E. U Assesment
“It has been said that “an express “federal” goal was dropped from the final draft of The Treaty of European Union; nevertheless, there can be no doubt that the Union constitutes, at the very least, an embryonic federation”1.
“It has also been said that “the … concept of federalism…does not feel quite right as an explanation of the EU which… is too sui generic, too complex, too multidimensional to fit any such categorisation” 2
The interpretation of the above quotations will require a number of factors to be taken into consideration. This is in regards to analysing in depth the issues of constitutional structures, the concepts of the European Unions (EU’s) current structure, the institutions and their roles. This will require analysis of authoritative sources such as The Treaty of European Union (TEU), case law and also respective views of academics. The main question proposed by the above quotations is to what extent we can say the EU is evolving into a federal structure and if it will ever become a ‘united Europe.’
There are a number of classifications for a constitutional structure. Firstly there is a unitary state a “structure organised under a single central government “. Secondly there is a confederation “a formal association of states loosely bound by a treaty…a central governmental mechanism with specified powers over member states but not directly over citizens”3. From the two concepts listed above it will become apparent if whether the EU falls into the following two categories. A Federal state “a state formed by the amalgamation or Union of previously autonomous or independent sates”4, This advocates a federal system of government similar to that of the United States of America where power is drawn from member states to a central governing authority. Finally intergovernmental structure in which there “a loose association of states retaining sovereign power.” A ‘supra national’ system of government.
Difficulty arises when trying to classify the EU into one these concepts. However, later on in the my analysis it will become apparent as if to why the EU is not part of any classification but merely extracting concepts from each one.
The statement that “an express federal goal was dropped” indicates that all elements of a federal state were removed from the (TEU). The issue here is whether the federal goal was actually dropped or whether it was merely just the ‘word’. The argument proposed is if whether the EU will ever be called a ‘United Europe’. The phrase ‘Unites Europe’ usually identifies a federation, was used by Sir Winston Churchill5. However, it should be noted that when Churchill made the speech he did not envision that the UK would be part of the EU.
In drawing up the TEU John Major refused to use the word federal instead was placed by “creating an ever closer union among the peoples of Europe.”6
The world’s famous ‘federal state’ is the USA and therefore some conjure up the view of a ‘United states of Europe.’ In comparison to the USA there is a Senate, Congress and a Supreme Court i.e. clear indication of power being drawn from a central governing authority. The fact that the EU has more then the three institutions and no two chamber legislature shows that the EU is more a confederation within its institutional structure at this precise moment in time.
To quote that the federal goal was ‘dropped’ would be to give the indication that all elements of a federal state were removed. However, this is not the case as legal concepts of subsidiarity were left in the final draft of the TEU.
Subsidiarity can be found in Article 5 of the TEU. The subsidiarity principle is intended to ensure that decisions are taken closely as possible to the citizens and that constant checks are made as to whether action at community level is justified in light of the possibility available at national, regional or local level.
The conservative government at the time claimed that the principle of subsidiarity is of letting individual states retain decision making powers whenever possible. This shows that a division of power has to be in place. These are powers at the national level and powers at a regional level. This division of powers is a fundamental element of all federal structures.
“Outputs of the institutional system are in the form of regulation and directives which are obligatory and have direct effect on citizens …in principle the possibility to appeal to the Court of Justice (COJ). Clearly this embryo of a political system which lends itself to the democratic and federal method”7.
The issue of direct effect is raised here. This principle has a major impact on the citizens of each member state. It is a legal principle, in which Federal law penetrates into national law. Where European community law overrides as was held in the case of Van Gend en Loos.8 The issue raised in preliminary hearings was ‘can citizens of a member state extract rights form a treaty article such as free movement of work and free movement of goods.’ In answering the questions the COJ held that citizens could confer rights and that community law would have direct effect. Each member state with a constitution was affected by the principles as highlighted in the case of Internationale Handelsgesellschaft9. Limitations were enacted to stop deriving absolute effect from all treaty articles as established in Costa v ENEL10
Article 234 of the TEU set out the mechanism’s for ECJ. However, there was no mention in the TEU the concept of direct effect or the ability of the ECJ to create new law and to fill in gaps in the current situations. With the application of this structure it can be seen that the EU is moving towards a federal structure, further removing an element of national states sovereignty.
The loss of sovereignty was seen to “extinguish democracy’s…dissolving national identities…leading us through the back door into a federal Europe”11 However, contrasted with former British Prime minister’s view in which sir Winston said “it is possible …..To regard this sacrifice of national sovereignty as the gradual assumption by all nations concerned of that larger sovereignty which can alone protect their divers distinctive customs and characteristics and their national traditions”12.
This highlighted the fact that the loss of sovereignty would further protect the nations of the European Union.
One factor that should be considered in that EU has a ‘constitution’ of some form. A document of legal sanctity which gives the institutions their powers. This document is found in all federal structures such as America and Germany. Protection of the fundamental right would be one of the main features of the EU Constitution.
This has been the fundamental starting point were all federal nations are born. Before the declaration on independence and the drafting and signing of the American constitution, the country was a confederation of the states.
After an intergovernmental conference13 member states agreed to the creation of a constitution for the EU; the treaty was signed with a ratification deadline of 2006.
Fundamentally, a written constitution is linked to the idea of a federal state. Currently only 13 members have ratified the constitution, while the other states have held or intend to hold referendums on the issue. A ‘set back’ to the idea of moving towards a federal state as two pro Europe countries14rejected the referendum.
Thus, the question now being, when the ratification will occur?
Additionally, the Union possesses the following characteristics: EU flag, a national day, a national anthem and a single currency; which has only been adopted by member states. Does this not contain all the symbolic factors of a new nation?
The UK15 suggested that it is merely a ‘tidying up process of all the treaties’ in one legal document. Arguably, this will give birth to a new nation, a United Nations of Europe, a federal state minus the word federal. Article 6 gives the EU law supremacy over the law of the member states, affirming the principle of direct effect. Article 1-7 gives the new state legal personality all aspects of a new federal state.
The fact that Douglas-Scott says “is too sui generic, too complex, too multidimensional to fit any such categorisation” may be due to the fact that the TEU created a three pillar structure. The first pillar law based on the original three communities is largely a concept of a confederation; “Pillar 1 relies largely on its supranational institution to make decision”.16
The areas dealt within in the last two pillars were too sensitive to the member states sovereignty to allow the dissolving of these issues into total community control, issues such as foreign policy and military control17 Due to the sensitivity of theses issues, an intergovernmental approach has been adopted by member states.
The second and third pillars respectively of the EU can be seen as decreasing federalist powers of the union, as they are maintaining the autonomy of the nation’s state”18
The fact that it has been said that it does not “feel quite right” to call the EU a federation only means were not a federal state at the moment. This does not mean that we are not evolving into one. It is true, that the EU project is unique and unlike any other structure but not all federal states is the same. 19
This reliance on the supranational and intergovernmental principles shows that at the moment the view taken by Douglas-Scott most closely parallels the situation in the EU at the moment. The structure it is too multidimensional, although it is not an exact model of a confederation it resembles a federal state. Are we therefore moving towards a federal Europe?
Or has the EU gone as far as it can go before becoming a federal state?
Perhaps it seems that a united nation of Europe is inevitably a federal state but minus the word ‘federal’.