Europe & co-sovereignty
Xabier Ezeizabarrena, Basque Visiting Fellow, European Studies Centre, St. Antony’s College
When we are facing and positively welcoming the Eastern enlargement of the EU, there are still many issues pending with regard to the European integration process. One of these is the current situation of Sub-State entities within the Union and the possibilities involved in the whole system of following the path towards a concept of sovereignty that is already shared at the supra-national level, but not at all within the respective domestic constitutional levels. This is particularly important in building, developing and enforcing the EU Law.
Sub-State entities like Wales or Scotland in the UK; Wallonia and Flanders in Belgium; Bavaria and the other German Länder; the Austrian Länder; or the Basque Country, Catalonia, Galizia and some others in Spain, do have, among many others in the whole of Europe, a key role therefore and are facing with difficult legal and institutional challenges before the EU, due to their current difficulties to actively participate within all EU levels whatsoever. The problems in reaching a peaceful institutional agreement on all the aforementioned are even greater when we talk about the EU as the fruit of an international treaty, and therefore, through the concept that avoids Sub-State entities taking part directly within EU decision making processes. In certain sense, we can talk of the EU as a real fruit of an international treaty. However, it has a clear will for political integration and this requires as well dealing with Sub-State participation in different terms at all levels. This means that in an international organisation looking for integration, more than ever now with the constitutional project, the Sub-State approach recognised at domestic levels needs to become a part of the EU framework.
This view is also present in different provisions of the treaties, for instance, Article 6.3 of the EU Treaty regarding respect for national identities of the Member States (article 5 of the Project of European Constitution). And this provision does not only demand to protect domestic particularities of every State within the EU, but also the recognition of the national particularities within several Member States.
In order to focus this and assume its real dimension we may use as example the institution of Human Rights. They are an inherent requirement to belong to the EU system and characteristic of every single of the Member States. Article 6.1 of the TEU is clear therefore (article 2 in the Project of Constitution). This is essential because the EU assumes “ab initio” that the nuclear part of its legal regime is going to be controlled not in direct means by itself, but through the common constitutional traditions of the Member States. This is indeed directly linked with sovereignty and rights of individuals that are entitled to claim for the protection of those rights before an administrative or jurisdictional body whatsoever.
So, the real existence of a sum of constitutional agreements seems to be here a suitable procedure to recognise those Human Rights at the EU level, even though the EU itself lacks the tools to protect them directly. Therefore, there is a principle of mutual trust for the protection of Human Rights in each domestic level. If this is so in such a basic matter of our legal systems, why not a similar principle of mutual trust in order to recognise and assume the participation of Sub-State entities within the whole process?
Nowadays, finally, there is a growing mutual impact in this regard through the enforcement of the general principles of Law and the jurisprudence of the ECHR mainly. Thus, Human Rights continue to be a relevant part of the EU tradition as a nuclear point, with at least three sources of recognition and assumption:
a) The EU Law with the mentioned limits.
b) International Law, specially through the ECHR.
c) The domestic Law of each Member State.
It was actually the existence of a common constitutional tradition that helped substantially the developments in Human Rights. And this may serve as well to reach similar approaches in those cases where Sub-State entities might be lacking protection even though having a constitutional direct recognition in several cases. Indeed, the absence of a real positive charter of Human Rights at the EU level, despite the recognition on article 6 of the EU Treaty, has not been an obstacle for the EU to assume them, even through the jurisprudence of the CJEC inspired as well, inter alia, by those common general principles of Law of the Member States.
So, therefore, if in such a matter as Human Rights, the importance of the domestic regime is extremely clear for real protection at European level, the EU bodies, Member States and, eventually, the CJEC should also take up the challenge to define the protection of the constitutional rights of Sub-State entities before the EU.
The lack of the subsidiarity principle at Sub-State and local levels is another problem in this context showing the evidence of a void political will within certain Member States in order to comply with article 5 of the EC Treaty. This means that the EU actions do also have certain limits within the objectives provided by the EC Treaty. Therefore, and once provided that the rights or powers of Sub-State entities do not affect those objectives, they may have a presumption of legality at the EU level likewise at the domestic one, according to their constitutional recognition.
Finally, the implementation at the European level of the constitutional reality within every social, territorial and legal scope demands to distinguish the existence of these Sub-State complexities that are not easily defined under the general concept of “Regions”. Domestic realities with a constitutional statute within the Member States may require peculiar treatments in order to implement that constitutional scope and singular approach. That is obvious, in particular, for those entities with legislative powers.
Both the process for a European Constitution and the coming Eastern enlargement are unique opportunities at least to approach the situation of the Sub-State entities within the EU. The path followed already by Germany, Belgium or Austria offers clear examples of real participation, integration and co-sovereignty exercised for national solidarity.
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