The future of european federalism
| Author | Ovidiu-Horia Maican |
| Position | University Lecturer, Ph. D, Academy of Economic Studies, Law Department, Bucharest, Romania |
| Pages | 2-10 |
2 OVIDIU-HORIA MAICAN
EUROPEAN UNION LAW
THE FUTURE OF EUROPEAN FEDERALISM
Ovidiu-Horia MAICAN
University Lecturer, Ph. D, Academy of Economic Studies,
Law Department, Bucharest, Romania
Abstract
The topic of european federalism remains actual, mainly if we are considering the european
political background.
There are identity barriers to be defeated, a long way ahead until national identities will stop to
be obstacles to deeper integration, in order to consider the European Union to be desirable and
profitable (economically, socially and culturally).
This goal can be reached if the peoples of Europe understand it.
The problem of federalism must take in consideration the fact that the european social
organization is characterised by the dichotomy of sovereignty versus autonomy, and the european
federalist ideas developed in opposition to sovereignty.
Keywords: European Union , european federalism, models of federalism, political theory
1. General aspects
Federal structures have the advantage in their ability to resolve conflict
between the benefits of unity and the legitimate demands of diversity. in which
people continue to identify primarily with their nations.
The EU can be considered as a system of multi-level governance, where the
sovereignty rights are divided between supranational, national, and subnational
institutions. The constitutional language of federalism is more helpful in analyzing
and discussing the ways in which the division of power is organized among the
different levels of government in the EU.
Federalism means a spatial or territorial division of power between two (or
more) levels of government in a given political system. Both levels must have some
autonomous decision-making powers which they can exercise independently of
each other. The federal units are represented in central decision-making processes.
Law Review vol. VII, issue 1, Januar
y
-June 2017, pp. 2-10
The future of European Federalism 3
2. The structure of european federalism
Altiero Spinelli proposed three political strategies in the field of europen
federalism1:
– the democratisation of the co-decision procedure between the European
Parliament and the Council;
– the enlargement of the fields of supranational cooperation, in order to
transfer more fields from the national level to the supranational level by using the
principle of subsidiarity;
– a clear division of competences between the union and the member states.
Jacques Delors vision on the federation of nation states was based on the basic
principles of federalism, the personal principle and the principle of autonomy
(subsidiarity).
In his opinion, federalism represented two essential rules2:
– the rule of autonomy (subsidiarity), which preserves the identity of each
member state and removes any temptation to pursue unification regardless; and
– the rule of participation, which does not allow one entity to be subordinated
to another, but on the contrary, promotes cooperation and synergy, on the basis of
the clear and well-defined provisions contained in the Treaty.
For Delors, subsidiarity can be applied in two different situations: „on the one
hand, as the dividing line between the private sphere and that of the State, in the
broad meaning of the term; on the other hand, as the repartition of tasks between
the different levels of political power3”.
He believed that subsidiarity as federal principle contained two aspects: „the
right of each to exercise his responsibilities there where he can perform them best,
and the obligation of the public authorities to give to each the means to reach his
full capacity”.
Delors emphasised that subsidiarity is an organizational principle of a federal
state.
EU has become more than an international organization or confederation of
states, without having become a federal entity, however. Few expect the EU
transformation into a fullfledged federation in the sense of a federal state.
In fact, it now shares most features of what is usually defined as a federal
system.
We can put into evidence some aspects of federalism4:
– the EU is a system of governance based on at least two orders of government,
each existing under its own competences and acting directly on its citizens.
1 See E. Boka Rethinking the role of the federalist ideas in the cons truction of Europe (A historical survey),
p. 12.
2 See E. Boka, op. cit., p. 13.
3 See E. Boka, op. cit., p. 13.
4 See T. Borzel What Can Federalism Teach Us About the European Union? The German Experience,
Royal Institute of International Affairs „Paper prepared for the Conference „Governing together in the
New Europe”, Robinson College, Cambridge, p. 3.
4 OVIDIU-HORIA MAICAN
– The European Treaties are giving jurisdiction and resources to these two
main orders of government (levels below the state are increasingly also gaining
leverage and institutional representation,).
– there are provisions for ‘shared government’ in areas where the jurisdictions
of the EU and the member states overlap.
– community law has supremacy over national law.
– european legislation is made on the basis of majority decisions, forcing
individual states to accept decisions against their own priorities.
