What Does The Pooling Of Sovereignty Actually Mean

What Does The "Pooling" Of Sovereignty Actually Mean? Presented by: Dr. Petr Date: 22 – 25 March 2025 Introduction - EU is based on limitation of sovereign rights of Member States • 26/62 Van Gend en Loos  EU law creates „a new legal order of international law for the benefit of which the fields" States have limited their sovereign rights, albeit within limited • 6/64 Costa v ENEL  “The transfer by the States from their domestic legal system to the Community legal system of the rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights, against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail" - Two challenging characteristics of EU integration • (1) Autonomous and superior legal order  …leading to conflicts between key judicial institutions • (2) Majority voting  obliging States to enforce rules they do not agree with - A view from the Czech Republic: Czech Constitutional Court (CCC) • Art. 1 (1) of the Constitution: „Czech Republic is a sovereign [...] state" • (1) Czech Republic remains a sovereign state  but the understanding of sovereignty has to change • (2) Within the EU, it is not „lost", but „pooled" • (3) The „pooling" of sovereignty makes the state actually „more sovereign" Issues To Be Discussed - What is sovereignty? - May the sovereignty be „pooled"? - How may we approach the future EU – MS relationships? Sovereignty Yesterday, Today and Tomorrow - (1) Traditional Understanding of Sovereignty • Jean Bodin: absolute power capable of expressing itself against all society • Theoretical justification of powers of territorial rulers • Internal (unrestricted powers within territorial jurisdiction) and external (independent and equal states) aspect - (2) Sovereignty as „pouvoir constituent" • Original power constituting the state • ССС (1993): „Within the concept of a constitutional state, there are no longer sovereign powers, there are only competencies" - (3)„Practical" sovereignty • MacCormic, N. (1993) Beyond the Sovereign State • "a state is sovereign if the exercise of power internally to the state is not subject to external superior power or to other constraints or restrictions legal in nature" - Are the states of today sovereign? • Does a state enjoy absolute powers?  NO (and never did) • Does a state enjoy exclusive powers within its territory?  NO (many competences are delegated to other entities, and rightly so) • Does a state remain in control of the rules in its territory?  Let us have a look at the EU Step Back: the CCC - The Lisbon I judgment (2008) • (1) EU membership limits sovereign rights of a Member State  It is more a linguistic question whether to describe the integration process as a "loss" of part of sovereignty, or competences, or, somewhat more fittingly, as, e.g., " lending, ceding" of part of the competence of a sovereign • (1) But it is a free choice  It may seem paradoxical that the key expression of state sovereignty is the ability to dispose of one's sovereignty (or part of it), or to temporarily or even permanently cede certain competences • (3) As long as the transfer of powers is limited in scope... • (4) And conditional the conferral of powers is "naturally a conditional conferral, as the original bearer of sovereignty, as well as the powers flowing therefrom, still remains, the Czech Republic" - What happens with the Czech sovereignty? • (1) Sovereignty is a tool  „sovereignty is not an aim in and of itself"; it is rather „means to fulfilling the [...] fundamental values, on which the construction of a constitutional, law-based sate stands" • (2) A state is not strong enough on its own  integration "can ultimately lead to protection and strengthening of the sovereignty of member states vis-à-vis external, especially geopolitical economic factors" • (3) „Pooling" the sovereignty with others makes the state stronger  ,the transfer of certain state competences, that arises from the free will of sovereign, [...] is not a conceptual weakening of the sovereignty of a state, the but, on the contrary, can lead to strengthening it within the joint actions of an integrated whole" Back to the EU - Do we actually need the concept of pooled sovereignty? • Waever, O. (1995) Identity, Integration and Security: Solving the Sovereignty Puzzle in EU Studies • "[the] 'transfer of sovereignty' means that something that the E.U. does was domain of states at another time. But it is not designated by the state as an of its sovereignty at the same time. [...] This sovereignty is not is the unit afterward less sovereign. Rather, included in the list of issues covered the attribute collected anywhere, nor the issue given away is simply no longer by sovereignty. Sovereignty is the form, whose content changes over time" • Keohane, R., Hoffman, S. (1994) Institutional Change in Europe in the 1980s the EU „is essentially organized as a network that involves pooling and sharing of sovereignty rather than the transfer of sovereignty to a higher level" - It is ultimately a practical issue • (1) Cooperation is – mostly - beneficial and effective • (2) Sovereignty is not lost for the purposes of cooperation • (3) The loss of exclusivity is balanced by effectiveness • (4) But what if the state does not like the rules within its territory?  Not an issue of sovereignty, but control  Practical application: majority voting Back to the Beginning... And the Future - (1) No need to federalize the EU (even if it was practically possible) - (2) No need for a new theory of sovereignty - (3) Back to specific practical issues