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Essential or fundamental? Naming the core elements of state functions

The original aim of the European Union’s existence was to create an economic union and maintain peace on the continent. However, these objectives are now complemented by the promotion of its values and the well-being of its people, so that Member States are „united in diversity”.

In the 21st century, we are facing many challenges at a global level, due to technological developments, the economic situation and geopolitical happenings. Therefore, it is vital to have an open and effective debate at Member State level on the future of the European Union, and on the most pressing issues of integration. This constitutional discourse should include a debate on sovereignty, national identity, and the essential functions of a state, as enshrined in Article 4(2) TEU. With this piece, my aim is to bring attention to a rarely discussed issue of the latter definition: the linguistic interpretation of essential state functions.

To examine the different layers of possible meaning enshrined in the second part of TEU’s Article 4(2), we first must discuss what this provision entails: „[The Union] shall respect [Member States’] essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.”

As we can see, there are three examples of what an essential state function covers. There are several other functions of a state that may be deemed essential. However, the issue of which functions can be interpreted as belonging in this category, hinges significantly on the word used to describe them. To demonstrate what I mean, I would like to bring attention to the different wording used in various languages:

The French version of TEU mentions „les fonctions essentielles de l’État”, the German one says „die grundlegenden Funktionen des Staates”, and the Hungarian version says „alapvető állami funkciók”, when it refers to essential state functions. These four words have slightly different meanings, but drastically change how this definition is interpreted in different Member States, leading to fragmentation of interpretation. Since there is no single official language of the EU, the question of the correct translation and interpretation is vital.

As a Hungarian, allow me to focus on the comparison of the English and Hungarian versions of the text. As I have mentioned, in Hungarian, the phrase „alapvető” is used to describe „essential functions”. However, a more correct English equivalent of that would be “fundamental state functions”. Meanwhile, the English word „essential” is best translated as „lényegi”, meaning the core part of something. This might seem like a made-up problem, but in reality, words have enormous power in the field of law. Therefore, the current language of the TEU enshrines completely different functions in the English version, and according to the Hungarian interpretation.

In the Hungarian text, „alapvető állami funkciók” or „fundamental state functions” provides a much more lenient grouping of state tasks. When it comes to failing to perform these functions, a country does not cease to exist, rather it becomes a “failed or failing state“. Noam Chomsky defines this term as “a state that is unable to provide security for its population, to guarantee rights at home or abroad, or to maintain functioning democratic institutions“.

However, if „essential functions” is the correct interpretation (as it is in the official English version), then the Hungarian text of the Treaty should read „lényegi állami funckiók”. According to this interpretation, without performing all functions that belong in this category, the essence of a state is lost, and it cannot legitimately exist. The difference is, therefore, drastic.

In my interpretation, Article 4(2) TEU actually names three examples of essential state functions, considers a range of these to be within the exclusive competence of the Member States, and safeguards against a possible curbing of state competence. If we take a look at these provision from the European Union’s point of view, rather than a state sovereignty perspective, it is clear that this implies areas of responsibility for the Member State (hence the English version’s use of the words: „sole responsibility”), the performance of which legitimizes their existence, and is at the core of sovereignty.

To reiterate, I believe that essential functions of the state are at the core of state sovereignty, are derived from it, but they also legitimize a country’s existence. On the other hand, fundamental state functions constitute a wider category (of which essential state functions are a small part), and if they are not performed, a state may become fragile or failing. In this case, sovereignty does not cease to exist, but in practice the state becomes incredibly vulnerable – so both the internal and external aspects of sovereignty are seriously compromised.

On the other hand, there are optional functions of the state as well. I would define these as tasks performed by a state for the betterment of citizens’ lives, which can be given over to private entities, the EU, or international organizations, due to their voluntary nature. These tasks also are a part of wider functions of the state, but they are not necessarily fundamental, and are definitely not essential.

The European Union also derives its functions from Member States’ sovereignty. According to the division of competences in the EU, there are exclusive competences, shared competences and supporting competences. All of these powers should be excercised in accordance with the principles of proportionality and subsidiarity. A current problem of the EU, however, is that oftentimes, these principles are not applied, therefore, overreach can occur in many fields.

This is why the constitutional courts of various Member States are delivering judgements in which they question the primacy of EU law, develop an ultra-vires doctrine, or simply are becoming disillusioned with some of the EU’s actions. A few CJEU judgements are also causing a drift between Member States and the EU, with distinguishable responses from scholars.

Cooperation and integration are vital in the current geopolitical climate, amidst so many crises happening. This is why I am of the belief that a balanced approach is required, one which takes into account the differing legal systems and national identities of Member States, while keeping their commitment to the European project on the forefront.

In order to be able to cooperate effectively in such a tense and changing situation, it is absolutely necessary to engage in a discussion about a possible modification of the Treaties. Member States cannot give up their sovereignty.  However, it is crucial to maintain a regular dialogue, an openness to renew the EU, and a commitment to building our common future on a diverse, national basis.

We need to accept that states have certain, non-transferable, essential functions and that “constitutional self-identity is not a universal legal value, it is a feature of specific States and of their communities, of the nation, that does not apply (the same way) to other nations.[1] This is why wording in different languages, interpretation, and truly respecting our diversity are the key to a unified, pro-integration future.

[1] Decision 22/2016. (XII. 5.) AB on the Interpretation of Article E) (2) of the Fundamental Law [110]

Mónika Mercz, JD, is specialized in English legal translation, Junior Researcher at the Public Law Center of Mathias Corvinus Collegium Foundation in Budapest while completing a PhD in Law and Political Sciences at the Károli Gáspár University of the Reformed Church in Budapest, Hungary. Mónika’s past and present research focuses on constitutional identity in EU Member States, with specific focus on essential state functions, data protection aspects of DNA testing, children’s rights and Artificial Intelligence.

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