Fairness

This chapter argues that fairness is a fundamental principle of the EU treaties. It means that under the EU treaties obligations of solidarity from one state to another are real. Their rationale, however, is not one of fair distribution. States may seek redress for unfairness on the basis of a conception of corrective, not distributive justice. Solidarity in the European Union is a matter of bilateral corrective justice, which informs the established treaties and gives them meaning. This is not just a moral interpretation, but also a legal interpretation, manifested not only in the practice of the member states but also in the judgments of the Court of Justice. Fairness, understood as justice in cooperation, is the third fundamental principle of the European Union as a Union of Peoples.

A Community of Principle

This chapter examines the question of the relations between EU law and domestic law from the point of view of a political theory of the European Union. It is common to see EU law under ‘federalism’ or under a theory of ‘statism’. These two views are outlined at the start of this chapter by examining various arguments made for them. They are both rejected. The chapter defends a rival view, the ‘internationalist’ reading of the EU, according to which it is a branch of the law of nations. A careful look at the EU treaties and the case law of the Court of Justice of the EU shows that the EU endorses an internationalist model based on equality and reciprocity. The EU does not replace the relation between citizens and political power. It does not establish a new constitutional law that replaces the national ones. It is a new way of organizing the relations between the various member states whose equality it fully respects. The coherence of European Union law is therefore not provided by uniformity imposed by a single master or constitutional rule, but is given by the political coordination of the laws of the member states achieved under the treaties. Coherence is achieved because the member states have adopted similar, although not identical, constitutional principles.

Incorporation

This chapter shows how national courts receive European Union (EU) law by way of dualism in the same way they receive international law. From the member states’ point of view EU law is not the law of a new jurisdiction but the law of an international legal order. Incorporation is not a simple transfer. Member state courts incorporate EU law through three structural principles: ‘conditional primacy’, ‘institutional tolerance’, and ‘integrity’. These principles are uniquely relevant to the transnational nature of EU law. The member states remain independent political communities. Integrity, thus, applies to EU law on the basis that the EU is a community of communities of principle. The ideals of a community of principle apply to the EU only when it is seen as a union of peoples that come together on the basis of the law of nations. The practical or deliberative understanding of law provides an account of the relationship between domestic and EU law without paradox.

Dualism

This chapter discusses the general relationship of EU law with domestic law. The positivist account of law produces two paradoxical accounts of EU law. The first account is the theory of European ‘monism’, supposing that the EU is the foundation of all law in the member states. The second is ‘radical pluralism’ which says that there are no legal rules applying to the relations between EU law and domestic law. They are both mistaken, because they are both based on a picture of law as a hierarchy or ‘system’ of rules created by a formal doctrine of legal validity. Under the positivist view, inspired by Kelsen and Hart, all legal ‘systems’ must compete for supremacy of their ‘basic norm’ or ‘rule of recognition’. In this sense EU law must compete with domestic law. Legal positivism is false and must be rejected. Dualism, by contrast, relies on the rival theory of law which says that law is a matter of substantive moral judgment. It has no need for a single ‘ultimate’ rule or fact at its foundation. In this analysis, domestic law and international law do not compete because they apply to distinct political questions. The first is an answer to the problems of jurisdiction and the second is the answer to the relations among states. Dualism is the best legal interpretation of the relations between EU law and domestic law.

Borders and Legitimacy

How do borders affect political legitimacy? Some ‘globalist’ views believe that borders are morally illegitimate. By contrast, ‘political’ views believe that state borders and political institutions create a morally significant distinction between fellow citizens and others. This chapter argues that shared political agency within self-governing states has moral value, such that ignoring it is an act of ethically unacceptable paternalism. An independent political community that meets basic tests of constitutional justice is a ‘normative people’ with its own moral standing, which creates moral duties of respect. States and their borders play a unique role for political legitimacy: they create stable relations of reciprocity and equal citizenship that can only exist within the framework of a political community organized under the rule of a lawful jurisdiction.

An Unfair Union?

