
The Timeliness of Direct Democracy in the EU— The Example of Nuclear Energy in the EU and the
Institutionalisation of the European Citizens’ Initiative in the Lisbon Treaty 5
national law: it is also true for Europ ean law. There is no
such thing as some genuine, self-defined or in-built su-
premacy of the Euratom Treaty, see [12,13]. To acknow-
ledge tensions and conflicts does not suspend the com-
mitment to the rule of law; they point to the domain of
conflicts of laws which is dedicated to the handling of
such tensions. To be sure, the notion of conflict of laws is
not being used in the pertinent legal texts. But we find
there helpful instructions and orienting principles:
Article 3 TFEU provides:
1) The Union shall have an institutional framework
which shall aim to promote its values, adv ance its object-
tives, serve its interests, those of its citizens and tho se of
the Member States, and ensure the consistency, effect-
tiveness and contin uity of its policies and actions.
2) Each institution shall act within the limits of the
powers conferred on it in th e Treaties, and in conformity
with the procedures, conditions and objectives set out in
them. The institutions shall practice mutual sincere co-
operation.
The commitment to democracy and human rights
were mentioned above.
It is important to realise that the response to a conflict
need not to be found in a uniform answer. “Unity in di-
versity”, the fortunate motto of the otherwise not so for-
tunate Draft Constitutional Treaty points in the proper
direction. To put it in very mundane terms: The French
are not entitled to expose the Germans to the risks of
nuclear energy. The same is true vice versa: The Ger-
mans cannot impose their Energiewende on the rest of
Europe. Are we back at the beginning of our delibera-
tions? Is the European democratic deficit at the end of
the day purely an irresolvab le dilemma?
4.4. The Primacy of Politics and the Search for
Mediating Initiatives
Tertium datur. Atomic energy confronts us with funda-
mental difficulties. It took the Germans decades of po-
litical contestation before they concluded “after Foku-
shima” that their Ausstieg is politically opportune, eco-
nomically and technologically feasible. There are many
reasons for other societies not to follow that example. As
I have argued above, atomic energy is a problem which
should not be delegated to expert circles, intergovern-
mental bargaining or the law, not even to the European
Court of Justice.19 Atomic Energy policy needs to be
embedded in legitimating political processes. Such pro-
cesses are unlikely to end in European-wide uniformity.
They may, however, promote mutual understanding and
the readiness to take serious concerns of neighbouring
societies neighbouring societies seriously. This is why
the request of the Land Northrine-Westphalia for strong
safety standards deserves recognition . It seems to me that
the European Commission has understood these lessons.
This I infer from the recent proposal for a Directive on
energy efficiency20 and the Communication on renewable
energy.21 All that are not to say that ECIs which seek to
promote such innovative moves would have become su-
perfluous. But it is nice to conclude with an optimistic
outlook.
REFERENCES
[1] R. Forst, “Transnational Justice and Democracy,” 2011.
http.//ww.reconproject.eu/main.php/RECON_wp_1112.p
df?fileitem?5456467
[2] J. Bohman, “Democracy across Borders: From Dêmos to
Dêmoi,” MIT Press, Cambridge, 2007, pp. 135-152.
[3] J. Habermas, “Does the Constitutionalization of Interna-
tional Law Still Have a Chance?” In: J. Habermas, Ed.,
The Divided West, Polity Press, Cambridge, 2007, pp.
113-193.
[4] S. Wolf, “Euratom, the European Court of Justice and the
Limits of Nuclear Integration in Europe,” German Law
Journal, Vol. 12, No. 8, 2011, pp. 1637-1657.
[5] R. Sauter, “EU-Agenda- Se tting und Europäische En ergiepo -
litik: Das ‘EU-Nuklearpaket’,” Österreichische Zeitschrift
für Politikwissenschaft, Vol. 38, No. 4, 2009, pp. 453-
463.
[6] P. Kautracos, “Case Annotations,” Common Market Law
Review, Vol. 41, 2004, pp. 191-208.
[7] C. Trüe, “EU-Kompetenzen für Energierecht, Gesundheitss-
chutz und Umweltschutz nach dem Verfassungsentwurf,”
Juristenzeitung, Vol. 59, No. 15-16, 2004, pp. 779-791.
[8] B. Wegener, “Die Kündigung des Vertrages zur Gründ-
ung der Europäischen Atomgemeinschaft (EURATOM),”
2007.
http://www.gruene-bundestag.de/cms/archiv/dokbin/170/
170871.reader_euratom_gutachten_im_auftrag_der.pdf
[9] R. Dehousse, “Constitutional Reform in the European
Community: Are there Alternatives to the Majoritarian
Avenue?” West European Politics, Vol. 18, No. 3, 1995,
pp. 118-136. doi:10.1080/01402389508425094
[10] M. Krajewski, “Legal Framework of a European Citizens’
Initiative for a European Right to Water,” B r em en - Erl ang e n,
on file with author, 2010.
[11] U. Di Fabio, “Der Ausstieg aus der Wirtschaftlichen
Nutzung der Kernenergie: Europarechtliche und Verfas-
sungsrechtliche Vorgaben,” Carl Heymanns Verlag, Co-
logne, 1999.
[12] Th. F. Cusack, “A Tale of Two Treaties: An Assessment of
the Euratom Treaty in Relation to the EC Treaty,” Common
19See my critique of the Temelín judgment, Case C-115/08, Oberö-
sterreich v. ČEZ as, [ECR] 2009 I-10265: Joerges [14]; surprisingly
similar S. Wolf [4].
20See European Commission Comm unication (C O M) (2011) 370 final
of 22.6.2011.
21COM (2011) 31 final of 31. 1.2011.
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