Translation: Dr. Nicola Rowe, Hamburg

13.   A. With the European Union - and even earlier, with the late European Communities - European integration has produced a European model for a new form of community. Four phases of development can be identified, beginning with a specialised supranational organisation which controlled the coal and steel economy (1952). During the second phase, a limited, institutionalised Western European community of states developed (1958 - 1967). Limited to specific areas, it consisted of three supranational organisations which formed an integrated unit of activity and influence. During the third phase, this community was intensified and enlarged several times, growing beyond the concept of restriction to individual economic areas and becoming a general organisation of integration (1967 - 1987). The specialised organisation [Zweckverband] had given rise to an expandable institutional framework from which continuous, all-encompassing integration could proceed. The fourth phase (since the entry into force of the European Single Act in 1987) has been a phase of consolidation and further development of the general organisation of integration [Integrationsverband]. The importance of that organisation is not diminished by the existence of other European institutions, or of institutions to which European states belong (the Council of Europe, the OSCE and the EEA). ^[15]

14.   The European Union is a single, coherent unit with a plural institutional and legal basis. It should not be understood as a simple grouping of discrete units on the basis of substantive law [materiell-rechtlicher Verbund], as a unitary organisation whose component units have fused and become one, or as a structure resting upon different pillars. Rather, it is a composite organisation, represented by various actors, or, more specifically, by compounds of actors (the Communities, with the plurality of their organs) and by individual institutions acting directly for the whole (the organs to which the TEU entrusts particular tasks). The Communities are components of the Union; their founding treaties are part of a single, coherent legal order. As do some of its component parts - the EC, EURATOM and the ECSC - the Union has international legal personality. ^[16]

15.   Particular characteristics distinguish the European Union as a governing entity. These characteristics enable a new category to be developed within the existing taxonomy. The most important characteristic is the Union’s status as a supranational organisation whose purpose is integration [supranationaler Integrationsverband]. Selected partners have come together in a long-term, all-embracing union, recognising that the union has a value in and of itself with regard to the common future they envisage. That future goes well beyond fulfilling the tasks which the Union has been assigned. The Union performs its integrative function primarily by carrying out tasks in the public sphere through the exercise of supranational public power. It also provides the institutional (organisational) framework for formalised and institutionalised intergovernmental co-operation, however, and it provides a territory for the substantive law through which integration is carried out. As a general organisation of integration, the Union also provides an adequate conceptual framework for tasks of all kinds from any political sphere. The Union’s dynamic quality distinguishes it both from traditional kinds of international organisation and from the state. [17]

16.   The European Union’s particular characteristics place it so far beyond the conventional supranational organisation that analysis of the latter is only partly applicable to the former. The Union should, then, be classified under a new kind of state community, which it is appropriate to call a supranational union, and which can be defined as follows: a supranational union is an international organisation founded by several states for the purpose of integration which tends to evolve continuously, which is conceptually open for tasks of every kind, and which accomplishes its integrative function primarily by carrying out a wide variety of tasks in the public sphere itself, by exercising public power in its member states. ^[18]

17.   B. Having established that the European Union represents a new form of organisation, we must now determine its status and legal nature. A supranational union embodies the characteristics of both a supranational organisation and of a confederation of states, yet it is even more than this. It is thus more than merely an international or supranational organisation, more than a confederation, and more than a mere combination of these forms of organisation. ^[19] Some of the European Union’s characteristics are reminiscent of a particular kind of federal state. Yet the European Union is not a state, and it cannot become a state without leaving the organisational form of the supranational union behind. The European Union is a novel, independent, legally distinct form of organisation on the basis of public international law. ^[20]

18.   Public international law mandates the distinction between non-state organisations and states. Based on the principle of the territorial state, the right to self-determination and the legal concept of sovereignty, public international law requires that it be possible conclusively to identify those “natural“ units of accountability [“natürliche” völkerrechtliche Zurechnungseinheiten] (states, in other words) which ipso facto enjoy recognition and all legal positions deriving from that status at public international law. Many vertically interconnected governing entities may co-exist on different geographic scales (local, regional, national, geo-regional, global), but only one may claim statehood at any one time. Only this one will enjoy the advantages which statehood confers: the protection of its existence by public international law, sovereignty, and the power deriving from sovereignty to control all public power exercised on its territory. ^[21] At present, international law does not allow hybrid forms between state and non-state entities; nor will it recognise divided statehood. ^[22] In this strict, predefined scheme of classification, the supranational union should be counted as an international entity. It cannot, therefore, be understood as a state. In contrast to the federal state, the supranational union is based upon the continued voluntary participation and co-operation of the governing entities which it comprises. ^[23] But clear parallels between a supranational union and a state are evident, and these parallels will strengthen as any given union develops. The supranational union’s dual nature as an entity which is not a state but resembles a state has manifold consequences in the fields of law and political theory. ^[24]