Is the Eurozone fair? Since the member states jointly created a structurally flawed Eurozone, they remain jointly responsible for the asymmetric risks they created for the disadvantaged members. When the crisis caused important economic and social losses to the disadvantaged states, all the other states as a whole had a moral obligation to provide redress. The financial assistance programmes can be reasonably seen as the expression of a new form of solidarity generated by European integration and based on the idea of justice in cooperation. This kind of solidarity, however, is transnational, not constitutional and has its origins in corrective, not distributive justice. It is the result of states cooperating, not of citizens setting up common political institutions.

The Jurisprudence of Integration

This chapter introduces the central legal and political interpretations of the European Union (EU). The Court of Justice of the European Union (CJEU) suggests a federalist legal account when it speaks of EU law as a ‘new legal order’ and as ‘autonomous’ from international law and the law of the member states. This doctrine has met with resistance by the courts of the member states, which have refused to apply EU law without reference to their domestic constitution. The courts’ views can be seen as either a ‘constitutional’ approach, which we find in Neil MacCormick’s ‘pluralism’ under international law, or in the ‘pluralism’ defended by Mattias Kumm, Neil Walker, and others. But the general legal architecture of the EU is not only a theoretical but also a political problem. These legal interpretations correspond to rival political approaches, namely ‘federalism’, ‘statism’, and a new view proposed in this book ‘internationalism’. The most challenging political view of the EU, articulated for example by the historian Noel Malcolm, believes that it is actually a serious risk to self-government and democracy. Any legal and political interpretation of the treaties supporting the legitimacy of the EU requires that we have an effective response to this democratic challenge. Can the EU be democratically legitimate?

Accountability

Accountability is the most fundamental principle of the European Union. By offering practical assurance that agreements will be enforced, that the Union’s institutions will not go beyond their enumerated powers and the division of competences will be respected by all, the Union’s legal framework makes long-term multilateral cooperation possible. However, the European Union does not follow the pattern of accountability through the separation of powers in the way of a federal state. The distinction between the legislature, the executive, and the judiciary does not work in the same way because of the role played by the member states. Many important decisions are made by the states’ institutions, not the Union’s institutions. The institutional architecture of the European Union is thus unfamiliar. It is impossible to compare it to that of a constitution. The European Union is divided between the institutions of the EU and the institutions of the member states. The fragmentation of accountability in the European Union among the EU’s institutions and the various member states (in various combinations, e.g. the members of the Eurozone) is a principled position. It does not mean that the relations between the states and the Union are unregulated or merely transactional.

Democracy and Reform

The most common criticism of the European Union is that it undermines domestic democracy. This chapter starts with a discussion of the sophisticated arguments by the German Constitutional Court on a required ‘identity’ of a state, which should not be undermined by EU institutions. This argument is rejected because it relies on an erroneous conception of democracy as the manifestation of ‘collective will’. The analogy between the individual person and a collective person is misleading. What makes democracy valuable is the fact that it recognizes the equal standing of all members of the political community on the basis of institutions. This is shown, for example, in the interesting arguments for ‘demoicracy’ offered by Nicolaïdis and Cheneval. This view of democracy may show that it is entirely compatible with sharing power in the EU. Democracy embodies the ethical relationship of equal citizenship. Does the EU threaten that? This chapter examines four dimensions of that question in detail: the powers of the EU executive, the role of the EU judiciary, the reach of the EU legislature and the limits that EU places on constitution-making in the member states. Under the doctrine of dualism, however, nothing in the operation of the EU affects in principle domestic constitution-making. The European Union is ultimately subject to the constitutional rules of the member states. It is no threat to domestic democracy.

Liberty

The principle of liberty connects member states directly with ordinary people. It lifts borders for the benefit of European citizens and others. Before the European Union was created, European states assumed that persons were either national citizens or complete strangers. A state was free to discriminate against all non-citizens. ‘European liberty’ eliminates those disabilities by removing all barriers as well as any discrimination for those who move from one member state to another. This has a uniquely liberating effect, since it enables persons to move, reside, study and work throughout the territory of the European Union without administrative obstacles or fear of a change in circumstances. The principle of liberty for all citizens of the member states is one of the most significant novelties of the European Union.