eu and federalism intro

8/11/2019 EU and Federalism Intro

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Chapter 1

Federalism: From Classical Theory

to Modern Day Practice in the EUand Other Polities

Finn Laursen

Introduction

Federalism is an old concept, with positive connotations for some and negativeconnotations for others, especially in the context of the European Union (EU).Denitions differ. Countries that have federal governments include the United

States, Canada, Germany, Switzerland and many others. If we think in terms ofstates, federations are states formed by states which retain a certain degree ofautonomy but transfer some authority to the centre to carry out specic functions.

One could also say that there is a vertical division of powers on at least two

levels of government and that both levels of government have a certain degreeof autonomy. Daniel Elazar has seen federalism as a combination of self-rule andshared rule (Elazar 1984).

William Riker suggested the following rule of identication:

A Constitution is federal if (1) two levels of government rule the same land andpeople, (2) each level has at least one area of action in which it is autonomous, and(3) there is some guarantee (even though merely a statement in the constitution)of the autonomy of each government in its own sphere (Riker 1964: 11).

How narrow a denition should be chosen for any political phenomenon can of

course be up for discussion. Such a discussion is not absent in the literature onfederalism. Kenneth Wheare, for instance, has been criticized for choosing a toonarrow denition in his classicFederal Government, where the federal principleis dened as the method of dividing powers so that the general and regional

governments are each, within a sphere, co-ordinate and independent (Wheare1963: 10). It is mainly the notion of independent governmental levels that has beencriticized. The delegation of federal administration to the Lndergovernments,which is an important characteristic of German federalism, for instance, is clearlynot in accordance with Wheares denition (Brecht 1945, Neureither 1959), nor

could it account for an important phenomenon in many federal systems, the so-called cooperative federalism, which puts emphasis on the actual cooperation


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The EU and Federalism4

between the regional and central governments (see, for example, Elazar 1962,Laursen 1976). It seems that autonomy is a better descriptor than independence.

There are big differences between the existing federal systems. Canada, forinstance, is different from the United States. Canada is relatively decentralized and

it has a parliamentary system, not a presidential system. Switzerland has a uniquegovernmental system, where all the major political parties are represented in thefederal government. Some federal states are monolingual; many accommodatemore languages: two in Canada, four in Switzerland, and several more in India,for instance.

Sometimes there is a distinction between confederation and federation (orfederal state) in the literature (see Durand 1955). This distinction grew out of theAmerican experience, where the 13 British colonies rst formed a confederation

under the Articles of Confederation (17811789), but then went on to invent a

more centralized federal system at the Philadelphia Convention in 1787. The newconstitution from Philadelphia formed a federal state.

Efforts to develop theories of pre-1787 federal systems had often run intoproblems because of the concept of sovereignty, which was associated with themodern state as it emerged in Europe after the Peace of Westphalia in 1648. JeanBodin and Thomas Hobbes saw sovereignty as indivisible. Political philosopherssuch as Baron de Montesquieu and Jean-Jacques Rousseau, the latter especially,therefore had problems developing a clear and consistent theory of federalism(Nelson 1987). Both Montesquieu and Rousseau saw federalism as a way for

small states to gain defensive strength against large states. Some other politicalphilosophers, such as Immanuel Kant, saw federalism as a contributing factor tothe creation of international law and peace (Kant 1969). Usually they had somenon-centralized confederation in mind, where participating units would retain theirsovereignty. A further current of thought is the one represented by Pierre-JosephProudhon, who started out as an anarchist but later discovered federalism, in whichhe saw the possibility of organizing an all-engulng system of self-management

growing from autonomous families and communes to the international level(Proudhon 1959 and 1979). Proudhon inspired some of the post-World WarEuropean federalists, including Henri Brugmans, Denis de Rougemont andAlexandre Marc (see, for example, Brugmans 1966a, de Rougemont 1970, Marc1965). In Marcs variant, this current was also called integral or global federalism(Roemheld 1977, Voyenne 1981).

The Federalist Bargain of the Philadelphia Convention

Federalism as a constitutional system of government was born in the UnitedStates. The American experiment with federalism started with a revolutionaryContinental Congress after the Declaration of Independence on 4 July 1776(Bennett 1964). A year later the Congress adopted the rst written constitution, the

Articles of Confederation, which, however, only received the last of the necessary


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Federalism 5

ratications from the 13 states in 1781. Until then the Congress functioned without

a written denition of powers. From 1781 to 1789 it worked under the Articles of

Confederation.The Articles created a unicameral Congress where the member states had one

vote each. The representatives were chosen by the states in the manner decided bythe state legislatures.

Walter H. Bennett sums up the powers of the central authority of theconfederation:

On relatively minor matters a simple majority of the votes was all that wasrequired, while on other matters action could be taken if it were supported by thevotes of nine states. Broad powers in the elds of foreign affairs and defense, as

well as other important powers, were delegated to the Congress. Specically, the

Congress could conclude treaties with foreign countries, declare war, regulateIndian affairs, borrow money, coin money and regulate its value, establish a

postal system, and provide for the punishment of persons guilty of piracy orother felonies committed on the high seas (Bennett 1964: 43).