– the composition and procedures of EU institutions are based not only on
principles of majoritarian representation, but allow for the representation of
‘minority’ views, as smaller EU states tend to be over-represented in both the EP
and the Council of the EU (despite recent adaptations agreed upon in the
framework of the Treaty of Nice).
– the european treaties are not amendable by one government alone, but
require the endorsement by national governments and either the national
parliaments or the peoples by referenda.
– the European Court of Justice (ECJ) adjudicates conflicts between the
European institutions and EU member states, as well as between citizens and their
domestic governments.
3. Theoretical aspects
There are two ideal type models of Montesquieu’s ideas about organizing
political power as séparation des pouvoirs and distribution des pouvoirs5.
Séparation des pouvoirs, or dual federalism, is the model of the United States6.
It emphasizes the institutional autonomy of different levels of government,
aiming at a clear vertical separation of powers. Each government level has an
autonomous area of responsibilities. Competences are allocated according to policy
sectors rather than policy functions. For each sector, one level of government holds
in the same time legislative and executive powers. As an effect, the entire
government structure is duplicated, as each level manages its own affairs
autonomously. The sectoral or dual allocation of policy competences is
complemented by a rather weak representation of the federal units at the central
level of government. The second chamber of the federal legislature is organized
according to the ‘senate principle’: the federal units are represented by an equal
number of directly elected senators, irrespective of the size of the geographical unit
they represent7.
The senate does not reflect the territorially defined interests as represented by
the executives of the federal units, but the functional preferences of the electorate
5 See T. Borzel, op. cit., p. 4.
6 See T. Borzel, op. cit., p. 4.
7 See T. Borzel, op. cit., p. 5.
The future of European Federalism 5
or the political parties within the federal units. The federal units are coordinating
their interests through voluntary co-ordination and co-operation with the central
government (the federal level), usually in the framework of intergovernmental
conferences. Institutional autonomy of each government level, is, supposing a
fiscal system granting federal units sufficient resources in order to exercise their
competencies without financial interventions of the central level. They usually
enjoy comprehensive fiscal autonomy allowing them to levy their own taxes and
hence, to have independent sources of revenue.
Distribution des Pouvoirs or cooperative federalism, is the german model8.
It is based on a functional division of powers among different levels of
government. The central level makes the laws and the federal units are responsible
for implementing them. Ihe vast majority of competences are ‘concurrent’ or
‘shared’. This functional division of labour requires a strong representation of the
interests of the federal units at the central level, not only in order to ensure an
efficient implementation of federal policies, but also in order to prevent federal
units from being reduced to mere administrative agents' of the federal
government. Their reduced capacity of self-determination has as compensation the
strong participatory rights in the process of federal decisionmaking (mainly in the
framework of the second chamber of the national legislature).
The chamber of territorial representation is the Bundesrat (Federal Council)
principle, where federal units are represented by their governments, and in
relation to their population size, but smaller states usually enjoy
overrepresentation.
4. The comparison between the german model and the american model
The dominance of territorially interests in the EU is even more pronounced
than in established systems of cooperative federalism9.
In Germany, the Länder have strong representation in central level
decisionmaking through the Bundesrat, the second chamber of the federal
legislation.
The federation represented by the directly elected Bundestag (first chamber)
and the federal government provide powerful counterweights to this, based not
least on the political identity and legitimacy the federation generates, its
dominance in the legislature, and its spending power.
The European Commission and the EP are not able to counterbalance the
dominance of the Council. Political interest representation in Germany is based on
a well-established system of vertical party integration in both chambers of the
federal legislature. Neo-corporatist forms of interest intermediation grant German
8 See T. Borzel, op. cit., p. 5.
9 See T. Borzel, op. cit., p. 6.
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economic interests privileged access to the policy process. The EU, by comparison,
lacks an effective system of vertical party integration.
The EU lacks three significant elements of a federation, however10.
First, EU member states are still the „masters” of the treaties, in terms of
holding the exclusive power to amend or change the constitutive treaties of the EU
on the basis of unanimity.
Second, the EU has no real „tax and spending” capacity.
Third, it lacks an essential element of democratic control: the EU’s executive is
not yet determined by the EU’s citizens.
The current distribution of policy competencies in the EU is more closed to the
model of cooperative than to „dual” federalism11.
