Introduction: Europe's constitutional future – Federal lessons for the European Union

Click to increase image sizeClick to decrease image sizeKEY WORDS : federalismpower-sharingfuture of EuropeConstitutional TreatyEU Acknowledgment The articles in this Special Issue are revised versions of papers first presented at a workshop on ‘Governing Together in the New Europe: Divisions of Competences and Federal Models’, held at Robinson College, Cambridge on 12/13 April 2003. The workshop was part of a series organized for the CONVEU-30 [From the Convention to the IGC: Mapping Cross-National Views towards an EU-30] network of European institutes, coordinated by Dr Andreas Maurer and funded by the European Commission. We are grateful to Andreas for his support and to the Commission and to the Foreign and Commonwealth Office for the funding that made the project possible. Notes 1A prime example is Alan Milward, who insists on the importance of the nation state and intergovernmentalism, while failing to study one important federal factor. He (Milward, 1992 Milward, Alan. 1992. The European Rescue of the Nation State, London: Routledge. [Google Scholar]) mentions the European Court of Justice only once in his book, The European Rescue of the National State, and never refers to a single court case, even though the ECJ is seen by most scholars as a highly successful supranational element with in the EU. 2For a list of the hundreds of variations, see Stewart, 1984 Stewart, William H. 1984. Concepts of Federalism, Lanham: University Press of America. [Google Scholar]. 3In a paper submitted to the Working Group on Complementary Competences (Working Group V of the Convention), the European Commission echoed these words: ‘the European Union is a unique construction which, unlike individual States, was set up in order to attain predetermined objectives. Its powers to act are thus defined essentially as a function of these objectives and not ratione materiae.’ (WGV–WD04, p.2). See also WGV–WD16, p.2. 4Cheryl Saunders suggests that this ‘goal-oriented approach’ is one key aspect that differentiates the European Union treaties from the constitutions of federal states (Saunders, 1995 Saunders, Cheryl. 1995. Constitutional Arrangements of Federal Systems. Publius, 25(2): pp.61–79. [Google Scholar], p.67). 5This functionalist approach was first advocated in 1943 by David Mitrany (later re-published as Mitrany, 1966 Mitrany, David. 1966. “A Working Peace System (Quadrangle Books)”. In The European Union: Readings on the Theory and Practice of European Integration, Edited by: Brent, F. Nelsen and Alexander, C-G. Stubb. London and Boulder, CO: Lynne Reinner. 1994 [Google Scholar]). However Mitrany was not supportive of the process of integration as it emerged, believing it to be too institutionalized. 6This issue came to a head in 1965 during the Crisis of the Empty Chair. The solution was the Luxembourg Compromise of 1966 which ensured that the vast majority of decisions were taken by unanimity until the mid-1980s and the ratification of the Single European Act. 7European Court of Justice Judgements: Case 26/62 Van Gend en Loos v. Nederlandse Administratie der Belastigung (Netherlands Inland Revenue Administration) 1963 ECR 1 and Case 6/64 Costa v. ENEL 1964 ECR 585, which respectively created the principles of the direct effect and supremacy of European law. 8Using dual measures of policy output – legislation and budgetary appropriations – Pollack was able to identify and predict the spread of EC action in new policy areas (Pollack, 1994 Pollack, Mark. 1994. Creeping Competence: The Expanding Agenda of the European Community. Journal of Public Policy, 14(2): pp.95–145. [Google Scholar]; and his reevalution, Pollack, 2000 Pollack, Mark. 2000. The End of Creeping Competence? EU Policy Making since Maastricht. Journal of Common Market Studies, 38(3): pp.519–38. [Google Scholar]). 9The Treaty of Amsterdam included a ‘Protocol on the Application of the Principle of Subsidiarity and Proportionality’. Proportionality requires that ‘any action by the Community shall not go beyond what is necessary to achieve the objectives of the Treaty’ and is very similar to the ‘necessary and proper’ clause of the United States Constitution. 10Proportionality requires that ‘any action by the Community shall not go beyond what is necessary to achieve the objectives of the Treaty’. 11Emphasis added. ‘Protocol on the Application of the Principle of Subsidiarity and Proportionality’, reprinted in Duff, 1997 Duff, Andrew. 1997. The Treaty of Amsterdam – Text and Commentary, London: Federal Trust for Education and Research. [Google Scholar]: 293–4. 12The Convention covered a much wider range of issues than its original brief required. The emphasis here is primarily on the division of competences, as being the one that most clearly relates to issues of sharing and dividing power. The institutional dimension is mentioned in various articles to the extent that it impacts upon the federal aspects of the Union in comparison with other states. 13For further discussion of the problems behind a clear catalogue of competences, see Swenden, 2004 Swenden, Wilfried. 2004. Is the European Union in Need of a Competence Catalogue? Insights from Comparative Federalism. Journal of Common Market Studies, 42(2): pp.371–92. [Google Scholar]. 14This workshop, convened by the Royal Institute of International Affairs in the framework of the CONVEU-30 network, was held in Cambridge, UK on 12–13 April 2003. Another conference, ‘Whose Europe? National Models and the Constitution of the European Union’, focused more generally on national models (Nicolaïdis and Weatherill, 2003 Nicolaïdis, Kalypso and Weatherill, Stephen. 2003. Whose Europe? National Models and the Constitution of the European Union, Edited by: Nicolaïdis, Kalypso and Weatherill, Stephen. Oxford: Oxuniprint, Oxford University Press. [Google Scholar]). 15See WGV–WD04 (Germany); WGV–WD12 (federal systems); WGV–WD14 (United States, Canada). 16The British understanding of federalism is particularly confused. For example, the UK government's representative on the Convention, Peter Hain, has talked of ‘creeping federalism’ (E-politix, 22 July 2002), available at http://www.epolitix.com/EN/Bulletins/PressReview/Items/200207/4A95962D-785A-4CBF-A66B-CDDA96A84365.htm. 17Belgium is an example of what Koen Lenaerts refers to as ‘devolutionary federalism’, where a previously unified state devolves power and takes on characteristics of a federation (Lenaerts, 1990). 18For example, one group of authors comparing the EU to the modern US pointed out that individuals can ‘suffer from split loyalties’ in a federation, but dismiss the problem as ‘more notional than real in the US … whereas, in the EC, [it presents] real obstacles’ (Cappelletti et al., 1986: Vol. I: 26). It is true that split loyalties rarely confront the modern US; however, in the period before the Civil War, the tension between loyalty to a state and loyalty to the union resulted in numerous secession threats and eventually to bloodshed. 19N.B. this is a key difference from the dual federalism practised in Belgium, where the parties are even less integrated than in the EU.

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