The fact that majority decisions could be made in the spheres delegated to theCongress shows that the states were no longer sovereign in the meaning of beingcompletely independent. However, the union was weak. It had no power oftaxation and lacked means of coercion. The members of Congress were more like

ambassadors than legislators, and they legislated for states, not individuals.American nationalists wanted to form a stronger union. They asked the states

to send delegates to a convention in Philadelphia in 1787, where the fty-ve

delegates met in secret. To a great extent they came from the professional andpropertied classes and included many lawyers. The average age was only forty-two (Potter 1961).

The nationalists at Philadelphia introduced the so-called Virginia Plan, whichforesaw a highly centralized system of government. The national legislatureshould even have the power to veto laws passed by state legislatures. Among thenationalists we nd General George Washington, Alexander Hamilton and James

Madison (Holcombe 1950).The Virginia Plan meant the negation of federalism as it was then understood.

A contemporary understanding saw federalism as relating to a league or contract.Etymologically it comes from the Latin termfoedus(faith). Federation thus was acontractual, voluntary relationship between states based on good faith (Diamond1961a: 38).

The Articles of Confederation constituted such federalism. Article III declaredthat the said states hereby enter into a rm league of friendship with each other.1Governor Morris explained the distinction between a federal and national,

1 For the text of the Articles of Confederation, see http://www.usconstitution.net/articles.html [accessed: 25 November 2009].


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supremegovernment, the former being a mere compact resting on the good faithof the parties; the latter having a complete and compulsive operation (quoted fromDiamond 1961b: 29).

The delegates at Philadelphia who attached importance to this original

conception of federalism were not willing to accept the Virginia Plan. Theyintroduced the New Jersey Plan. The original federalists, or Confederationists asHolcombe calls them, did want some strengthening of the central authority. The

New Jersey Plan contained more precise denitions of the additional legislative

powers to be granted to the general government. It provided for an independentjudiciary but only a weak executive. It made no provision for the representationof the people of the United States in the general government (Holcombe 1950:1517).

Between the nationalists and confederationists was a third intermediate

group, called Unionists by Holcombe. This group actually had the majority, butit could not agree on a common platform (ibid.: 1720).

Out of the prolonged discussions in Philadelphia grew a compromise, in manyways through gradually modifying the Virginia Plan to make it acceptable to theruling factions in the states. Important in the compromise was the idea of a centrallegislature of two houses, which could give a role to both the national and statemajorities. Oliver Ellsworth, who led the ght for what became known as the

Connecticut Compromise, observed that it was partly national, partly federal.Lacking a name, he called it a more perfect union (ibid.: 20).

In the proposed bicameral system, individuals were represented in the Houseof Representatives and the states in the Senate. The presidency created a strongand stable executive as an improved model of British monarchy. But the AmericanPresident was to be subject to checks and balances. The president was elected for axed term and a presidents veto of legislation could be overridden by a two-thirds

majority in both the Senate and the House of Representatives.Allen M. Potter sums up:

under the new Constitution the national government was granted wide powersover foreign affairs, scal policy, and commercial intercourse; it acted directly

upon citizens, and it was, in part, directly derived from them.

State and local sentiment was too strong in America to allow the framers tostrip the states of all their powers. The states were left to regulate most of theirinternal affairs. The structure of local government was left entirely to the states(Potter 1961: 21).

According to Carl Friedrich, the outcome was:

a novel, hitherto unknown, concept of federalism as an integrated systemof government, a fully institutionalized unity in diversity of interrelatedcommunities, a genuine political order of structured power, and a multicentred


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Federalism 7

authority, democratically legitimized and pluralistically accepting the basic factthat each citizen belongs to two communities, that of his state and that of hisnation at large (Friedrich 1963: 590).

The Federalism Theory of the Federalist

Although the Philadelphia compromise was not the ideal solution for AlexanderHamilton and James Madison, they certainly found it better than the Articles ofConfederation. They set out to defend it together with John Jay in a series ofarticles known as The Federalist (or Federalist Papers) under the pseudonymPublius. These papers appeared over seven months from the autumn of 1787 tothe spring of 1788 in New York newspapers.

It has been argued that The Federalisthas a split personality (Mason 1967).Hamilton in Philadelphia urged the necessity of a general government completelysovereign. He wanted to see state governments reduced to corporations withvery limited powers. Important for Madison was the necessity of providingmore effectively for the securing of private rights, and the steady dispensationof justice. Where Hamilton stressed the need to concentrate power, Madison

believed in balancing and blending it (Faireld 1961: xxvi).

What made it possible for the two men to cooperate successfully was a basicagreement on (1) human nature, (2) the inadequacy of the Articles of Confederation,

and (3) the importance attached to a free society (Mason 1967).Concerning the new constitution, it was argued that it could better fulll the

following three functions than the Article of Confederation:

Assure a free government that could guarantee life, liberty and propertyAssure internal peaceAssure security against external dangers.

To assure freedom, a government was needed. The founding fathers feareddespotism or mob rule. Why has government been instituted at all? askedHamilton in The FederalistNo. 15. The answer given was: Because the passionsof men will not conform to the dictates of reason and justice, without constraint(Hamilton et al. 1999: 106). [W]hat is government itself, but the greatest of allreections on human nature, asked Madison in The FederalistNo. 51. He added:If men were angels, no government would be necessary (ibid.: 319). Althougha central government was needed, it was also important to have checks and

balances built into the governmental system. The different constituent groups ofsociety should keep each other in their proper place. Ambition must be made tocounteract ambition (ibid.).