19.   The supranational union has developed as a specific form of organisation designed for the transition from the nation-state to the civilisation state [Kulturkreis-Staat]. ^[25] Viewed objectively, this form of organisation is designed to bring nation-states, which are increasingly overwhelmed by globalisation and geo-regionalisation, together, integrating them through a process of integration into a federal unification state [Vereinigungs-Bundesstaat]. This objective purpose does not, however, mean that the supranational union cannot fail. Nonetheless, the supranational union’s dynamism precludes long periods of stagnation. ^[26]

20.   The role of the supranational union does not only consist in fulfilling particular tasks. It is also responsible for bringing its member states together gently and incrementally and, later, for preparing for the the foundation of the unification state, relying on the experience gained during the integration process and alert to the problems which may accompany such a step. ^[27] Yet, while it may lay the groundwork for statehood, the union cannot itself survive that transition. The transition presupposes that every participating state make a declaration valid at public international law concerning the transfer of statehood. ^[28] The rule of law would also require, in the case of most member states, that new constitutions first be enacted. If, like the European Union, a supranational union followed the rule of law, its organs would be obliged to take steps to counter any tendencies among its member states to ignore domestic constitutional provisions. Fears of a “slippery slope” towards a federal European state are groundless for this reason alone. ^[29]

21.   C. (I.-V.) Two central tenets describe the status of the state in a supranational union. First, the state has basic duties of membership that follow directly and necessarily from its participation in a close political community bent upon a common future. These duties exist, then, and must be elaborated by courts and academics, even if they have not been regulated explicitly, clearly and completely in the treaty of union. Some of them may only be regulated on an abstract level via a general principle of loyalty within the union [Unionstreue] (in the case of the European Union, see arts. 10 EC Treaty, 192 EURATOM Treaty, and 86 ECSC Treaty). Specifically, these basic duties of membership include the duty to respect primary and secondary union law, to co-operate with other member states and with the union’s organs, to participate in those organs, and to evince loyalty and solidarity towards the union and other member states. ^[30]

22.   The second key tenet states that state sovereignty is unaffected until such time, if any, as the union is transformed into a geo-regional unification state. Sovereignty is absolute; as conceived by international law, it is inseparable from statehood. It can, therefore, only be transferred as a whole, and as part of a parcel along with statehood, and then only if the transfer is accompanied by member states’ above-mentioned declaration concerning a transfer of statehood. With that declaration, member states cease to be states in terms of public international law, and their organisation of integration loses the quality of a supranational union. Unaffected state sovereignty is, then, a necessary consequence of two coincident factors: first, the retention by fundamental public international law of the basic concept of the exclusively sovereign territorial state; second, the concept of non-statehood which governs supranational union as a form of organisation designed for transition. ^[31]

23.   The state’s unaffected sovereignty means that it retains unlimited public power notwithstanding any “transfer” of sovereign rights. As a “natural” unit of accountability at international law, the state is not - indeed, cannot be - deprived of its control of every kind of public power exercised on its territory. ^[32] Thus, investing the union with sovereign rights can refer neither to a genuine transfer of sovereign rights from the states to the union, nor to a real restriction on member states’ sovereign rights. It is impossible to conceive of any way in which such a scenario could come to pass without challenging the concept of sovereignty. Since sovereignty is the lynchpin of the self-determination of peoples in territorial states, any challenge to this basic concept would challenge the foundations of public international law themselves. While a member state does not have the right to retake all public power on its territory in defiance of the treaty of union, or to allocate that public power anew, it certainly has the legal power [Rechtsmacht] to do so. Sovereign acts undertaken by a member state which breach the treaty of union are legally valid; sovereign acts of the union which, in breach of the treaty, a member state declares null and void lose their validity on that member state’s territory. ^[33]

