No. 8




Sovereignty in the European Union

18 December 2003


RiTo No. 8, 2003

  • Mario Rosentau

    Mario Rosentau

    University of Tartu, Lecturer of Comparative Jurisprudence

The European Union is an association of democratic nation-states based on the rule of law. We should ask: 1) to what extent are the national, democratic and legal properties transferable to unions of states? 2) which properties must be transferred? 3) is this a spontaneous process, an inevitable result of union, or must there be additional efforts? 4) what might the influence on nation-states be – stimulating or repressive, preservative or destructive?

The traditional definition of national sovereignty as a state’s freedom to do as it chooses in domestic and foreign affairs without restriction, “unlimited and indivisible,” has become obsolete. Therefore we need concepts that would more accurately describe the interests of nation-state members of the EU both inside and outside the Union. Several of these concepts might be: the right to national self-determination, its feasibility of implementing this right as a nation-state, and free political will of a nation-state.

The EU can be treated according to the “roof” or “home” principles. “Home” means that all that is national is also European and all that is European is common to all peoples: the EU represents a collegium of nation-states, and not a intergovernmental or supranational “roof.” The EU is a new type of arrangement when it comes to interstate relations – united power of the nations. An ordinary federation, which is comprised of a central authority and part-owner subjects with limited purview, is not a suitable model for a Europe divisible into national territories. The goal of “constitutionalizing” the EU is to create a synergistic association which not only would grow Europe as a whole but improve individual member states’ effectiveness, power and influence as well. Nation-states should stand for two interests in the EU: 1) preserving free political will in the Union and 2) increasing influence outside the Union through integration. In this connection, the writer analyzes the basic principles and separation of powers of the EU outlined in the draft constitutional project. The analysis is complemented by a description of the main factors threatening nation-states’ sovereignty: large states versus smaller ones, the “edge of empire” syndrome, the power of governments, “integrated Euro-bureaucracy”, “Euro information bureau static,” degeneration of political bargaining, finally, the EU versus the nation-state.

Can the independent foreign policy activity of member states be seen as the actions of the Union? The writer responds with an analogy from diplomacy: the words and actions of a diplomat are the words and actions of his foreign ministry as long as the ministry does not explicitly distance itself from them. Similarly, why couldn’t it be that a nation-state’s foreign policy is a part of the Union’s foreign policy as long as the Union does not reject it formally? Even if rejected, the member state will retain the opportunity to consider whether to conform to the Union’s position or not. It acts as an independent and responsible subject. The other examples of multi-subject activity are integrated and differentiated legislation, enhanced cooperation and the EMU.

The EU requires hierarchical constitutional law that would consist of a tough kernel and an institutional safety belt. Such a constitution would be flexible but unbreakable.

The pessimistic assessment: the draft constitutional agreement is not rotten to the core, but certain formulations in the planned constitutional arrangement give the lie to federative tendencies. The greatest danger is that the constitution may be interpreted in the future in a federalist spirit.

The optimistic assessment: through a synergistic, multi-subject EU, Europe’s smaller states will have the opportunity to achieve in certain affairs the status of a “large state.”

Full article in Estonian