Concerning internal peace, it was unrealistic to expect peace among a numberof independent states. In The FederalistNo. 15, Hamilton addressed the materialimperfections of the Confederation:

1.2.3.


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The great and radical vice in the construction of the existing Confederationis the principle of LEGISLATION for STATES, in their CORPORATEor COLLECTIVE CAPACITIES, and as contradistinguished from theINDIVIDUALS of which they consist (ibid.: 103).

One of the results of the legislation for states, not individuals, was that decisions,although constitutionally binding on the members of the Union were in practicemere recommendations which the states observe or disregard at their option(ibid.). Hamilton continued later in No. 15:

Government implies the power of making laws. It is essential to the idea of a lawthat it be attended with a sanction, or, in other words, a penalty or punishmentfor disobedience. If there be no penalty annexed to disobedience, the resolutions

or commands which pretend to be laws will, in fact, amount to nothing morethan advice or recommendation. This penalty, whatever it may be, can only beinicted in two ways: by the agency of the courts and ministers of justice, or by

military force The rst can evidently apply only to men, the last kind must of

necessity be employed against bodies politic, or communities, or states (ibid.:105).

Therefore, under the Articles of Confederation, breach of the laws must involvea state of war (ibid.).

In line with this analysis, the prescription followed:

we must resolve to incorporate into our plan those ingredients which maybe considered as forming the characteristic difference between a league and agovernment, we must extend the authority of the Union to the persons of thecitizens the only proper objects of government (ibid.: 33).

Concerning the third function of government, security against external dangers,the Articles of Confederation also had a defect:

The power of raising armies by the most obvious construction of the articlesof the Confederation is merely a power of making requisitions upon the Statesfor quotas of men. This practice in the course of the late war was found repletewith obstructions to a vigorous and to an economical system of defense (The

FederalistNo. 22, in ibid.: 141).

The defect would not exist under the new constitution. The federal governmentwould be able to create a federal army.

The Philadelphia Convention had created a new system of government,although it did not quite t in with established concepts at the time. Madison

analyzed the new federalism in No. 39 and, applying the traditional meaning of


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Federalism 9

federal, he concluded: The proposed Constitution is, in strictness, neither anational nor a federal constitution, but a composition of both (ibid.: 242).

The authors of The Federalistbelieved that there are good and bad politicalinstitutions. The institutional structure developed in Philadelphia was a good one.

The old league type of federalism, on the other hand, had fundamental errors inthe structure. Madison looked at history:

triple and quadruple alliances were formed; but they were scarcely formedbefore they were broken, giving an instructive but aficting lesson to mankind,

how little dependence is to be placed on treaties which have no other sanctionsthan the obligations of good faith (Hamilton in No. 15, ibid.: 104).

European Integration as a Process of Federalization

The model of federalism invented by the Philadelphia Convention later spreadto all parts of the globe: Canada in the north, Brazil and Argentina in the south,Australia in the Pacic, India in Asia, and so on. In Europe, Germany, Austria and

Switzerland have federal constitutions, Belgium has become a complex federalsystem and Spain has moved towards a federal system. Federalism also inspiredmany Europeans when they reected on how to organize inter-state relations

in Europe. Many federalist proposals were produced in the past centuries and

the number increased during World War II (Lipgens 1968). In 1947, Europeanfederalists formed the European Union of Federalists (EUF). When more than800 intellectuals and political leaders met in The Hague in 1948, many ofthem considered themselves federalists. But some advocated more traditionalcooperation in Europe. The rst outcome of the debate in the late 1940s was the

Council of Europe, created in 1949. The British and the Scandinavians, amongothers, were not ready to agree to more binding cooperation and real delegation ofsovereignty (Brugmans 1966b, Gouzy 1968).

But in 1950, a Frenchman, Jean Monnet, convinced the Foreign Minister ofFrance, Robert Schuman, to propose what has become known as the SchumanPlan. In the Schuman Declaration of 9 May 1950, he stated, inter alia:

Europe will not be made all at once, or according to a single plan. It will bebuilt through concrete achievements which rst create a de factosolidarity. Thecoming together of the nations of Europe requires the elimination of the age-old opposition of France and Germany. Any action taken must in the rst place

concern these two countries.

With this aim in view, the French Government proposes to take action immediatelyon one limited but decisive point. It proposes to place Franco-German

production of coal and steel as a whole under a common High Authority, withinthe framework of an organisation open to the participation of the other countries


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of Europe. The pooling of coal and steel production should immediately providefor the setting up of common foundations for economic development as a rst

step in thefederation of Europe, and will change the destinies of those regionswhich have long been devoted to the manufacture of munitions of war, of which

they have been the most constant victims.

The solidarity in production thus established will make it plain that any warbetween France and Germany becomes not merely unthinkable, but materiallyimpossible.