The EU does not have an sphere of competencies in the sense of holding both
legislative and executive responsibilities on its central level. Even in the area of
„exclusive competencies”, the EU cannot legislate without the consent of the
member states (as represented in the Council of the EU). There is no area in which
the member states have completely ceded sovereignty to the EU's central level, to
the extent of excluding their direct participation in decision-making. This is true for
the area of trade policy and in the field of agriculture12.
More than that, nor direct income taxes nor corporation taxes are levied on the
EU level. The EU holds a few independent sources of revenue. EU income is
mainly derived from customs duties and levies charged on imports of third
countries, a percentage of VAT collected by the member states, and financial
contributions based on a fraction of EU states' GNP.
The EU budget is rather small and similar to the one of the individual member
states.
EU expenses are high in the domain of agriculture13
Responsibilities for redistribution and stabilization measures mainly rest with
the individual EU states.
Swiss federalism has a different group of remedies for counterbalancing
territorial interests in central policy-making. The Ständerat, the Swiss chamber of
territorial representation, is directly elected, as a result of which its members tend
to act as representatives of the electorate rather than as defenders of cantonal
interests.
The Swiss cantons, not like the German Länder, have no strong influence on
federal policy-making.
10 See T. Borzel, op. cit., p. 9.
11 See T. Borzel, M.O. Hosli, ) Brussels between Bern and Berlin: Comparative Federa lism meets the
European Union, Webpapers on Constitutionalism & Governance beyond the StateYear 2002/No 2,
p. 9.
12 See T. Borzel, M.O. Hosli, op. cit., p. 9.
13 See T. Borzel, M.O. Hosli, op. cit., p. 10.
The future of European Federalism 7
Even in such a situation, they have significant financial and legislative
autonomy vis-à-vis the federal government, compensating their weak
representation at the federal level14.
The EU has in the same time elements of Swiss and German federalism by
granting the member states an even stronger role in the legislation and
implementation of central policies than the German Länder play while leaving the
member states more financial and legislative autonomy than the Swiss cantons
have15.
This combination has favored the dominance of member state governments in
EU policy-making, which is not effectively counterweighed through the effective
representation of functional interests.
Dual federalism means for the member states more fiscal and regulatory
autonomy, but the weak representation of the member states at the EU level
through a directly elected Senate would render the harmonization of national (tax)
regulations16.
The idea of a second chamber of the EP, in which each member state would be
represented by an equal number of directly elected representatives, has little
support among the member states.
The national governments can not favor the idea of a Senate model, which
would largely deprive them of their current political influence in the EU legislation
process. Nor do the member states seem to be able to agree on a clear delimitation
of policy competencies, which would help to disentangle EU and national
responsibilities and might give each level more autonomy in exercising these
functions.
The EU is likely to maintain its gradual move towards cooperative federalism.
The logic of market integration, paralleled by a strong preference for preserving
the welfare state, favors increasingcentralization of national policy competencies at
the EU level.
In order to compensate for their losses insovereign decision making powers,
EU member states retain strong co-decision powers in European policymaking,
exercised by their governments.
It is a sentiment of skepticism that 700 deputies could be able to effectively
represent the interest of some 500 million citizens in an enlarged Union. It remains
to be seen, however, whether the EP might in fact play such a significant role, and
possibly take over a function similar to the one currently performed by the U.S.
Congress17.
14 See T. Borzel, M.O. Hosli, op. cit., p. 13.
15 See T. Borzel, M.O. Hosli, op. cit., p. 13.
16 See T. Borzel, M.O. Hosli, op. cit., p. 16.
17 See T. Borzel, M.O. Hosli, op. cit., p. 16.
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5. The swiss model
There are three institutional actors in Swiss federalism, the federation, the
cantons and the communes18.
All of them levels of government have specific constitutional tasks though
their nature and extent naturally vary and it is very important to include the
communes because they play an essential role in Switzerland.
The cantons are still the central actors. They are representing the crucial
middle level between the federation and the communes.
The federation is a very important factor. In some aspects, the federal
constitution implies that the ‘Confederation’ means with the whole Swiss political
system, including cantons and communes19.
The division of competences between the three levels of government is mainly
regulated by constitutional rules (federal norms regulate the relationship between
the federation and the cantons, and cantonal norms regulate the relationship
between canton and communes).
