Chapter 3: Homogeneity in the Supranational Union


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Translation: Dr. Nicola Rowe, Hamburg

36.   A. The concept of homogeneity is the key to understanding how the supranational union, as an entity which is not a state yet resembles a state, and which has wide-ranging tasks but no actual instruments of power, can carry out its duties. The notion of homogeneity denotes a material similarity between member entities and the encompassing entity; there must be substantial coherence from the point of view of the whole. Homogeneity has long been one of the central concepts on which theories of federalism rest: it is necessary both in order to safeguard the collective integrity of the federal unit by precluding and limiting potential conflict and in order to ensure that a functioning vertical separation of powers is possible in practice. These rationales also seem necessary - if not, of course, to the same degree - in the context of those federal units which are governed by public international law. [48]

37.   There are two respects in which the notion of homogeneity requires clarification. First, the homogeneity needed in a federal state or supranational union is homogeneity within a union (federal homogeneity), not the more stringent homogeneity of populace (national homogeneity [C. Schmitt] or social homogeneity [Heller]) of the kind frequently mentioned as a prerequisite for democracy. The latter form of homogeneity may become an issue for a democratic union, but this is is a question, not for the form of organisation, but for democratic theory. Secondly, homogeneity refers to resemblance, not to uniformity, to relatedness, not identity of character, and to similar, but not to identical conditions. Homogeneity is located on a continuum between the heterogeneous and the uniform, and needs to be distinguished from both extremes. A minimum, not a maximum requirement, homogeneity need not be “optimised”, and the degree to which it must be present depends on a variety of factors. It is precisely this relative nature of the homogeneity requirement which guards against isolating or absolutist tendencies being read into the homogeneity principle. Thus, for example, states may be accepted into a supranational union even where an otherwise insufficient degree of homogeneity is present provided that the union’s member states can muster the political will and willingness to deal with the concomitant difficulties. [49]

38.   B. Since the reasons for requiring homogeneity (and hence also the requirements themselves) will vary, the question of homogeneity needs to be investigated anew for every form of organisation. Four reasons why homogeneity is essential and four criteria for homogeneity can be postulated for the supranational union. In all cases, there is a risk of destructive conflict if the requirements are not met.

39.   First, homogeneity is a prerequisite for the stability of the union as a single, integrated area where citizens live and work together. The free flow of capital, goods and human beings must not be allowed to cause a serious crisis in a member state such as a slump, a monetary crisis, mass emigration or immigration or social tension. Homogeneity of living conditions, which is to say homogeneity in terms of civilisation, of economic conditions and of social conditions in all member states, is therefore essential. The European Union’s enlargement to the east might pose grave problems in this respect. To secure homogeneity, a redistribution of funds from older to newer member states would need to accompany this step. [50]

40.   Secondly, homogeneity is a prerequisite for the union’s ability to function as a multipolar political system. [51] If friction is to be minimised and the union and its member states are to be able to act as a coherent whole, homogeneity of behavioural norms and patterns of public authorities will need to be demonstrated. As with homogeneity of value systems (infra), the issue here is one of legal and constitutional homogeneity. In this context, however, more important than the letter of the law is the way in which legal norms are implemented and dealt with in practice, which is to say the general legal culture in the union and its member states.

41.   Thirdly, homogeneity is a prerequisite for integration. If integration is to be successful, it will need to rest on a solid foundation of common fundamental values and ideas, as one of the purposes of the supranational union makes clear: being a larger and more powerful entity than the nation-state, the supranational union is intended to ensure that visions of the purpose and raison d’être of political community to which nation-states gave effect are also realised under the cirumstances of globalisation and geo-regionalisation. Naturally, this will only be possible where those visions actually correspond. Controversies regarding the general orientation of the union would otherwise be likely, too. A community as close as the supranational union would be unlikely to survive conflict of that kind.

42.   Homogeneity of value systems [Homogenität der Wertordnungen] is given where the philosophical and political values and ideas which mould political systems in the member states and the supranational union are in fundamental accord. In determining whether sufficient homogeneity is in evidence, the first line of inquiry is not directed at the institutions and principles of constitutional or primary law formed by the domestic legal tradition, however. Rather, the focus is on the underlying, more abstract, basic concepts of political theory. These basic ideas need to be identical (or similar, at least), and they need to have been put into practice to a comparable extent in every member state. The focus must be on the values as lived in practice, not on the ideals as set down on paper; this is the practice of the Council of Europe, which, notwithstanding a shared commitment to human rights, does not rescind the membership of states which are frequently guilty of serious violations of human rights. Thus, despite its status as a member state of the Council of Europe, Turkey cannot be considered for membership of the European Union while current conditions prevail. [52]

43.   Fourthly homogeneity is a prerequisite for a union’s individual charisma, and is thus a prerequisite for the union’s ability to secure not only rational allegiance, but also emotional loyalty. Citizens need to perceive the supranational union as “their” place to live, as “their” home [Heimat]. Being part of the union must be a part of citizens’ identity: they must identify with the union without ceasing to identify with their own nation-state (multiple identification). Each supranational union must, therefore, evolve specific characteristics which make it seem interesting and attractive to its own citizens. Philosophical and political fundamental values and ideals will not suffice for that: since they are universal, they are realised elsewhere.What matters are, instead, cultural factors (in the widest sense) - and thus a homogeneity of cultures [Homogenität der Kulturen] within the supranational union.

