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Download File Toward a European Bund The Constitutionalism Deficit of Integration and How to Fix It Axel Domeyer Submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy in the Graduate School of Arts and Sciences COLUMBIA UNIVERSITY 2013 © 2012 Axel Domeyer All rights reserved ABSTRACT Toward a European Bund: The Constitutionalism Deficit of Integration and How to Fix It Axel Domeyer This dissertation examines the nature of the European political and legal order and evaluates it in light of the principles of liberal and democratic constitutionalism. The EU, I argue, has features of both an international organization and a heterarchical federation, or Bund, in which neither the units nor the center are sovereign and the member state peoples retain their independent political existence. Due to its peculiar hybrid character, the status quo has a constitutionalism deficit: enforcement of formal competence limits is weak, the legislative process is undemocratic, and the European Court of Justice wields too much unchecked power to elaborate the content of basic rights. Adequate reform would eliminate residual features of the international organization model and establish a proper Bund. The dissertation examines how this political form differs from a federal state and provides normative reasons to prefer a heterarchical solution. I further contend that in a possible future Bund, domestic parliaments should have a stronger oversight role. The European Parliament might then still have a supporting function, but direct election would no longer be useful and indeed counterproductive. Last, the dissertation argues that if a federal compact were agreed upon, the best ratification method would be to hold national conventions, similar to the state assemblies that ratified the US constitution. This procedure is superior to both a national referendum and a vote of the domestic parliament. Table of Contents List of Abbreviations.........................................................................................................................................ii Acknowledgments..............................................................................................................................................iii Introduction........................................................................................................................................................1 Part I: The Constitutionalism Deficit Chapter 1: Constitutionalism and Layered Political Structures.................................................................24 Chapter 2: The Hybrid Status Quo................................................................................................................77 Chapter 3: The Constitutionalism Deficit..................................................................................................105 Part II: How to Fix It Chapter 4: The Case for a European Bund................................................................................................152 Chapter 5: Democratic Legislation in a European Bund.........................................................................197 Chapter 6: Adopting the Federal Compact (with Jeffrey Lenowitz)......................................................230 Conclusion.......................................................................................................................................................254 Bibliography.....................................................................................................................................................258 i List of Abbreviations CAP Common Agricultural Policy CFSP Common Foreign and Security Policy EC European Community ECHR European Convention on Human Rights ECtHR European Court of Human Rights ECJ European Court of Justice ECSC European Coal and Steel Community EEC European Economic Community EFSF European Financial Stability Facility EU European Union EURATOM European Atomic Energy Community ESM European Stability Mechanism FCC Federal Constitutional Court ICSID International Centre for Settlement of Investment Disputes IMF International Monetary Fund JHA Justice and Home Affairs NAFTA North American Free Trade Association OLP Ordinary Legislative Procedure OMC Open Method of Coordination QMV Qualified Majority Voting SEA Single European Act SGP Stability and Growth Pact TCE Treaty establishing a Constitution for Europe TEU Treaty on European Union TFEU Treaty on the Functioning of the European Union UDHR Universal Declaration of Human Rights UN United Nations WTO World Trade Organization ii Acknowledgments It has been a tremendous privilege to work with Jean Cohen. Her teaching motivated me to become a political theorist in the first place. She also introduced me to the concept of the Bund and suggested its relevance for European integration. When I gave her drafts to read, which was often, her criticism was always correct (even if it sometimes took me a while to realize that). The faults of this dissertation remain my own, but without Jean it would have been a great deal worse. Many others were likewise generous with their time and provided much helpful advice. Lucy Goodhart offered a British perspective on Europe and knew which crucial articles I had not yet read. Turkuler Isiksel commented on draft chapters long before she even arrived at Columbia, sharing with me her encyclopedic knowledge of the integration process. When I was tempted to use jargon, I thought of David Johnston and tried to refrain from it. His efforts also prevented a lot of bad arguments from appearing on these pages. Katharina Pistor, finally, did her best to help me write a dissertation that is relevant to legal scholars. I furthermore want to acknowledge Michael Doyle and Melissa Schwartzberg for commenting on the earliest manifestations of this project. Jeffrey Lax deserves special credit for imitating various animal sounds in order to dissuade me from overusing the awkward term “demoicracy.” Next I owe thanks to my colleagues and friends in the graduate program at Columbia, in particular Jennifer Hudson, Felix Gerlsbeck, Jeffrey Lenowitz, and Ben Schupmann who made countless intellectual and personal contributions. I am also very grateful to Mary Sammons. She endured the last and worst few months of the writing process, never losing her characteristic sweetness. My largest debt, though, is to my parents who taught me that reading, thinking, and politics are important, and who never spared an expense to make sure I got the best possible education. Axel Domeyer Wilhelmshaven, December 2012 iii Introduction “The Basic Law grants powers to participate and develop a European Union which is designed as an association of sovereign national states (Staatenverbund). The concept of Verbund refers to a close long-term association of states which remain sovereign, an association which exercises public authority on the basis of a treaty, whose fundamental order, however, is subject to the disposal of the member states alone, and in which the peoples of the member states [...] remain the subjects of democratic legitimation.” —Federal Constitutional Court, Lisbon Judgment, 2009.1 “Yet, insofar as European and national law are understood as formally autonomous systems, each of which is originally based on the will of the people [...], such a hier- archy does not follow as a theoretical necessity. […] Rather, the relationship is plural- istic and cooperative.” —Ingolf Pernice.2 In a 2009 landmark decision, the highest German court (FCC) found the Lisbon Treaty compatible with the Basic Law. At the same time, it described the EU as, in essence, an international organiza- tion, whose legal order is subordinate to the constitution of each member state. The judges use the neologism Staatenverbund (association of states) in order to account for the “supranational” ele- ments of the present institutional structure, but the ruling denies the European order the status of a genuine constitution. This doctrine enables the FCC to assert the right to ascertain that individual Union policies conform to the Basic Law. When there is a violation, German state organs will be barred from enforcing the measure in question. Or so, at least, the judges promise. 1 BVerfG, 2 BvE 2/08, headnotes (my translation). 2 Ingolf Pernice, "The Treaty of Lisbon. Multilevel Constitutionalism in Action," Columbia Journal of International Law 15, no. 3 (2009), 383. 2 Most journalistic commentators reacted with praise for the decision.3 But the academic public rejected it almost in unison. The mainstream of scholarship holds that one can no longer under- stand the relationship between domestic and European norms in hierarchical terms. Jurists and political scientists instead advocate a “heterarchical” conception. These authors believe the FCC should have acknowledged the emergence of a novel species of political regime, in which both the domestic and the transnational level have a proper constitution. The relationship between domestic and Union norms, runs the argument, is therefore coequal. From this viewpoint, portraying the European legal order as subordinate to the Basic Law is anachronistic and detrimental to the integ - ration project.4 The tumultuous debate over the Lisbon decision shows that profound disagreement about the nature of the status quo persists. It is not too difficult to explain this fact. The dispute reflects the hybrid form of the EU: while the present institutional structure retains important features of
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