In this way there will be realised simply and speedily that fusion of interestswhich is indispensable to the establishment of a common economic system; itmay be the leaven from which may grow a wider and deeper community between

countries long opposed to one another by sanguinary divisions. By pooling basicproduction and by instituting a new High Authority, whose decisions will bindFrance, Germany, and other member countries, this proposal will lead to therealisation of the rst concrete foundation of aEuropean federationindispensableto the preservation of peace (italics added).2

The Schuman Declaration, which led to the creation of the rst European

Community, the European Coal and Steel Community (ECSC) in 1952, saw aEuropean federation as the goal of European integration. This objective would

be achieved by a process of concrete steps that would create solidarity. The HighAuthority, a supranational body, would make binding decisions and spearhead the

process.Jean Monnet, the genius behind the plan, did not believe in intergovernmental

cooperation. Supranational institutions were seen as necessary. As early as 1943,he wrote to the Committee of National Liberation in Algiers:

There will be no peace in Europe if States re-establish themselves on the basisof national sovereignty, with all that it implies by way of prestige policies andeconomic protectionism . The countries of Europe are too small to give their

peoples the prosperity that is now attainable and therefore necessary. They needwider markets . To enjoy the prosperity and social progress that are essential,the states of Europe must form a federationor a European entity which willmake them a single economic unit (Monnet 1978: 222, italics added).

During the Intergovernmental Conference that negotiated the Paris Treatyestablishing the ECSC, which was chaired by Monnet, he told a recalcitrantrepresentative of the Netherlands that intergovernmental co-operation had neverled anywhere:

2 Declaration of 9 May 1950. Available at: http://europa.eu/abc/symbols/9may/decl_en.htm [accessed: 23 November 2009].


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Federalism 11

remember that we are here to build a European Community. The supranationalAuthority is not merely the best means for solving economic problems: it is alsothe rst move towards afederation(ibid.: 328, italics added).

The Treaty of Paris was signed on 18 April 1951 in Paris. It did not use the termfederation. In a quote from the preamble:

RECOGNIZING that Europe can be built only through practical achievementswhich rst create de factosolidarity, and through the establishment of common

bases for economic development,

ANXIOUS to help, by expanding their basic production, to raise the standard ofliving and further the works of peace,

RESOLVED to substitute for age-old rivalries the merging of their essentialinterests; to create, by establishing an economic community, the basis for a

broader and deeper community among peoples long divided by bloody conicts;

and to lay the foundations for institutions which will give direction to a destinyhenceforward shared,

HAVE DECIDED to create a European Coal and Steel Community (quoted fromibid.: 357).

The American federal state was created by a constituent assembly througha kind of big bang. The European Union has been created gradually, startingwith the ECSC in 1951. Institutions should give direction to achieving practicalachievements, creating a real solidarity, a sense of community among the peoplesof Europe. It was very much an open contract which required a lot of decisionslater. But the Schuman Declaration put Europe on a new trajectory.

The political science theory of the new process of integration in Europe wasrst developed by Ernst Haas in The Uniting of Europe. He saw the ECSC asa symbiosis of interministerial and federal procedures (Haas 1958: 526). Heexpected the end result of political integration to be a new political community,superimposed over the pre-existing ones (ibid.: 16). Haas theory, which becameknown as neo-functionalism, expected task expansion and spillover, aidedespecially by the new High Authority, to drive the process of integration forward.

Carl Friedrich, another American political scientist, argued that a process offederalization had started in Europe with the creation of the ECSC. He suggestedthat federalism should not be seen as a static pattern:

Instead, federalism should be seen as the process of federalizing a politicalcommunity, as the process by which a number of separate political organizations,

be they states or any other kind of associations, enter into arrangements formaking joint decisions on joint problems, or reversely the process through which


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a hitherto unitary political organization becomes decentralized to the pointwhere separate and distinct political communities arise and become politicallyorganized and capable of making separate decisions on distinct problems(Friedrich 1962: 51415).

Common objectives, interests and needs, including security threats and economicadvantages, would condition a process of federalization. Moreover, Friedrichmentioned nationalism as a factor of federalization in the United States, but inEurope it was a divisive force. Institutions were also seen as important, and,

particularly, a common executive can become the spearhead of the process itself(ibid.: 51922).

Space does not allow a prolonged discussion of the theory of federalism andthe EU, but I thought it useful to start with a discussion of the federalism theory

of The Federalist. Some of the founding fathers of the European Communitieswere inspired by the idea of dividing sovereignty. They did not believe inintergovernmental cooperation. They created a new system in Europe with thepooling and delegation of sovereignty to common supranational institutions(terms used by Moravcsik 1998). If we use William Rikers denition given above

understood as two levels of government ruling the same land and people theEuropean Communities created a federal system. Is there also a guarantee of thecontinued autonomy of both the national and central levels of government? I

believe there is. The Communities have continued to adapt to new situations and

challenges, both widening and deepening the process of integration. Since thebeginning, in the early 1950s, integration in Europe has expanded its functionalscope. The Treaties of Rome in 1957 added the European Economic Community(EEC) and the European Atomic Energy Community (EAEC, or EURATOM).Later treaty reforms added new common policies. Membership of the Communitiesexpanded over the years and there were continuous efforts to upgrade theinstitutional capacity of the common institutions. The use of qualied majority

voting (QMV) in the Council of Ministers was increased. The powers of theEuropean Parliament were enlarged. The European Court of Justice (ECJ) playedan important role by interpreting Community law in a federal direction, especially

by attributing primacy and direct effect to Community law in the 1960s.