44.   Homogeneity of cultures implies compatibility of cultures. There must be a minimum fundamental correspondence which allows people who were raised in one culture to cope - and feel at home - in an area moulded by another. Moreover, a distinct cultural identity must be able to evolve for the union as a whole, without being forced; it must appeal to citizens of every member state. As a general rule, this degree of homogeneity will only be evident within the same civilisation [Kulturkreis], and the membership of a state which falls outside the civilisation in question will only be possible in limited and exceptional cases. [53]

45.   For the European Union, there is the question of the limits of the enlargement to the east. Turkey has declared its interest in membership. Yet, since Turkey belongs to the Islamic civilisation, any real interpenetration of national societies of the kind that integration would involve is bound to fail. The prospective membership of certain Eastern European states is not without difficulty, either. The Christian tradition which has exercised such influence on Europe has actually done so within two distinct civilisations, the Latin and Orthodox traditions. Differences between these two civilisations are still evident today, as the different development of post-communist Eastern European states shows. Thus far, the European Union - and its law - have been wholly anchored within Latin Christian civilisation, and there is no evidence of any evolution towards a union which embraces both European civilisations under the pan-European cultural umbrella, with all the consequences that would involve. As the Greek example makes clear, the European Union will remain within the Latin tradition - in other words, within the Western European tradition. If it expands to the east, its enlargement will be purely geographic, requiring member states rooted in the Orthodox Christian civilisation to adapt unilaterally to Western European values and practices, particularly in respect of western legal and administrative culture. [54]

46.   C. Homogeneity is secured first and foremost by an enlargement policy which centres on the concept of homogeneity; there are, moreover, various instruments which might be incorporated in the treaty of union. Thus, for example, homogeneity of living conditions can be protected if the union’s organs and member states are required to respect the needs of homogeneity in the policies they follow (cf. the European Community’s cross-section policy under art. 159 sub-sect. 1 phrase 2 EC Treaty). As a more potent instrument, the treaty of union can prescribe a policy for the active protection of homogeneity (cf. art. 158 sub-sect.1 EC Treaty, whose goals, it should be noted, go beyond the minimum necessary to secure homogeneity) and provide for the necessary fiscal supply (cf. art. 159 sub-sect. 1 phrase 3 EC Treaty). A system of abstract, horizontal fiscal equalisation of the kind that is common in federal states is out of the question at the beginning of the process of integration, but, to a lesser extent, becomes relevant in the final years before the transition to a federal state. Finally, a financial or economic crisis in individual member states may make emergency measures of assistance on the part of the union appropriate in order to avert imminent disastrous ill-effects on social or economic homogeneity. Measures of this kind impose a considerable burden on other member states; that should be taken into account when new applications for membership are considered. [55]

47.   Anchoring common fundamental values and ideas in a homogeneity clause in the treaty of union is the most important step that can be taken to secure homogeneity of value systems. A hard legal norm must be placed in a prominent place in the chapter of the treaty which deals with the union’s foundations. A proclamation in the preamble would be inappropriate. The European supranational union’s member states did not take the necessary steps until the Treaty of Amsterdam (sc. art. 6(1) TEU; for earlier measures whose ambit was restricted to democracy as a basic value, see art. F(1) TEU). To do justice to the plurality of legal orders which arise from the dual existence of member states and the union, only the basic concepts, as presented by political theory, should be incorporated into the treaty: it would be inappropriate to stipulate how they should be put into practice. A reference to basic legal principles, as designed in the same legal system, of the kind found in homogeneity clauses in the constitutions of federal states (e.g. art. 28(1) phrase 1 of the German Basic Law: “within the meaning of this Basic Law”) may not, therefore, be included. - Further steps towards homogeneity would be a thorough implementation of common fundamental values and ideas in union law and sanctions against member states for serious violations, as arts. 7 TEU, 309 EC Treaty, 204 EURATOM Treaty, 96 ECSC Treaty now make possible for the European Union. The expulsion of a member state remains as a measure of last resort. [56]

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[48]       3-A.I.

[49]       3-A.II/III.

[50]       3-B.I.

[51]       3-B.II.

[52]       3-B.III.

[53]       3-B.IV.1/2.

[54]       3-B.IV.3.b.

[55]       3-C.I/II.1.

[56]       3-C.II.2.


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