24.   The state’s unaffected sovereignty also means that it enjoys unlimited legal capacity at public international law, even in those areas which the treaty of union reserves to common or community foreign and defence policy. Notwithstanding the process of integration, then, a member state is still - potentially - an interesting partner for third parties. ^[34] A state also retains an unlimited legal capacity to determine its own organisation. Viewed through the lens of traditional constitutional theory, this means that a state’s pouvoir constituant remains unlimited even in an integrated state. Constitutional law is still valid even where it contravenes union law, and can be validly implemented and enforced. Admittedly, its interpretation must accord as far as possible with union law, and its application can be overridden by countervailing union law. In a non-state supranational union with (sovereign) member organisations, however, no conclusive (absolute) primacy of union law can exist, even where conflict is at its most extreme. Nor can any such primacy be validly established in the founding treaty. ^[35]

25.   Despite the process of integration, ultimate responsibility [Letztverantwortung] ^[36] rests with the state. Like any states, the member states of a supranational union must provide their citizens with the certainty that freedom, security and aid in case of need are provided for. Political theory postulates these demands on the states as the converse of the sovereignty they enjoy. In an integrated state, fulfilling that ultimate responsibility is increasingly restricted: the state no longer fulfills certain tasks itself, but delegates them to the union and to other international institutions, confining itself to participation in those entities’ organs. However, a significant residual component of the state’s ultimate responsibility lies in deciding how and to what extent it will integrate into international and supranational structures, and with whom it might enter into a supranational union. A state must always be able to justify these decisions to its citizens. It is accountable not only for those steps of integration which it has already carried out, but also for those from which it has refrained, and for any resulting failure to cope with the challenges of globalisation and geo-regionalisation. Thus, the ultimate responsibility of the state can also be manifest in the state’s decision to leave one supranational union for another which promises more favourable development, or to found a new supranational union with other states, some of whom may well have been its integration partners in the previous union. This important aspect of ultimate responsibility finds no echo whatsoever in the opinion, currently widespread in Europe, that there can only be one European supranational union, which will end up taking all European states within its compass, and which any European state will have to take as it is for want of alternatives. ^[37]

26.   From the point of view of political theory, every member state has the right to share in the decision-making process where any fundamental change to the union is concerned. It is right, therefore, to continue to require unanimous agreement both for changes to the treaty of union and for the question whether to accept new members, even where the law of treaties would permit other approaches. ^[38] From the point of view of political  theory, the union also needs to be designed according to the the principle of the equality of member states [Grundsatz der mitgliedschaftlichen Gleichheit]. That principle takes substantive (material) equality of member states as its goal, and reflects those states‘ recognition of each other as equal partners in the process of integration. Calls for a right of veto for large member states, or for those states which contribute more to the union financially than they receive in return, should thus be rejected. Unequal representation in the union’s organs, or an unequal weighting of votes are justifiable, however, on the basis of the principle of the equality of union citizens. ^[39]

27.   (VI.) Two of the most delicate problems surrounding the figure of the supranational union involve the secession and expulsion of member states. Addressing these issues at all is a tacit admission that the process of integration is likely to involve not only pleasantness as countries draw closer, but also disappointment and conflict. From the point of view of political theory, solutions are required which enable a legally straightforward, minimally burdensome separation. It is clear from the principle that integration always be voluntary that states must be able to leave the union. The fact that sustainable, long-term integration is predicated upon a sustainable, long-term commitment from every member state points to the same conclusion, as that commitment must be frequently reaffirmed or renewed in a ceaseless, free political process. Moreover, ultimate state responsibility presupposes that a state be able to leave a supranational union. In any case, it would be impossible, from a pragmatic point of view, to keep a state which intends to leave, since that state would be able to use the legal power deriving from its sovereignty to ensure that its membership of the union became imperceptible on its state territory from that point on. ‑ Expulsion must be possible as an extreme measure, used to prevent serious violations of union law within a member state from damaging the union’s credibility as a legal community or, indeed, its efficiency as a governing entity, since damage of that kind would destroy the union’s legitimacy. A community of integration must be able to react, too, if one of its partners turns away from the community’s common fundamental values and ideas. As a sanction, expulsion provides the necessary counterpart to unaffected state sovereignty. ^[40]