The EUs Pillar Structure and Federalism

Despite the relative success of European integration, federalism has remaineda controversial concept. Nationalists do not believe in sharing sovereignty.Whenever the term federalism has been used it has elicited strong opposition,especially in the UK.

In 1992 the Maastricht Treaty created the European Union (EU) (Laursen andVanhoonacker 1992). How did that affect the federal character of the commoninstitutions? The Maastricht Treaty is based on a pillar structure (see Figure 1.1).


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Federalism 13

Pillar one includes the European Economic Community, which was renamedthe European Community. It also incorporated the plans for an Economic andMonetary Union (EMU), including, in stage three, the creation of a single currency.The euro was subsequently introduced in 1999. The rst pillar therefore is rather

federal in nature. It applies the so-called Community method with autonomousroles for the Commission and the ECJ. Being supranational, it creates two levels ofauthoritative decision-making. There is legislation for individuals, not just states.Regulations are like federal laws, general and directly applicable. The treaty basegives a strong guarantee for the survival of this system. It requires unanimity tochange the treaty. It is true that a member can leave if it so chooses, even if thetreaty didnt state this prior to the now-adopted Lisbon Treaty, but exit will havecosts given the high degree of interdependence attained.

The second and third pillar created by the Maastricht Treaty, however, wereintergovernmental or confederal. The second pillar created a Common Foreignand Security Policy (CFSP). The third pillar established cooperation in Justiceand Home Affairs (JHA). The member states retained their sovereignty in thesetwo pillars and remained by far the most important actors. Decisions normallyrequired unanimity or consensus. The Commission and ECJ had only limited orno involvement. No legislation was foreseen, only common positions and jointactions as long as everybody could agree.

Even with the entry into force of the Lisbon Treaty on 1 December 2009, CFSPremains intergovernmental. Although the treaty abolishes the pillar structure,separate decision procedures will remain for CFSP (Art. 24 TEU). So a de factoseparate pillar still exists for CFSP. It remains confederal. However, a process offederalization has taken place for JHA, starting with the Treaty of Amsterdam,which entered into force in 1999. That treaty moved most areas of JHA, including

Figure 1.1 The Pillar Structure of the Maastricht Treaty


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asylum and immigration, to the rst pillar, leaving criminal justice and police

cooperation in a slimmer third pillar. Now the Treaty of Lisbon has introduced theCommunity method for those remaining parts of JHA, giving the Commission astronger role of initiative, introducing majority voting in the Council, and making

the ECJ competent to judge cases (Laursen 2009).When the Maastricht Treaty was being negotiated, the Luxembourg Presidency,

in Article A of a draft treaty dated 18 June 1991, proposed that This Treaty marksa new stage in a process leading gradually to a Union with a federal goal (textin Laursen and Vanhoonacker 1992: 358). The Luxembourg Draft was based onthe pillar approach. When the Dutch took over the presidency during the second

part of 1991 they prepared a new draft treaty in September 1991 that did notapply the pillar approach but instead proposed a more unied treaty. Article 1

was reformulated this way: By this Treaty, which marks a new stage in a process

leading to a European Union with a federal goal, the High Contracting Partiesestablish themselves a EUROPEAN COMMUNITY (text in Corbett 1993: 329).Because the new Dutch proposal was not based on the pillar approach, most of theother member states rejected it and the Dutch reverted to the previous proposalfrom the Luxembourg Presidency. The text from the Luxembourg Draft wastherefore reintroduced as the basis of the negotiations. The federal goal wasincluded in the nal draft from the Dutch Presidency, which went to the nal

summit in Maastricht on 10 December 1991. Here the British, the Danes and thePortuguese objected strongly to the federal goal being included in the treaty.

Federalism became known as the F-word, especially in the British popular press.Since a new treaty requires consensus, the federal goal was removed. So insteadthe Maastricht Treaty stated: This Treaty marks a new stage in the process creatingan ever closer Union among the peoples of Europe, where decisions are taken asclosely as possible to its citizens (text in ibid.: 429; see also Laursen et al. 1992:21).3The compromise in Maastricht thus deleted the term federal but added areference to the so-called subsidiarity principle. This principle was spelled out inmore detail in Article 3B of the Maastricht Treaty:

The Community shall act within the limits of the powers conferred upon it bythis Treaty and of the objectives assigned to it therein.

In areas which do not fall within its exclusive competence, the Community shalltake action, in accordance with the principle of subsidiarity, only if and in sofar as the objectives of the proposed action cannot be sufciently achieved by

the Member States and can therefore, by reason of the scale or effects of theproposed action, be better achieved by the Community.

3 The Treaty of Rome, which established the EEC, had used the terminology thatthe members were Determined to lay the foundations of an ever closer union among the

peoples of Europe. For the text, see, for instance: http://eur-lex.europa.eu/en/treaties/index.htm [accessed: 26 November 2009].


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Federalism 15

Any action by the Community shall not go beyond what is necessary to achievethe objectives of this Treaty (Council of the European Communities 1992: 1314).

