Bulletin n. 2/2008
September 2008
CONTENTS
  • Section A) The theory and practise of the federal states and multi-level systems of government
  • Section B) Global governance and international organizations
  • Section C) Regional integration processes
  • Section D) Federalism as a political idea
    • Toulemon Robert
    In What Respects will European Federalism be Different?
    in Federalist Debate (The) , Year XXI, n. 1, March ,  2008 ,  6-10
    According to many superficial observers of European reality, the widening of the European Union (EU) would mean the end of all perspective of federal evolution. On the contrary, the increase of the number of its members leaves no choice but between either paralysis or federalism. Some people, for example in France, believe they can find an alternative solution in a directorate of the bigger States. They forget that such an orientation is rejected by the others and that its efficiency is far from being guaranteed. Its first result would be to foster inner tensions and push smaller states towards an extreme pro-American attitude. This return to interstate tensions would be a definite step backward. It would not allow Europe to achieve a real political presence. Federalism is the organizational form the best adapted to the community of peoples and States of Europe, which corresponds the most exactly to the motto proposed for the Union, "Unity in Diversity", combining the greatest autonomy of the federated entities, in other words subsidiarity, a federalist term par excellence, and a supra-state authority in the fields of common competence. However, to federate nations several of which in turn have occupied firstrank positions in the world and which still believe themselves to be first rate powers, is a difficult undertaking. The federal systems of the American States, of the German Länder, of the Swiss Cantons, of the Canadian provinces, of the States of Australia or India, while they provide useful examples, cannot simply be transposed to Europe. In the present period of constitutional crisis we are going through, it is not without interest to consider the lessons offered by historical experiences in federalism, but also to define the peculiar features of a future European federal model. The lessons we can draw from historical experiences The historical examples are first to be considered from the point of view of the institutions. But how much freedom of choice is kept by the federated entities in their inner policies is also a matter to be carefully considered. Institutions The first experience to be considered is ours. The distribution of competences between different levels, some being exclusive and others shared, the decision-taking by majority vote, the primacy of community law over States' law, the existence of a common currency managed by a Central Bank are the federal elements to which the EU owes its main achievements. In the same way, the semi-proportionality of citizens' votes in the Council and representations in the Parliament is not far different from the current systems of representation of federated entities in existing federations. Some combine equal representation in one assembly (the Senate in the US, the Council of States in Switzerland) with the representation of populations in another assembly (the House of Representatives in the US, the National Council in Switzerland). Others add to the assembly representating the populations another chamber where the federated States have a semi-proportional representation; such is the case in Federal Germany. The provision in the European Reform treaty of a double majority of States and population in the Council of Ministers is inspired by the same philosophy. Indeed, the ambition of federal systems is to find a balance between the equality of States and the equality of citizens. History tells us that this equilibrium is not easy to reach nor to preserve. The crises of federalism may lead to conflicts; the most bloody was the one which tore the US during the Civil war. The adversaries of federalism put forward these crises to support the thesis that all federations are threatened by a sudden breakdown. They quote the example of the Soviet Union or Yugoslavia. So doing they forget that those federations were purely formal constructions which hardly masked the dictatorship of a single party and a crushing hegemony in the former USSR as in the present Federation of Russia. There remains that keeping the balance between the influence of the most populated and less populated States is as essential as the balance between the federated States and the federation. The tensions peculiar to federal systems result most of the time from the sharing of competences and their exercise. The feeling that "Brussels" meddles too much in minor matters which could remain in the field of responsibility of the States, or even local entities, feeds the demand for a better respect of the subsidiarity principle. The Reform treaty gave national Parliaments a power of caution in this field, the last word pertaining to the Court of Justice. The existence of a strong judiciary is necessary to the good functioning of federalism. The greatest merit of federalism is to substitute judicial arbitration to armed conflicts. This substitution means that the arbiter must be recognized as independent of the federated entities and of the federal institutions as well. The independence of judges depends as much on the duration of their mandate and the conditions of its renewal as on the authority who designates them. The extreme solution is the appointment for life, as in the Supreme Court of the USA. Until now the member-States of the EU have refused to extend the competence of the Court of Justice to matters of defence and foreign policy; in the same way they refuse to extend the competence and the power of initiative of the Commission to these same fields. As it had been remarked by the founder of the College of Bruges, Henri Brugmans, until now Europe has just practised federalism the wrong way round. Without competence for the questions which normally pertain to federalism, it often deals with matters which, somewhere else, concern the States themselves. The formula contemplated by the Reform treaty that creates a High Representative for Foreign and Security Policy linked to the Council and the Commission, with a diplomatic service of its own, would be a real step toward a federalism going in the right direction. Another lesson drawn from federal examples: the necessity to have a strong executive at the head of the federation, strong meaning legitimate and visible. In this respect the Reform treaty marked only a limited progress. The creation of a President