The presence of constitutional rules at both federal and cantonal level means
that each of the three levels has legal constraints and has to respect the autonomy
and prerogatives of the other levels and to cooperate with them. Cantonal acts are
subject to judicial review by the Federal Tribunal and federal acts are not and can
only be challenged through referendum.
The division of competences is not very clear and it is not fully specified and it
operates through several categories, fully cantonal, mixed, and fully federal.
The three levels are working together in a cooperative manner by a variety of
ways20.
Cantons have collective veto power over any shift of competences to the
federal level because all amendments to the federal constitution are subject to
approval by a majority of cantons, as well as of the people, in a mandatory
referendum. It happens that popular and cantonal majorities do not coincide and
thus that amendments are not passed.
Political representation takes place via the Council of States, which, has equal
power with the National Council. Members are now elected on party lines and
owe greater loyalty to their party than to their canton.
Cantons also serve as constituencies21.
The role of representation of the cantons is made by the intergovernmental
conferences of cantonal ministers and cantonal presidents, which are the collective
18 See C. Church, P. Dardanelli, The Dynamics of Confederalism and Federalism: Comparing
Switzerland and the EU, Regional and Federal Studies, Vol. 15, No. 2, 163-185, Centre for Swiss Politics,
Department of Politics and IR, University of Kent, p. 172.
19 See C. Church, P. Dardanelli, op. cit., p. 173.
20 See C. Church, P. Dardanelli, op. cit., p. 173.
21 See C. Church, P. Dardanelli, op. cit., p. 174.
The future of European Federalism 9
voice of the cantons. There is no cantonal representation as such in the
seven-member Federal Council (the federal executive).
Cantons share in this via the Council of States, their constitutionally
guaranteed role in the process of pre-parliamentary consultation, by representation
in federal bodies such as the Integration Bureau and via federal-cantonal
conferences.
Cantons are involved in the three key phases of federal law-making in
Switzerland (pre-parliamentary, parliamentary and post-parliamentary)22.
Cantons and communes undertake most of the financing and implementation
of federal laws and policies: there is no local federal administration such as that
which exists in the US. There is also a great deal of inter-cantonal cooperation,
through conferences of ministers and signing of ‘treaties’, known as concordats, on
a range of matters that cantons want to retain as their exclusive competence but on
which some degree of harmonization is also deemed desirable.
Cantonal courts provide the lower level of the judicial system. Legal codes
have now been harmonized at the federal level although the organization of the
judicial system is still left to the cantons, with significant differences existing
between them. Apart from the Federal Tribunal and its specialist sections, there is
no overall federal judicial system. The Federal Tribunal ensures uniform
application of federal law and compliance of cantonal acts with it.
The ‘guaranteeing’ of cantonal constitutions’ conformity with the federal
constitution is performed by the Federal Parliament not by the Tribunal23.
4. Conclusion
Even there were achieved big steps forward in the process of federalization of
Europe, we must accept that today, European Union is a weak federation.
The main aspects of weakness are the small financial resources, small
bureaucracy, lack of coercitive force and the democratic deficit (in some aspects).
For the future, we must take into consideration three aspects.
First is that European Union is not a superstate.
Secondly it must exist a balance between democracy and representation.
Finally it must be resolved the problem of constitutional control.
REFERENCES
[1] Bóka, É. (2005) Rethinking the role of the federalist ideas in the construction of
Europe (A historical survey), Manuscrispt, Corvinus University of Budapest
22 See C. Church, P. Dardanelli, op. cit., p. 174.
23 See C. Church, P. Dardanelli, op. cit., p. 175.
10 OVIDIU-HORIA MAICAN
[2] Börzel, T.(2003) What Can Federalism Teach Us About the European Union? The
German Experience, Royal Institute of International Affairs,, Paper prepared for the
Conference „Governing together in the New Europe“, Robinson College,
Cambridge, 12-13 April 2003.
[3] Börzel, T., Hosli, M.O (2002) Brussels between Bern and Berlin: Comparative
Federalism meets the European Union, Webpapers on Constitutionalism &
Governance beyond the StateYear 2002/No 2.
[4] Church. C., Dardanelli P. (2005) The Dynamics of Confederalism and
Federalism: Comparing Switzerland and the EU, Regional and Federal Studies, Vol. 15,
No. 2, 163-185, Centre for Swiss Politics, Department of Politics and IR, University
of Kent.
