The Law of Delors

Jaap Hoeksma argues that Jacques Delors’ 1985 non-vision of the European Union as an 'Unidentified Political Object' has actually come to pass – with a little help from the European Court of Justice

The beginning of an adventure

In 1985, Commission President Jacques Delors began his ambitious project to transform the then European Communities into a European Union. Delors claimed the Communities were embarking on an adventure which would lead them to a terra incognita. In 30 to 40 years' time, he predicted, people would regard the EU as an ​Unidentified Political Object​.

Intergovernmentalists versus federalists

An ideological battle between intergovernmentalists and federalists dominated the ​​theoretical debate ​about the EU at the time. The former argued that the Union would have to form a Europe of Nation-States, in which Member States retained full sovereignty and provided democratic legitimacy. The latter argued that the new Europe could only arise and thrive through the creation of a new European state overarching the bellicose countries of the past. The new Europe had to be democratic and sovereign and, indeed, required the Member States to voluntarily transfer their national sovereignty to the United States of Europe.

Intergovernmentalists and federalists agreed to disagree, but the EU paid the price through the so-called paradox of the finalité politique

The rivalry between the two competing schools resulted in intellectual stalemate. They agreed to disagree, but the EU paid the price through the so-called paradox of the finalité politique. Progress in the field of European cooperation could only be made on condition that nobody mentioned the end goal of the common endeavour.

Keeping the integration process alive

Under these circumstances, Commission President Jacques Delors had to devise a smart policy in his effort to keep alive the faltering process of European integration. Delors declared his aim to ​​‘weld [the EU] into an entity enabling each of our countries to benefit from the European dimension and to prosper internally as well as hold its own externally’.

Delors' description of the polity-in-creation did not meet the criteria for either state or association of states. But if he had said so openly, his effort may well have been doomed to fail from the outset.

By portraying his brainchild as an Unidentified Political Object, Delors let sleeping dogs lie. This allowed him to proceed without encountering too much ideological intransigence.

Ambivalence and weakness

Forty years on, Europe has changed beyond recognition, but the ideological stalemate still prevails. The Franco-German working group on EU institutional reform found in its autumn 2023 report that the intellectual debate about the nature of the EU and the future of Europe still remains under the Westphalian spell of either state or association of states.

Brexiteers claimed the EU threatened the very existence of the British nation and that it had become a reincarnation of the Roman Empire

The EU has paid a heavy price for this intellectual stalemate. For example, during the UK referendum on EU membership, it proved unable to defend itself against fervent Brexiteers' ​​allegations that the EU threatened the very existence of the British nation and that it had become a reincarnation of the Roman Empire or, worse, a Fourth Reich.

European Court of Justice steps in

Scholars and politicians have failed to grasp the meaning of Delors’ notification that it is a priori impossible to identify a new phenomenon or construct in terms of the template that it has outgrown.

Delors envisaged a polity enabling each of our countries to benefit from the European dimension and to prosper internally as well as hold its own externally. But his polity would neither meet the strict legal criteria for statehood nor those for qualification as an association of states. Any neutral observer could have noticed this at the time.

Delors’ notification would have remained a mere interesting idea, had it not, in subsequent decades, been corroborated by the jurisprudence of the EU Court of Justice. Without referring to whatever political or academic dispute concerning the finalité politique of the polity, the ECJ accounted for the constitutionalisation of the EU brought about by the treaties.

In its Conditionality Verdicts of 16 February 2022, ​the Court observed that EU Member States have started the process of European integration by agreeing on their common values. Subsequently, they have applied these values to their organisation. As a result, the Union must meet similarly stringent criteria of democracy and the rule of law as it requires the Member States to respect. Member States must comply with these criteria on accession and must continue to respect these constitutional demands afterwards. So the ECJ described in hindsight how the process which Delors anticipated in 1985 had indeed taken place.

The EU has evolved since 1973 from a Union of democratic States to a union-of-democratic-states-which also-constitutes-a-democracy-of-its-own

Formulated in terms of political science, the ECJ summarises the EU’s evolution from a Union of democratic States (1973) to a union-of-democratic-states-which also-constitutes-a-democracy-of-its-own. As construed by the Lisbon Treaty, the EU can therefore be described as a democratic Union of democratic States.

A democratic international organisation

The equivalent of this concept in terms of global governance is ‘democratic international organisation’ (DIO). The traditional Westphalian approach would of course reject this appellation as an oxymoron. However, it reflects the essence of the present EU as a value-based polity of states and citizens.

From this theoretical perspective, we may draw two conclusions.

The jurisprudence of the EU Court of Justice has elevated to an academic law the hypothesis Delors formulated in 1985. We might call it the 'Law of Delors'. This law holds that it is impossible for us to identify a new phenomenon or construction in terms of the template which it has outgrown and abandoned.

In addition, the Law of Delors enables researchers to overcome the stalemate in the protracted debate about the finalité politique of the EU. Ultimately, it allows us to identify the Union in its present form as a democratic international organisation.

This article presents the views of the author(s) and not necessarily those of the ECPR or the Editors of The Loop.


photograph of Jaap Hoeksma
Jaap Hoeksma
Independent Philosopher of Law

Jaap started his career in human rights with UNHCR, and published about refugee law.

He is based in Amsterdam.

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At the time of the Maastricht Treaty, he published the board game Eurocracy with a view to demonstrating that the Westphalian system is not ‘the eternal foundation of international relations’.

democratisation of the european union jaap hoeksma

Jaap's book The Democratisation of the European Union (eleven, 2023) reveals that the EU has indeed replaced the Westphalian system with the European model of transnational governance.

He tweets @EUSpokesman 

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