Can monarchies survive the European Union?

In its February number the European Constitutional Law Review published an essay by Hans Ulrich Jessurun d’Oliveira, a Dutch legal scholar, entitled The EU and Its Monarchies: Influences and Frictions (available online here for those who have a subscription to the journal). The author focuses on the relationship between monarchy and the Union, especially concerning basic fundamental rights. It is a subject that is not often taken into consideration by legal scholars and it is not taken up in legal education. The reason is probably that it does not affect all member states of the Union, but only a minority of them. However it is still an existing issue and it is very interesting and stimulating to read about it.

One of the problems that d’Oliveira wants to present is that some human rights do not apply to monarchs, which are also the head of states. The freedoms concerned are freedom of religion and prohibition against discrimination based on sex. He also touches upon the issue of democratisation of the Union.

Early on in the article the author states that the purpose of the essay is to “identify areas where the EU influences the constitutional architecture of its monarchies and to indicate dynamics of frictions and tensions between the two”. He points to the fact that the governance in Europe has changed a lot in the last two centuries. For example, in the Congress of Vienna in 1815, 57 out of 64 European countries (≈90%) were monarchies, while in 2001 only 11 out of 48 (≈23%). Furthermore, today most of them are smaller countries, with the exception of the United Kingdom. At the moment of the creation of the European Communities three of the founding six members (50%) were monarchies, but nowadays only 7 of 27 have a monarch as head of the state (≈25%).

D’Oliveira points out that during the historical developments of the last century the republican way of governing a state has prevailed in Europe, and the remaining monarchs had to give away most of their powers, reducing their role to a merely symbolic one. Human rights protection is an issue that comes high on the agenda of the Union. However, when it comes to a royal family, it does not seem the case anymore and the member states deprive them of a number of their fundamental rights, including the freedom of religion. Even if it may be argued that some of these restrictions are justifiable considering the public functions that the royal families assume, when it comes to their freedom of religion, the restriction is more difficult to justify. It seems out of time in the European democratic society. One of the typical examples is the fact that the King of Sweden must always practice the “pure evangelical faith”, and if not he or she loses the right of succession to the throne. In today’s European multicultural society it seems an old-fashioned rule to require a head of state to belong to the evangelical faith. It is even more so if we consider that this rule is contained in a document which pronounces curses against other religions including Muslims, Jews and others (the Augsburg Confession of 1530). In the case of the United Kingdom the situation is even worse, because the King or the Queen must not only practice the Anglican religion, but also shall never marry a person adhering to the Catholic Church at the expense of losing his or her the right of succession.

In an interesting passage of the essay D’Oliveira deals also with the question of reverse discrimination, i.e. the freedom of a member state to treat its own citizens in a way that gives them less rights than nationals of other member states enjoy on the basis of EU law (at p. 68). He considers it a manifestation of the unshared sovereignty of the member states which finds its theoretical foundation in the distinction between activities that have no connection with situations that are covered by Union law and those falling within the scope of Union law. However, this freedom tends to be reduced because of the increasing role and influence of the European Court of Justice which is systematically expanding the scope of the four freedoms in its case-law. In the opinion of d’Oliveira it results in a blurring of the difference between the two regimes (the national and the Union one), and in this way the internal frontiers between the member states fade away or become irrelevant. The question of reverse discrimination emerged in relation to the d’Oliveira’s argument that the monopoly of the Crown over its subjects has broken down.

There are still monarchical systems contradicting the European Convention on Human Rights. D’Oliveira recalls the Belgian lex salica, which provides that the male primogeniture inherits the throne, that was abolished in 1991 as untenable under the principle of gender equality upheld by the Union. In virtue of Art. 23 of the Charter of Fundamental Rights of the EU equality between men and women must be ensured in all areas. However, Spain and the United Kingdom still allow only male successors to the throne.

The author also points out the democratic deficit in having a head of state that is not chosen by the people. Can a king or queen represent a member state in the European Council? It is up to the state itself to choose if they want to be represented by the head of state or the head of government (Art. 10 TEU). In reality, however, there is never, as the author expresses it, “a crowned head” who appears at the normal meetings in the European Council. It is instead the prime-minister or the elected president who represents the state. The role of the Council and the questions discussed and decisions made by it are considered to need political knowledge and skills that a king or queen, as a head of state by hereditary, not often has. It gives the prime-ministers a role reminiscent to that of a president, while the king or queen gets a less prominent and more ceremonial role. From a democratic perspective it is important that the state representative is a person elected by the people and not someone who was just born in the “right family”. The prime-minister also represents a political party and political values of the people who elected him or her, while the monarch is prohibited from being politically involved. It gives to the head of government better competences to represent the state in political matters.

The future of the monarchy is uncertain if the Union will continue to develop in the same direction as it does today. It is difficult to balance fundamental rights and democracy with the, sometimes old-fashioned, traditions that is the monarchy. It can become problematic to defend discrimination based on gender just to uphold old traditions.  If the Union wants to develop into a more federal organisation then there might not be place for a monarchy anymore.

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About eulaworebro

Örebro Universitet (Sweden)
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5 Responses to Can monarchies survive the European Union?