The principle was sufciently vague to satisfy everybody. The minimalists saw itas limiting the powers of Brussels. Federalists saw it as a principle of federalismwhich would allow powers to be transferred to the Union when considerednecessary to reach optimal decisions. Many works on federalism, especiallycontinental European works, discuss the principle (see Hraud 1968: 4851,Deuerlein 1972: 31926). It was the German Lnderwhich suggested that the

principle be included in the treaty.The federalist idea was put back on the agenda in 2000 by German foreign

minister Joschka Fischer in his now famous speech at Humboldt University in

Berlin on 12 May 2000 (Fischer 2000).Fisher saw a tension between the communitarization of the economy and

currency on the one hand, and the lack of political and democratic structures onthe other. The new geopolitical reality in Europe after 1989 made enlargementa necessity, but enlargement would require decisive and appropriate institutionalreform (ibid.: no pagination). So he outlined his personal vision:

there is a very simple answer: the transition from a union of states to fullparliamentarisation as a European Federation, something Robert Schuman

demanded 50 years ago. And that means nothing less than a EuropeanParliament and a European government which really do exercise legislative andexecutive power within the Federation. This Federation will have to be based ona constituent treaty (ibid.: no pagination).

The federation that Fischer called for would be a lean European Federation.There would be a division of sovereignty between the Union and the nation-states based on the principle of subsidiarity. This would not mean the abolition ofthe nation state: the nation-state, with its cultural and democratic traditions,will be irreplaceable in ensuring the legitimation of a union of citizens and statesthat is wholly accepted by the people (ibid.: no pagination).

In case the majority of member states would not be ready to take the leap intofull integration, he wondered whether a smaller group of member states mightemerge as an avant-garde or centre of gravity which might push ahead (ibid.:no pagination).

Fishers speech sparked a new debate on the nalit politique of Europeanintegration (Marhold 2002).

The idea of mentioning federalism in the EU treaty reappeared during thenegotiations of the so-called Constitutional Treaty, which was eventually rejected

by the French and Dutch voters in referendums in May and June 2005.The Constitutional Treaty was rst elaborated by a European Convention,

with representatives of the member states, national parliaments, the European


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Parliament and the Commission (Laursen 2008). The draft constitutional treatytook shape gradually, largely based on successive proposals from the Praesidiumand its President, Valry Giscard dEstaing.

In a rst proposal from the Praesidium, put forward on 28 October 2002, the

following text was proposed for inclusion in the preamble:

A Union of European States which, while retaining their national identities,closely coordinate their policies at the European level, and administer certaincommon competences on a federal basis (European Convention 2002: 8).

When the rst draft articles were proposed on 6 January 2003, the text took this

form:

Reecting the will of the peoples and the States of Europe to build a common

future, this Constitution establishes a Union [entitled ], within which thepolicies of the Member States shall be coordinated, and which shall administercertain common competences on a federal basis (European Convention 2003a:2).

But when a new draft text appeared on 26 May 2003, it stated:

Reecting the will of the citizens and States of Europe to build a common

future, this Constitution establishes the European Union, on which the MemberStates confer competences to attain objectives they have in common. The Unionshall coordinate the policies by which the Member States aim to achieve theseobjectives, and shall exercise in the Community way the competences theyconfer on it (European Convention 2003b: 2).

The federal basis had disappeared. It had been replaced by the less well-dened

Community way. Not even the ever closer Union from the Treaty of Romehad been included instead of the federal basis. We basically see a repeat of theMaastricht Treaty negotiations. The nationalists could not accept the F-word.The Draft Treaty establishing a Constitution for Europe, adopted by consensus bythe European Convention on 13 June and 10 July 2003, retained the formulationfrom 26 May (European Convention 2003c).

What happened? According to one account, Giscard met British Prime MinisterTony Blair on 19 May in London. He knew that the British could veto the drafttreaty. On an earlier occasion he had toldLe Monde: I am doing my best so thatour text of the Constitution is compatible with the demands of Britons desirous of

participating in the life of Europe (quoted in Norman 2005: 230). It was duringthe three-day meeting of the Praesidium that followed the meeting with Blair thatthe F-word disappeared (ibid.: 231).

Giscard gave a slightly different explanation, claiming that the change of wordsafter his meeting in Downing Street was une heureuse concidence (Giscard


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Federalism 17

dEstaing 2003: 34). He claimed that the word federal was the exact word. Therole of the EU in trade policy and monetary policy was federal, and the wordfederal had a valeur pdagogique. But the reference to federal had found lesssupport in the Convention among the new member states from central and eastern

Europe and, especially, le blocage smantique de la communaut anglo-saxonnehad stayed categorical (ibid.). So the British and new member states had not beenable to accept the designation federal even if it was the right word.

The draft constitutional treaty approved by the ensuing IntergovernmentalConference (IGC) in June 2004 largely retained the formulation in the preamblefrom the European Convention: in the Community way was changed to on aCommunity basis (Council of the European Union 2004: 19).

To complete this story, the preamble of the Lisbon Treaty, which replaced theConstitutional Treaty after it was rejected by French and Dutch voters in 2005 in

referendums, reverted to the old formula from the Treaty of Rome with a referenceto subsidiarity:

RESOLVED to continue the process of creating an ever closer union amongthe peoples of Europe, in which decisions are taken as closely as possible tothe citizens in accordance with the principle of subsidiarity (European Union2008: 16).

