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.