28.   While secession by treaty is a legally straightforward solution, it is scarcely likely to be practicable, requiring as it does a unanimous agreement among member states. It is advisable, therefore, for the modalities of secession and expulsion (notice period, form, procedure, political basis, appeals procedure) to be regulated in the treaty of union. The right to leave the union should be guaranteed explicitly, and the competence to expel should be restricted to two instances: a frequent or continuous material breach of the treaty of union, and the departure of one member state from the community’s shared values. ^[41]

29.   The founding treaties of the European Union do not address these issues. The Union is stated to be valid “for an unlimited period” (arts. 51 TEU, 312 EC Treaty, 208 EURATOM Treaty), but this should be understood to mean, not “forever”, but “for an indeterminate period of time”. The treaties’ silence does not offer grounds to infer that their signatories intended to preclude member states from leaving the Union. Instead, the treaties should be interpreted with reference to the general law of treaties. That law is applicable notwithstanding the issue of subsidiarity because the founding treaties make no provision regarding the issues at hand. Technically, secession is equivalent to denunciation of the founding treaty. Expulsion can only be realised as the collective exercise of a right to denounce the founding treaty between the remaining member states and the defaulting state. The Union has no competence to expel members: that competence would need to be explicitly provided for by treaty. ^[42]

30.   The law of treaties offers several possible grounds on which a member state might leave a supranational union. A right of secession on the basis of a material breach of treaty by other member states (art. 60(2) lit. a of the Vienna Convention on the Law of Treaties) is unlikely to be of practical relevance, since member states have recourse only to those measures for which the treaty of union provides (art. 60(4) Vienna Convention, and, for the EU, arts. 292 EC Treaty, 193 EURATOM Treaty and 87 ECSC Treaty). It is possible, nonetheless, to imagine circumstances under which a state might make use of that right. If, for example, the other member states and the union’s organs collectively committed fundamental violations of the treaty, then a dissenting member state might, after fruitless recourse to the prescribed remedies, make use of the right - for example, where the union’s organs, with the other member states’ approval, “compensated” a refusal to accede to new union competences by what was clearly a deliberately “over-generous” interpretation of existing competence provisions. A right of secession on the basis of a fundamental change of circumstances (art. 62 Vienna Convention) will normally fail on the basis that the purpose for which the supranational union was created was to enable a joint response to unforeseen developments like economic crises. If, however, the membership of the union changes unexpectedly (or if expected changes fail to occur) - for example, if a state with which a member state has a particularly close relationship secedes, or is refused membership in defiance of prior expectations -, then a right of secession on the basis of a fundamental change of circumstances may be present. - Generally, however, there will be no need for a state to have recourse to such extraordinary grounds: if the treaty of union does not explicitly restrict secession, a free right of secession follows from the nature of the treaty as a treaty of integration (art. 56(1) lit. b Vienna Convention). The goal of a treaty of integration is not the short-sighted defence at any price of the level of integration which has been achieved. Rather, the goal is sustainable, long-term integration, and voluntary participation in every phase of the integration process is an indispensable prerequisite if that goal is to be reached. ^[43]

31.   The expulsion of a member state is a measure of last resort. The law of treaties permits expulsion where a fundamental change in circumstances (art. 62 Vienna Convention) or a material breach of treaty (ibid., art. 60(2) lit. a) has occurred . It is only possible to conceive of a relevant fundamental change in circumstances (art. 62) where a member state turns away from the shared values on which integration is to be based - provided that those values have not been laid down in compulsory treaty provisions, as laid down for the European Union by art. 6(1) TEU; if so, it would be appropriate to apply art. 60(2) lit. a Vienna Convention. Expulsion is to be reckoned with, then, if a dictatorship is established in one of the member states of a free and democratic supranational union.