of the European Council with a larger mandate and no longer fulfilling national functions is useful, but the appointment procedure is far from democratic and creates a duality with the president of the Commission. However, the supporters of a Federal Europe must see to it that these dispositions are adopted, whatever the fate of the Reform treaty. What Autonomy for the States? The promoters of federalism have to answer the fundamental question posed by their adversaries: what autonomy will be left to the federated States in a European Union? From this point of view the experience of the other federal systems deserves to be considered. Everywhere education remains the concern of the federated entities, as well as, for an important part, the tax system, welfare policies and protection of the environment. We may, for instance, notice the choice by California to endorse the Kyoto Protocol that the USA government has not ratified. Be that as it may, political and social choices are basically made or arbitrated by the federal elections in the Federal State. In a European Federal Union these choices will be decided, for a large part, as they are now, by national elections, but the importance of European elections should increase together with the competences of the Union. However that may be, European states will keep more latitude in the choice of their economic, social or environmental model. For example, differently from other federal states, there is a consensus about maintaining at the national level the mechanisms of social welfare and to exclude the taxes on individuals from a fiscal harmonization, however advisable the latter may be. The system of ownership of firms will equally remain a national competence, even if the necessity of a fair competition, essential condition for the single market, remains under the competence of the Union. Nevertheless, there is the field of ethical values and fundamental rights where, even today, the EU has greater powers than the US. Such is the case, for example, of the abolition of the death penalty. However, the jurisprudence of the Supreme Court in Washington tends to place the fight against discrimination above the traditional States' rights. The Specifics of a European Federalism The particular character of a European federation will be to be pluri-national. The US, Germany, India, Switzerland, in spite of the latter being plurilingual, conceive themselves as forming one nation. Only the Belgian federation is bi-national, but its recent and very complex structure combining regions and linguistic communities makes it a model difficult to transpose. Rather than a federal State, Europe will define itself as a federal "Union of States and Citizens", a formula which seems to me more accurate than Jacques Delors' "federation of Nation States" - which was coined to appease the "souverainistes". Indeed, to quote Jean Monnet: "we do not form a coalition of States, we unite men". Moreover, several members of the EU, for example the United Kingdom, are pluri-national. The first consequence of the pluri-national character of the EU is that it must foster a patriotism of values, of citizenship, a constitutional patriotism, and, in no case, an ethnic or geographical patriotism. This form of patriotism seems to me of a superior ethical level and certainly better adapted to the aspirations of younger generations, consequently it will be easier to make them share it. It is also a response to the perpetual adversaries of the EU who like to caricature it as an empire designed to be dominated by Germany, while one of its essential values is the refusal of any hegemony. A second consequence concerning the institutional organization of the federation: national organs, governments and parliaments will have to work together with the federal government, especially in the fields of foreign policy, defence and domestic security. In existing federations, federated entities only partake more or less in the Union government through their representative assembly: the US Senate, the German Bundesrat, the Council of States in Switzerland. But neither the Governors of the American States nor the Minister-Presidents of the Länder take part in the definition of the federal foreign policy. It should not be the same in the European federation. The institution of a President of the European Council relieved of national functions was one of the most important innovations of the Reform treaty. It raised reservations among federalists and supporters of the communitarian method, who could see it as a strengthening of the "Europe of States". We hope that a president who has only European responsibilities will act as the champion of the common interest. His role will be to associate the chiefs of national Governments to the management of EU's affairs. From this innovation two evolutions seem possible. The more likely, at least for some time, will be the division of the government of the EU into a community domain where the Commission will have the main influence and an inter-governmental domain mostly concerning the States. In the medium term another evolution would be advisable: the two domains progressively coming together. This merging could take place by a progressive community of decisional procedures (an extension of the majority vote to foreign policy and defence, being understood that, as long as no integrated army is in existence, the minority would not be obliged to take part in an armed intervention that they would not approve of), by the fusion of presidencies and the creation of a European Cabinet composed of several ministers with a double function, on the model of the High Representative for Foreign and Security Policy, another innovation of the Reform treaty. It would be a clever means of conciliating the desire of each State to have a Commissioner and the necessity to ensure the coherence of the Community's Executive. Each of these ministers would have a vast range of responsibilities and would receive a power of coordination over the corresponding commissioners. In this way it would not just be Foreign Affairs, but also defence, domestic security, the economy, sector policies, the quality of life, including the environment and welfare, education, communication, culture and youth, which would represent seven or eight portfolios. Chosen without consideration of nationality by the President of the Commission, with the approval of the Parliament and the European Council, these ministers would constitute a select cabinet within the Commission. They would be closer to the government but they would benefit from the independence of the Commission; they would, so to speak, realize "smoothly" the passage from the