The Political Dimensions of Equality in the European Union: Equality of Union Citizens and Equality of Member States in a Supranational Representative Democracy

Abstract

Public international law, federal constitutional law and EU law guarantee the equality of citizens, peoples and States as well as the democratic structure of States in different ways. The international community and its law-making process are still clearly dominated by the equally sovereign States. It thus is the equal vote of all the Member States in the representative organ of intergovernmental organisations which ensures the democratic legitimacy of whatever indirect effect their decisions have on the citizens. In federal States as well as the quasi-federal EU, the (quasi-) federal level exercises direct legislative, executive and judicial authority over the individual citizens. This requires more solid democratic foundations of the (quasi-) federal decision-making process. The governmental authority of federal States is derived from the sovereignty of the composite federal people as an amalgamation of the persisting constituent states’ peoples. Federal constitutions therefore embody a compromise between the whole of the people and its parts that is specific to the particular federation. Federal States have a bicameral legislature. One chamber is the representation of the federal people consisting of equal citizens, the other chamber the representation of the governments or peoples of the equal constituent states. While the members of the former are directly elected by the citizens of the federation on the basis of equal suffrage, the composition and decision-making procedure of the latter is (mostly) aimed at ensuring the equality of the constituent states and their peoples irrespective of size. This is a typical federal modification of the democratic majority rule in favour of protecting structural minorities organised as states. The sui generis quasi-federal system of the EU is situated somewhere between an intergovernmental organisation and a federal State. From the perspective of democracy and equality, it shares one important feature with a federal State—its direct legal relationship with the individual citizens of the Union. This feature necessitates a bicameral legislature similar to the ones in federal States. There the equality of the Member States and the equality of the Union citizens need to be equilibrated in a way that is adequate to the unique supranational character of the EU’s representative democracy. Accordingly, while the equality of Member States representing national electorates dominates the Council, the equality of Union citizens constituting the European electorate dominates the European Parliament. But with regard to both institutions, the dominance of the one principle is significantly modified by the other. Whereas the linchpins of democracy in the international community are the equally sovereign States, the linchpins of democracy in federal States are the equal federal citizens who are simultaneously equal constituent state citizens and influence the federal decision-making process in both capacities through the two chambers of the federal legislature. In the EU, the linchpins of democracy are ultimately also the equal Union citizens who are simultaneously equal Member State citizens and influence the decision-making process of the Union in both capacities through the two chambers of the EU legislature. In the EU, the capacity as Member State citizens dominates, in accordance with the derivative quality of the citizenship of the Union as well as the decentralised character of the EU’s quasi-federalism. This adequately reflects the specific character of a supranational democracy based on still sovereign Member States and their citizens.