32.   Expulsion for material breach of treaty requires that the breach be significant, although not necessarily extremely grave (“material breach”, not “fundamental breach”). A material breach is given, in essence, where a member state fails to carry out a duty of membership, or is grossly negligent in fulfilling it. This is the case, for example, where a member state uses tactics tantamount to blackmail to block the work of the union’s organs over a long period, or causes significant damage to the union’s foreign affairs by illicit activities which run counter to the union’s common foreign and defence policy, or where a member state fails to implement, execute or enforce significant parts of union law within its jurisdiction. As a penultimate step before expulsion, one further measure, which goes beyond the treaty itself, should be considered: the suspension of the treaty of union, which art. 60(2) lit. a Vienna Convention permits under conditions identical to those outlined here for expulsion. ^[44]

33.   The persistent refusal to implement or execute individual union acts of secondary law is a special case. By refusing to take the necessary domestic measures even where the court of justice of the union has held that it must do so, a member state deliberately departs from the framework of the treaty of union and calls its own readiness to fulfil its duties of membership seriously into question. Even where a single directive or regulation is concerned, then, a breach of the treaty will be sufficiently grave to fulfil the requirements of art. 60(2) of the Vienna Convention. Since the judgment of the union’s court is binding on member states, a state cannot justify its refusal to implement or execute union law by claiming that a particular provision is unlawful. Apart from the refusal to implement or carry out secondary union law, disregarding the judgment would have another, equally serious consequence: contempt of the Union’s jurisdiction. The uniform validity and application of union law throughout the union is one of the fundamental pillars upon which the existence and efficiency of the union as a supranational governing entity and organisation of integration rests. Except for cases in which the limits of what domestic constitutional law permits to be transferred to the union have been exceeded, the duty to respect the union’s jurisdiction ceases only where a decision is so obviously and so materially in error that it can only be regarded as arbitrary. The duty to respect and abide by the union’s jurisdiction is valid across the board for all of the organs of a member state. If a domestic court - for example, a constitutional court - arrogates to itself the competence to act as a final instance for questions of union law, the other domestic organs will need to obviate the imminent danger of a material breach of treaty by taking the necessary legislative steps to neutralise the court’s usurpatory decision. In such a case, even a constitutional amendment may be necessary. Aberrations or undesirable trends in the jurisprudence of the union’s court should be corrected by amending the treaty of union to clarify the issues in question, and, if necessary, by including restrictive guidelines for future jurisprudence in that treaty. ^[45]

34.   D. A supranational union’s public power is no different from that possessed by a traditional supranational organisation. It is a public power which is exercised within a geo-regional jurisdiction that comprises the territory of several states. It is a single power, exercised by a single public authority under conditions which are identical everywhere in the union’s territory. It follow, then, that it is an independent power, inhering in the supranational authority and existing in addition to the public power exercised by each member state. A supranational union’s public power is subject only to those specific conditions for which its own legal order provides. It is not a “supra-state” power in any hierarchical sense. In contrast to the public power of a state, it is necessarily limited. Its existence, extent and basic direction are not autonomous. It is, however, exercised autonomously in each individual case. Even the member states can exercise control over the supranational public power only in their function as “masters of the treaties” ([“Herren der Verträge”], which is to say collectively), by the lengthy procedures necessary for treaty amendments. As a new, additional power, the supranational union’s public power is not in any real sense “derived”. Yet, since others have created it, it cannot properly be termed “original”, either. - Other constructions are conceivable, but they would not fall within the meaning of supranationality. ^[46]

35.   Supranational public power evolves in a two-step process. First, a supranational public authority is created. The founding states act collectively, in their capacity as “masters of the treaties”. No single state can create supranational public power, nor may it sustain or extinguish such a power. The second step in the process falls within the purview of domestic public law; its nature is such that each member state must complete the step by itself. Under the authority of existing public international law, in a global legal order which centres on the concept of sovereignty, state sovereignty is the source of all public power. No public power can exist, then, if it does not flow from a state’s act of will. If supranational public power is to evolve, therefore, it requires not only the establishment of a supranational public authority, but a national act which directly and generally vest all its measures with binding force at the domestic level [innerstaatliche Bindungsanordnung] in at least two member states. This domestic legal act is part of national compliance with the founding treaty. It is a formative legal act [rechtsgestaltender Akt], from which putatively sovereign supranational acts first acquire the legal status of sovereign acts which are valid within the domestic jurisdiction of an individual member state. The “order to apply supranational law” [“Rechtsanwendungsbefehl”], to which reference is frequently made, is really only a complementary measure intended to ensure that the sovereign quality of supranational acts is respected in practice. ^[47]

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