Sometimes people say that words are not important. The story I have just toldsuggests otherwise. Even if an important part of the EU qualies as federal

according to many political science conceptions of federalism, the word hasbeen banned from EU treaties by nationalists in the UK, Denmark and nowincreasingly in some of the new member states in central and eastern Europe.

Scholars are allowed to call a spade a spade. The old Communities, and pillarone of the Maastricht Treaty now the greatest part of the EU according to theLisbon Treaty have clear federal traits.

The moment the EU polity starts resembling a federal system it can be studiedon the basis of theories from comparative politics (see Hix 2005) and comparedwith federal systems (see, for example, Sbragia 1992 Goldstein 2001, Nicolaidisand Howse 2001, Menon and Schein 2006 and Dosenrode 2007). Such comparisonsare becoming increasingly important as the EU moves towards more federalismwith clearer divisions of powers and various institutional checks and balances.The incremental process of federalization has continued after Maastricht, with thetreaties of Amsterdam, Nice and Lisbon.

Overview of Contributions to this Volume

In Chapter 2, Steven Wolinetz discusses the pros and cons of treating the EU ina comparative context. Different research designs, like most-similar-systems andmost-different-systems designs, are discussed. How do we use similarities and


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differences among political systems to make conclusions about those systems?Can we compare and what can we gain from comparing the EU with otherregional governance systems on one hand or federal states on the other? The EU isnot a typical international organization, nor is it a federal state, even if it has state-

like features. Still, comparisons can be useful in various ways. In the empiricalparts, Wolinetz compares the EU with other political systems, including federalstates. Comparing the EU with Canada he said: Although [the EU] exhibits manyof the stresses and strains of a contested federation such as Canada ..., it is neithera state nor a federation (p. 33). At the time of the inaugural conference in Halifaxin April 2009 Wolinetz had argued that Canada shares with the EU two politicallyinteresting characteristics: uneven support bordering on a democratic decit and

constitutional processes as deadlocked and stalled as the EUs currently appear tobe. These words were spoken before the Lisbon Treaty was accepted in a second

referendum in Ireland in October 2009. But, arguably, even the Lisbon Treaty hasnot solved some of the EUs fundamental problems. Both the EU and Canada face

problems adapting their constitutional frameworks to new challenges.In Chapter 3, Ingeborg Tmmel discusses the sui generis nature of the EU

federal arrangement. The EU can be seen as a federation, however, it is not afederal state: in the EU the upper government level is by no means sovereign. Itlacks the competence to generate its own competences. Transfer of competencesdepends on the lower level. Treaty reforms require consensus among the memberstates. On the other hand, it is more than a confederation. It has created powerful

supranational institutions. Tmmel moves on to take a look at the Lisbon Treaty,which has basically left the nature of the EU unchanged. It includes institutional

provisions to assure the compliance of the principle of subsidiarity by givingnational parliaments a monitoring role. The European Council becomes a formal

body with an elected president. The capacity of the Council is improved byextending qualied majority voting. The Commission is not much affected, but the

position of the European Parliament is improved by extension of the co-decisionprocedure. All in all, the treaty largely conrms the powers of the member states.

The EU has created a new model of political order and its exibility should be

seen as an asset.In Chapter 4, Chien-Yi Lu engages a debate with those scholars who see the

EU as the fourth branch of member state governments. These scholars, includingGiandomenico Majone and Andrew Moravcsik, tend to argue that the EU doesnot have a democratic decit. The EU can be compared to independent agencies

inside the member states, such as central banks, that are independent and expectedto promote the general interest, i.e. nd Pareto optimal solutions. Dr Lu nds three

major problems with this thesis: i) independence does not automatically translateinto Pareto efciency, ii) representation remains relevant and iii) regulatory

policies are also redistributive. The fourth branch thesis puts emphasis on outputlegitimacy, but input legitimacy is also important. Seen this way, the EU does havea democratic legitimacy problem. Mechanisms are needed to determine what is inthe best interest of the EU. This cannot be left to independent experts, as control


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Federalism 19

over these aspects can be captured by special interests if there is no active publicinvolvement. Despite the non-existence of a European demos, there is still roomfor improving democracy at the European level.

After these early chapters focusing on the EU polity, the next chapters look at

policymaking or modes of governance in particular policy elds, comparing theEUs policies with policies of both international organizations and federal states,and those within Canada in particular.

In Chapter 5, Robert Boardman compares environmental policy in the EU andCanada. He focuses on three questions: What differences do divergent variantsof federalism make? Is some variant better at promoting environmental goals?What is the value of comparison? Comparison is found to be useful. Readersnot very familiar with Canada will nd it interesting to learn that the provinces

in Canada play a very important role. Both convergence and divergence can be

found. Differences arise from variable environmental and ecological situations,economic structures, values of actors and so on. On some issues, such as climatechange, Canada has in recent years adopted positions closer to the United Statesthan the EU.

In Chapter 6, Paulo Canelas de Castro looks at water crisis policy in theEU and the Southern African Development Community (SADC). Rivers forman important part of the analysis, as shared rivers call for cooperation and joint

policies. Such policies have developed in both regional settings, with water policybeing one of the driving forces of integration among the SADC member states. A

great drought in 1992 lead to the adoption of the 1995 Water Protocol on SharedWatercourse Systems in the Southern African Development Community. Both theEU and SADC have witnessed intensication of cooperation; however, although

the role of the SADC Secretariat has grown, it has not been able to be the powerfulfacilitator that the Commission has been in the EU.

