange) doctrine formulated several decades ago. Invoking ‘the obligation under European law to respect the constituent power of the Member States as the masters of the Treaties’,53 the BVerfG effectively reiterated the impossibility of the ECJ to claim the Kompetenz der Kompetenz to unilaterally determine whether the principle of enumerated powers has been respected.

Unlike the BVerfG’s Lisbon Judgment,54 the ÚS engaged in more profound consideration of European and national legal and political developments as coeval and mutually intertwined processes. Where the German Court separates European integration and national democracy,55

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