inter-governmental to the community method before the completion of the federal system. The existence of a restricted cabinet sitting under a unified presidency would reduce the risk of incoherence deriving from the multiplication of the number of commissioners. The mode of designation of the federal President and his cabinet is another subject which requires specific solutions. Several formulas can be envisaged according to the system to be preferred: more parliamentary or more presidential. A strictly parliamentary or definitely presidential one would not be well adapted to European complexity. The keeping of double presidencies, a solution retained in the Reform treaty, leads to parliamentarism, the president of the Commission acting as a Prime Minister. Nevertheless, it remains only half parliamentary, the essential role in defence and foreign policy being devolved upon the President of the European Council. The merging of the presidencies would leave the option open. An evolution toward a parliamentary system could take place through the creation of a real post of Prime Minister, when the conditions of transfer of governmental power in all fields to a Cabinet responsible to Parliament are obtained. On the contrary, the election of the President of the European Council by universal suffrage would lead to a presidential system. A more original formula might perhaps better answer European specificities. It would be to propose to popular suffrage a reduced and collegial team on the model of the Swiss Federal Council. In this hypothesis the federal President designated by an agreement between the governments and the Parliament would keep his (or her) role of representation and arbitration, and the main powers would be endowed to the executive college. These speculations about the various possible forms of a European government may seem irrelevant in the present day when the EU goes through an existential crisis. But we can also argue that we may seize the opportunity of the crisis to ponder over the medium and longer term institutions. Indeed, one of the causes of today's difficulties lies precisely in the lack of vision and the absence of debates on the future. The emergence of a strong executive cannot be conceived without the strengthening of the role of the Parliament, which should be endowed with the initiative to introduce laws and the power to control the Executive, which would be conceived according to the more parliamentary or more presidential model which will finally prevail. Recognizing the part played by national parliaments in the affairs of the EU is already, and will be even more tomorrow, an original feature of the European federal system. Beyond the control of subsidiarity, for which the national parliaments will be called to play an ever increasing role, it would be useful to give them the possibility to deliberate with the European Parliament on the general policy of the Union. In the same way, they could be associated to the process of amendment of the Treaties, thanks to a Convention composed of national and European MPs and representatives of the various Executive authorities. These revisions would not be submitted to the unanimity rule, but to a reinforced qualified majority, for example two thirds of the States and populations; minority states would be allowed to exert their right to opt out. This right to abstain recognized in the Reform treaty would be another specificity of a European Federal Union, different from a federal State. One of the European values is the settlement of conflicts by law and conciliation. The recourse to force against a member state is not conceivable within a European federation. On the other hand, economic sanctions must be allowed in case of breach of contract and, if necessary, political sanctions in case of severe or persisting default. Indeed, this possibility does exist today. The withdrawal from the EU is not a sanction but a safety valve; it should render it possible a relaxation of the amendment procedure: minority States would have a choice to opt out, and ask for a special dispensation or to transform their membership into an association. Less radical than withdrawal, the granting of the possibility to opt out could conciliate the desire of a majority to move forward and the timidity of some members. In this way, a vanguard could be constituted, not by selection but by voluntary self-exclusion. The result would be the same, but the political impact would be quite different. Selection is unacceptable for those who are not chosen, but those who exclude themselves must consider it is their own decision and should be able to go back to the majority at any time. The failure of "enhanced cooperations" can be explained by the fact that this formula is felt as selective rather than dispensational. We must add that the term cooperation was poorly chosen to name ambitious actions. Rather then Òhard coreÓ it should have been "soft core". It would be much better to say consolidated integration. The opting out formula can lead to an improved integration, as can be seen with the monetary union. It can be observed that a temporary exclusion of a country which has the will, but not the capacity, to take part raises no difficulty, since it will be resolved at the proper time. Finally there is the question of the voting right at the Council and Parliament for countries which are temporarily excluded or opting out on the issues in question; it would seem logical, at least, to ask countries who opt out not to exercise their voting right. To reflect upon federal forms adapted to European specificities is all the more useful as in several countries, among others France and the United Kingdom, federalism meets with a hostility which comes from a lack of understanding. For many Frenchmen and Englishmen federalism means centralization, for others, the Germans for example, it offers a guarantee against the encroachments of centralization. Therefore the battle for federalism is difficult. We must rely on a clear vision of what is possible in a Europe which remains more attached to national sovereignties than it was in the post-war years. The worst criticism from which federalists must defend themselves is that they advocate the death of sovereign States. By devising formulas which will allow the states not to alienate their sovereignty forever, thanks to the right to opt out, to preserve some freedom of choice in domestic policies, especially in social and fiscal matters, and to take part in the definition and running of the affairs of the Union, it may be possible to convince those of our adversaries who are sincere and in good faith.
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