The later chapters deal with employment and health policy, comparing theEU with Canada. Both are policy areas where member states or provinces playimportant roles.

In Chapter 7, Donna Wood compares modes of governance in employmentpolicy. The analysis looks at four modes, viz.hierarchy, negotiation, competitionand cooperation. In this policy area there is shared responsibility in the two systems,

but while the EU level has increasingly become involved with employmentpolicy, the trend in Canada in recent years has been towards devolution to theprovinces. Wood concludes that negotiation is very important in both systemsand that cooperation is also vital. But differences emerge in connection with theother modes: hierarchy is the most important mode used in Canada but the leastimportant in the EU, and competition is used in the EU but almost never in Canada.These ndings say a lot about similarities and differences in the two systems.

The capacity of the federal government in Canada to tax compared with the EUsminiscule budget is an important factor. While Canada has shared-cost federalismemployment policies, the EU depends on national welfare states.


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In Chapter 8, Katherine Fierlbeck turns to health policy, another area wheremember states and provinces have traditionally dominated. In both the EU andCanada, federal level policies have started to play a certain role. Resources play a

part, but the judiciary has been a very important actor. In the EU case, the moment

health care is seen as a service, the freedoms of the internal market apply, withcertain limits that are open to interpretation. It has largely been up to the ECJ tointerpret the rules in a number of important judgments. As the health market wasliberalized, the member states responded with new governance mechanismsto improve coordination, cooperation and communication. Something similar hashappened in Canada.

In Chapter 9, Nico Groenendijk compares benchmarking and peer reviewin the EU and the OECD. In the OECD, these techniques were used from their

beginnings in the 1960s, while they are more recent tools to the EU. The two

organizations are different: the OECD is clearly an intergovernmental organizationthat produces a lot of policy studies while the EU is supranational and producesactual policies. Since the start of the so-called Lisbon strategy in 2000, which aimsto make the EU more competitive, these techniques have been part of the so-calledOpen Method of Coordination (OMC). Various pitfalls are outlined and then usedto take a critical look at the EUs use of these techniques. They are used when themember states are not ready to use the Community method. These techniques,applied, for instance, in employment policy, are more voluntary, but also normallyless efcient and effective. Still, they allow for a learning process to take place.

In Chapter 10, Eiji Yamashita compares the EUs response to the currentnancial crisis to Japans, and to a lesser extent Swedens, responses to nancial

crises in the 1990s. Sweden responded quickly and successfully, but Sweden is asmall country with a welfare state. Japan responded slowly and in inadequate ways,

partly because of US pressures. The EU responded slowly to the current crisis,but several member states adopted comprehensive nancial rescue packages, and

eventually in June 2009 the EU decided to establish a new European FinancialSupervision System. The division between the 16 Euro members that have pooledmonetary policy and the rest could pose some problems, and the fact that memberstates remain responsible for scal policy could also be a problem. Yamashita also

notices similarities between the two crises. They started with a collapse of housingloans and they originated in the US. Indeed, within the chapter, the US is stronglycriticized for its irresponsible macro-economic policies.

In Chapter 11, Roberto Domnguez looks at security in the Atlantic areaand compares the security policies of the US, NATO and the EU. He applies ananalytical framework developed by Emil Kirchner and James Sperling. Securityinstruments can be persuasive or coercive and functions can be based in institution-

building or conict resolution. The chapters table outlines four different kinds

of policies: prevention, protection, assurance and compellence. We are used tothinking of the US as the superpower with a lot of military hardware. The EU hasonly slowly started developing a security policy from the Maastricht Treaty, butsped up the process from 1999 on after the Kosovo crisis. Nonetheless, the EUs


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Federalism 21

military capacity is still limited. Security, however, is a wide concept, not just aquestion of territorial defense or peace enforcement. The applied table gives agood picture of the functional division of labor between the three security actorsin the Atlantic area.

In Chapter 12, Michael Johns gives a critical analysis of the EUs immigrationpolicy. Much of the analysis is focused on the fourth freedom of the internalmarket, the free movement of people inside the EU, which goes back to the Treatyof Rome establishing the European Economic Community in 1958. This freedomgave rise to fears on the part of the member states when the EU enlarged in 2004to include eight states in central and eastern Europe as well as Cyprus and Malta.The fear was that there would be huge movements of people from the east to thewest. Johns sees the rather long transition periods as problematic, even talkingabout double standards. He looks at the difculties some internal migrants have

in the EU, such as those experienced by Finns in Sweden and Poles in Ireland.Clearly, immigration is a politically sensitive and difcult issue, and it forms part

of the current efforts, particularly since the Amsterdam Treaty, to create an Area ofFreedom, Security and Justice (AFSJ). The freedom of movement of people insidethe EU is unique among regional integration organizations but would normallyexist inside federations, thus it is a federal trait of the EU. Despite the problemsfaced by migrants, many Europeans see this freedom of movement as a greatachievement, even if the number of people using it is not huge.

Finally, in Chapter 13 the editor offers some concluding thoughts about the EU

and federalism, asking especially whether a constitutional equilibrium has beenreached in the EU.

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