  1. Stina Haglund says:

    It is true as the author points out that since the members of the royal families of the EU member states are also people and citizens of EU member states, fundamental rights should be applicable to all human beings, irrespective of profession or position. Several of the old traditions concerning the monarchies around Europe can be under a lot of criticism for being too old fashioned and not as liberal as you might expect that norms should be under the 21th century. Usually the only possibility for a member of a royal house to have a right to freedom of religion is to give up his or her right to the throne. In the modern world I think that there are many royalties that are willing to give up their right to inherit the throne in order to live a more normal and liberal life, even though it might not always be because of religious reasons. In the Netherlands a prince lost his right to succession to the Netherlands throne when he got married since the Dutch cabinet did not seek for permission of the marriage by the parliament which was necessarily if he was to remain in line of succession to the throne according to the Dutch Constitution. I am quite sure that female successors are allowed to inherit the throne in Spain due the modification of the Spain Constitution in 2005, however male and female successors are still treated differently since male successors have priority. The modification of the Spanish Constitution was made after it was revealed that the Crown Princess of Spain was to have her second child, a daughter and this can be seen as an example when there is a reform of the Constitution in order to adopt a more modern approach to the monarchy. I think that the monarchy will survive in Europe as long as there is a media interest, i.e. public interest, because then people can make a lot of money out of the monarchy. The citizen of any member state would probably never accept the monarchy if the royal family was to present the country in international politics, e.g. in the Council. There are probably other fundamental rights that royalties strives to be entitled to, in particular the right to privacy. There must always be a balance between the public interest and the right for privacy for the royalties, which have been seen in the case before the ECtHR when the princess of Hannover claimed that her right to privacy and family right had been violated according to Article 8 of the ECHR . It is up to the member states to decide whether or not they want to have a monarchy and it is indirectly the people that decide since democracy prevails in all member states. I do not think that the Union will turn into a federation, at least not in any time soon. EU is an organization and even though it is a supranational organization with specific features it is still not a state. The monarchies in Europe will probably survive, however I am under the impression that some of the old fashioned norms need to be reformed in order to comply with fundamental rights, e.g. that the right of freedom of religion will apply to members of royal families as well a right to marry a person with a different religion.

  2. Amelie says:

    It is interesting to see the relationship between the European Union and monarchy, or at least to hear the discussions about it among the people. Not all the member states within the Union have a monarchy and the ones that have it, probably cherish it. However there are people in the states that are against monarchy as such.
    Historically the monarch, as a ruler, was common, but now the reality has changed. The role of the monarchy is now just a symbolic one and has almost nothing to do with power.
    The fact that the Member States deprive the royal family of their fundamental rights, e.g. freedom of religion, might seem unethical if you think about what values EU stands for. If the monarch changes religion he or she will lose the right to the throne. This is of course mainly because of old traditions, and not about religion per se. One can argue that this seems harsh, out of date and not compatible with the Unions values. However, one must also remember that the traditions are also an important part of a States culture and that should also be respected within the Union.
    One discussion that also tends to come up when talking about the monarchy is that the people do not elect the head of the State. It is the prime-minister or elected president of a State that represents it. From a democratic point of view it is important that the people elect the person that represents the State. This person also represents a political party and has political values, which makes him or her more suitable to handle and represent the State in political matters. The role of the king or queen is more of a ceremonial one. This of course has its good and bad aspects and therefore the discussion among the people are divided. Some feel that the royal family represents the State in a good and more humble way. The traditions are a nice thing to have and some occasion’s turn into a feast among the people, as when the Swedish crown princess Victoria and prince Daniel got married or last week when their daughter princess Estelle was baptised. How the monarchy will survive in the future is yet to be seen, but it must not be forgotten that the monarchy is representing a cultural tradition and the royal families also have important jobs, that their engaging in, even if not political ones.

  3. Lina Olsson says:

    There have been said that if the Union wants to develop to a federal organisation there might not be any place for monarchy anymore. I believe it is not the question of how monarchy will survive EU but how EU would be able to enforce an abolish of monarchies. It is true that monarchy is not fully compatible with neither fundamental rights nor democracy. However, there is possible to develop monarchies to a more modern approach e.g. is the Swedish royal family not representing Sweden in EU, instead elected politicians are. The Swedish princess or prince are free to marry a person with non-royal bloodline, like princess Viktoria did when she decided to marry Daniel Westling, “the man of the people”. Monarchy is supported by a long history and culture which will not be easily abolished. Not only is it a culture tradition, the royals are an important symbol for these States, attached by the citizens as well as the State as such. Royals are not just the symbol of their title, they do a lot of important work for the State as well, often in the light of human rights and solidarity to other States. I do, however, not believe the Union will be federal in a short future, consequently, there is no need to abolish monarchy, yet. My conclusion is that there is no threat to monarchies at the present, when it might be, they have a good chance to survive by develop into more modern approach and further, an abolish will not come easily because of the strong cultural history attached.

  4. pilit says:

    the author is clearly biased towards the monarchy and completely ignores the fact that monarchs are above the law. They have privileges well above the normal citizen and that’s the reason why rights that are thought as “normal” do not apply to the simply because punishment and laws that apply to citizens do not apply to them either!
    I wonder if the author has thought why the clergy is not allowed to express political opinions? why the separation of the state and religion?? It’s simple because without separation some people held too much power and too much power in the hands of a few is a threat to a democratic system.
    Monarchs by birth already hold too much power, power a normal citizen no matter who does not hold by right, thus the limitations of their powers!
    Monarchies should simply NOT exist in a modern world, particularly in Europe they should be abolished!

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