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"Catalonia and the crumbling façade of the European "citizens’ union"", Bardo Fassbender

In the midst of the Catalonia crisis, the EU’s claim to be a "union of citizens" has not been vindicated. Instead, like an old-style association of states, it defends the interests of nation states, at the expense of citizens if necessary. By Bardo Fassbender.

20 October 2017. Today’s European Union differentiates itself not only economically and politically, but also diverges in a legal sense from the "classical" international organisations, in which, since the second half of the nineteenth century, states have merged to more effectively pursue specific common aims. A key distinctive feature is the legal relationship of individual citizens to an organisation. In the case of the "classical" organisations – such as the United Nations or the Council of Europe – there is no direct relationship between organisation and individual: with its legislative acts, the organisation can only bestow rights and impose obligations on its member states, not on the citizens of these states. The legislative acts of the organisation must first be implemented in the domestic legislation of the member states; only as domestic legislation, citizens are bound by these acts.

Citizens and states are constituent legal entities of the EU
In contrast, since its beginnings in the time of the European Communities, EU law has been characterised by its "direct effect": The law of the Union can directly – without the mediation of member states – bestow rights and impose obligations upon individuals, on which these individuals can rely before national and European courts. In its fundamental judgement in the case of van Gend & Loos from 1963, the European Court of Justice emphasised that the functioning of the Common Market "is of direct concern to interested parties in the Community"; in the Court’s view, the European Economic Community Treaty was "more than an agreement which merely creates mutual obligations between the contracting states". "This view", the Court held, "is confirmed by the preamble to the Treaty which refers not only to governments but to peoples. It is also confirmed more specifically by the establishment of institutions endowed with sovereign rights, the exercise of which affects Member States and also their citizens". The Court arrived at the conclusion that "the Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights (…), and the subjects of which comprise not only Member States but also their nationals". "Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage."

This underlying concept was stressed in the first Article of the Treaty establishing a Constitution for Europe of 2004: "Reflecting the will of the citizens and States of Europe to build a common future, this Constitution establishes the European Union …" Despite the fact that this treaty did not enter into force, the wording accurately describes the duality of the constituent entities of the EU: both the citizens and the states of the Union are legal entities which constitute and make up the EU. Already in the founding stages of the European Community, legal scholars, such as the German-American lawyer Wolfgang Friedmann, saw this duality as a potentially innovative example for other regions of the world and an aspect of the fundamentally changing international public legal order.

Strengthening the citizenship of the Union
In the meantime, EU law has gradually strengthened the position of citizens: With the Maastricht Treaty (1992), a citizenship of the Union was created, which complements respective national citizenship. Among other things, it confers the freedom to move and reside across the entire territory of the EU, and the active and passive right to vote in the elections for the European Parliament and in local elections at the place of residence. The Lisbon Treaty (2007) gave the basic rights and freedoms of Union citizens proclaimed in the EU Charter of Fundamental Rights direct validity.

The EU defends the position of its member state Spain
However, throughout the Catalonia crisis of this autumn, the EU has hitherto failed its test as a "citizen’s union". Of a "new legal order", whose legal subjects are also the individuals, there is, so far as concerns Catalonia, nothing to be seen, nor the slightest hint of a conversation regarding the rights and interests of the 7.5 million citizens of the Union in Catalonia. Instead, like an old style international organisation, the EU is solely defending the position of its member state Spain without compromise. Brussels has only threats and warnings left for the Catalans. Since José Manuel Barroso’s time in office, the EU Commission has repeated the formula that, in the event of independence from Spain, Catalonia would "automatically" leave the EU and the eurozone and would have to reapply for membership "like any other state", despite the fact that the EU treaties do not provide rules for the event of the separation of a region from a member state. With that, the loss of Union citizenship of the population of Catalonia would also take place "automatically". Between the lines lies the threat that Catalonia will not achieve new membership status, because for that the agreement of all EU states is required, including Spain’s.

Defence of the "rule of law"?
On 2 October 2017, the President of the EU Commission, Jean-Claude Juncker, described the Catalan independence referendum as "unlawful under the Spanish constitution". He maintained that this was an "internal matter for Spain, which must be addressed within the Spanish constitutional framework". Two days later, in front of the European Parliament, the First Vice President of the Commission, Frans Timmermans, added that, in his view, it is the obligation of every government to defend the "rule of law" – including the use of violence, should this be a proportionate response. In so doing he condoned the deployment of the Spanish police on the day of the referendum, during which more than eight hundred people were injured. The President of the European Parliament, Antonio Tajani, thanked the Commission for their "clear position". Speaking on behalf of a parliamentary majority he stated that, in their view, "unilateral decisions, including declarations of independence" contravened the European legal order. The prominent MEP Elmar Brok called the referendum a "breach of law" and warned that: "The Catalans must know what to expect", should they declare their independence.

Does EU law have nothing to say regarding Catalonia?
In the case of Catalonia, for the EU Commission the "rule of law" is synonymous with Spanish law. EU law, the precedence of which over the national law of member states (including their constitutional law) the Commission does not tire of emphasising elsewhere, was completely disregarded as a benchmark here. Does the much vaunted European constitutional law have nothing at all to say on the events in Catalonia? Are no indications to be gleaned from the protection of fundamental rights and freedoms for all EU citizens as well as the rights of national minorities enshrined in European law? What about the principle of subsidiarity and its significance on a "regional or local level", stressed by article 5, paragraph 3 of the EU Treaty, or the goal of the Union to safeguard the "wealth of its cultural and linguistic diversity" (article 3, paragraph 3 of the EU Treaty)? What relevance in European law does the status of Catalonia have as a region whose representatives are members of the European Committee of the Regions? Does the EU’s commitment to international law and the UN Charter not also encompass respecting the right of peoples to self-determination? Does EU law stipulate the sanctioning of citizens of the Union who are committed to both the independence of their region and to continued membership in the EU?

Is the "union of citizens" merely a crumbling façade?
The message from Brussels is clear, and it will not only be taken note of in Catalonia: in a political conflict of EU citizens with their own state, Union citizenship has no intrinsic value. The direct legal relationship of the citizens to "their" Union must take second place behind the law of the member state. The armour of the sovereignty of the nation state is restored. Those who do not comply with national law, though they may still be firmly committed to Europe, are excluded from the "area of freedom, security and justice", which the EU claims to have created. Put to a genuine test then, has the European "union of citizens" proved itself to be merely a crumbling façade? When things get serious, is it not indeed the case that the interests of citizens are subordinate to those of the state, or, as in the founding act of the German Confederation of 1815, to the “peace and harmony of Europe”? The Catalonia crisis of 2017 may hold greater significance for the future of the EU as a legal community than is currently realised in Brussels and Strasbourg.

Professor Bardo Fassbender teaches Public International Law, European Law and Public Law at the University of St.Gallen.

https://www.unisg.ch/en/wissen/newsroom/aktuell/rssnews/hintergrund/2017/oktober/hintergrund-fassbender-katalonien-eu-20oktober2017