FECL 49 (December 1996/January 1997):The following text is a contribution to the conference "Revising the Maastricht Treaty and the concerns of the NGOs", held in Amsterdam, on 22 to 26 January 1997. The author, Professor Herman Meijers, is the Chairman of the Utrecht based "Standing Committee of Experts on International Immigration, Refugee and Criminal Law".
At this moment, in and around Amsterdam, the delegations of the fifteen member states of the European Union - are trying to amend the Maastricht Treaty on European Union of 1992. In so doing they are applying Article N, second paragraph, of the Maastricht Treaty. In their speculations and comments, journalists attracted by the Intergovernmental Conference (IGC), to a large extent concentrate on two particular issues before this Conference.
The first issue is the power politics between the existing fifteen member states, in particular when these politics are about the relations with the world outside the Union - relations that are incorporated under Title V of the present Maastricht Treaty. The second set of issues that interest newspapers and television comments are about money, in particular about the prospects of the so-called Monetary Union and its future common currency, the Euro.
However, the most important common value all the member states adhere to, democracy, is on the whole not part of the picture.
Power politics and money are the central issues of the previous century. But democracy, as we now know it, is a comparatively recent phenomenon both in some of the large and some of the small member states that constitute the Union at present.
I take the liberty to mention in passing the following: the rise of the nation-state and of national democracies in the past two centuries, the values and divisions of power on which national democracies were or are based until recently, the recent internationalisation of society - particularly in Europe - and the threat this internationalisation of Europe may possibly pose to the values of democracy adhered to by the citizens of this part of the world.
I also wish to remind of the fact that the words "democracy" and "democratic" figure prominently in the text of the Maastricht Treaty, for instance in the preamble, in Article F.1 and in Article J.2. The word "democracy" also figures prominently in the so-called second Dublin Draft of 1996, styled as: "A general outline for a draft revision of the treaties". The word appears in Chapter 1 of that draft and in particular in its Article F.1 in which "the general principles underlying the Union" are reformulated.
However, neither the text presently in force, nor the said Dublin Draft define these basic terms: "democracy" and "democratic".
The idea and phenomenon of national democracies arose during the French revolution and the Napoleonic wars, and the names of Tom Paine and Jean Jacques Rousseau are linked with it. Between 1815 and 1945 the concepts of the nation-state, of nationality and of national sovereignty developed. In and for the Western world the idea became accepted (and in fact vigorously promoted) that "the people", that is the citizens of the national entity to which one belonged, had to be protected in their rights by the sovereign state.
Lyrical songs were composed stating that God should save the king of one particular country, or that nothing in life was superior to ones own state: "Deutschland, Deutschland über alles", or comparable silly songs sung in the Netherlands or in any other country of Europe. Nationalism became more than an accepted value. And, within the nation state, in the period mentioned, democracy developed to high levels and also came to its lowest ebb.
However, at present we are witnessing, particularly in this same European area, the internationalisation of society. National powers of the state are slowly but steadily taken over by international constructions of private law conglomerates constructed by civil law enterprises. But also public international law constructions take over powers from the State. We in Europe often discuss two examples - among many others - the constructions of "Schengen" and the "European Union". These two examples of new subjects of international law are taking over the power to decide on critical questions of migration law and of criminal law from the national states co-operating in Europe. These two fields of law are of course the touchstones par excellence for this most important question: does democracy exist or not in the society concerned?
Now what is meant by the word "democracy"? The Standing Committee of Experts on International Immigration, Refugee and Criminal Law uses three criteria for an international organisation or a state to qualify as "democratic". These criteria are probably acceptable to all EU member states as conditiones sine qua non. They are:
1. Openness of decision-making in preparing and formulating rules of law;
2. No making of binding rules of law without the clear assent of a parliament chosen by all citizens to whom the law will apply;
3. Control by an independent Court, of the application and interpretation of the rules just mentioned.
Any authoritarian institution, international or national, rejects these three criteria. Such an authoritarian institution will argue that all real and effective power has always been exercised in secret, by so-called "Privy Councils", by - as the Germans put it - Geheimräte (literally: "Secret councils"), who are the most important persons in the country. From an authoritarian point of view, parliamentary debates take too much time. And a truly independent Court, and in particular an international - and thus superior - Court, spoils the unity of decision-making and brakes the speed of executive action.
In anti-democratic environments it is always the executive branch of government, and not the parliament or a Court, that takes the final decisions. In newly born, or newly reborn national or international societies - societies that cannot count on long established democratic traditions, the transfer of powers and competencies to the executive branch, to the detriment of the powers of parliaments and of independent Courts, always threatens to undermine democracy. Democracy is based on a division of powers, as Montesquieu pointed out back in 1748.
That is the threat which the European Union is presently facing: now that central fields of law, central competencies of national democracies, of which I already mentioned immigration law and criminal law, are being transferred to international institutions embodying an international European society, this transfer may well be realised by the ministers and civil servants belonging to the executive branch - leaving aside parliaments like the European Parliament and Judges exercising their competencies within the European Court of Justice. If so, the competencies of the national parliaments and the national courts have in fact disappeared, without the compensations so much needed for the maintenance and enforcement of democracy in Europe: that is, the transfer of as much powers as possible to the European Parliament and to the European Court of Justice. Hannah Ahrendt writing about authoritarian regimes in general after World War II described - within the national context - the hidden temptations of quick and effective solutions, particularly for unstable and new societies. "La tentation autoritaire" was a French expression used in discussions around Ahrendts publications.
Within the slowly arising constructions of very diverse and very recent European cooperations the temptation for quick and effective solutions of intricate international problems cannot be ignored. Such solutions, perhaps valuable during unavoidable transitional periods, threaten the three bases of democracy within the existing national societies that transfer national competencies to European Councils of Ministers and to their civil servants, as long as such international Councils are not under control of parliaments and Courts exercising their competencies on the same - that is the international - level. That is "la tentation autoritaire européen".
For that reason, our Standing Committee has directed proposals for amendments of the Treaty on European Union mainly towards reinforcing the possibility to preserve the most distinguishing features of democratic decision-making for Europe *). The proposed amendments focus on the decisive criteria for democracy I mentioned before. As far as European law is concerned, these criteria are:
- openness in the making of European law;
- more powers for the European Parliament; and
- decisively larger competencies for the European Court of Justice.
May the Intergovernmental Conference, presently trying to amend the Treaty on European Union, avoid "la tentation autoritaire" mentioned above.
Professor Herman Meijers,
Chairman of the Standing Committee of Experts
on International Migration, Refugee and Criminal Law (Utrecht)
*) The document Proposals for the amendment of the Maastricht Treaty on European Union at the IGC in 1996 (Utrecht, March 1995), is available from: FORUM - Commissie Meijers, Postbus 201, NL-3500 AE Utrecht; Tel: +31/30 2974321, Fax: +31/30 2960050. See also in FECL No.33: "Dutch experts make proposals to amend Maastricht Treaty".