Towards a Federal Europe

Alexander H. Trechsel

• Publisher: Taylor & Francis
• Year: 2013
• eBook ISBN: 9781317998181
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Local & Regional Planning Public Policy
• Index: Politics & International Relations

An excellent new analysis of federalism and the EU that investigates their mutual impact.

It shows how scholars of comparative politics increasingly include the EU among their cases when investigating the impact of federalism on key issues such as policy making.

The last decade saw a new wave of scholarly publications hit the shores as research on federalism and on the EU came together. These emerging strands of research genuinely enrich our understanding of the EU and its politics. Despite this recent wave, the topic of federalism and the EU is still extremely fruitful. This volume contributes to the continuing debate at a moment in time when the EU is undergoing profound changes.

It is structured around four interrelated dimensions:

• the constitutional/theoretical dimension
• the institutional vision
• the party/citizens dimension
• the policy dimension.

This structure allows the reader to consecutively "funnel down" from the more theoretical and abstract levels to the more concrete policy oriented level.

How to federalize the European Union … and why bother

Alexander H. Trechsel

Europe has charted its own brand of constitutional federalism. It works. Why fix it?

J.H.H. Weiler (2001: 70)

1. INTRODUCTION

The present volume deals with federalism and the European Union (EU). Much has been said – separately – on both topics. However, combining federalism with European integration and investigating their mutual impact is a rather recent endeavour in political science. While there is little doubt that the majority of contemporary observers ascribe to the EU certain federal qualities, detecting processes of federalization here and there, scholars of comparative politics increasingly include the EU among their cases when investigating the impact of federalism on, for instance, policy-making. The last decade saw a new wave of scholarly publications hit the shores where research on federalism and on the EU come together (for those explicitly seeking this linkage see, for example, Hesse and Wright 1996; Bednar et al. 1996; Follesdal 1997; McKay 1999, 2001, 2004; Burgess 2000; Kelemen 2000, 2003; Nicolaidis and Howse 2001; Abromeit 2002; Börzel and Hösli 2003; Dobson and Follesdal 2004; Swenden 2004; Filippov et al. 2004; Schmitter 2004). These emerging strands of research genuinely enrich our understanding of the EU and its politics. At the same time these contributions further develop the discipline of comparative politics – which is to say the discipline where the emphasis is put on comparison (Mair 1998: 309).

Despite this recent wave the topic of federalism and the EU is not washed out, yet. Indeed, quite to the contrary. In this volume, the authors seek to contribute to the debate on the federalization of the EU at a moment when it is undergoing profound changes. It is worth recalling a few very recent developments of major magnitude to the whole European integration process: the establishment of the euro as a strong and stable currency shared by over 300 million Europeans in the euro area; the grave crisis in transatlantic relations over the Iraq war that both provoked calls for a common European foreign policy and exposed profound differences in foreign policies among governments of EU member states. At the same time, we witnessed a truly unprecedented coherence of public opinion in the EU, with an overwhelming majority of Europeans opposing the war. With the 2004 enlargement the EU grew from a fifteen-member state construct to a polity encompassing twenty-five member states. When the next two states join, in 2007, the EU will have nearly half a billion citizens. Finally, the EU is currently in the process of creating a new constitutional settlement. This process started with the Laeken Declaration in 2001, followed by the establishment of the European Convention (2002–2003) that elaborated the Treaty establishing a Constitution, signed by all twenty-five member states on 29 October 2004 in Rome. All of the above cited developments provide high-octane fuel for the debate and topic of ‘federalism and the EU’.

The authors of this volume address a large variety of issues, problems and possible solutions surrounding the initial question and title of this volume: ‘Towards a federal Europe?’ We have been guided by a comparative perspective. Every contribution explicitly tries to shed some further light on federal, or ‘federalistic’, features of the EU by using flambeaux provided by the experiences and trajectories of federal polities in Europe and elsewhere. We have all been stunned by a particularly enlightening flambeau that has remained mostly unlit in the comparative literature: the Swiss case. Let me briefly make an additional use of the latter and focus on its ability to shed some further light on the EU’s ongoing federalization process. In particular, three fundamental structural and institutional developments that the EU is facing will be discussed which, in combination, may severely hinder the EU’s capacity to adapt its constitutional order. By looking in particular at the Swiss but also at the American trajectories of federalization three options will be proposed for the EU to overcome – what one might call – its ‘federalist deficit’.

2. PUTTING THE SWISS CASE INTO A EU PERSPECTIVE

Despite its small size, the Swiss political system is in many respects one of the most complex and fascinating among contemporary Western democracies. Not only does it build upon historical developments that were initiated centuries ago but, furthermore, the unique structure of today’s society, the richness of its political institutions, the refined political arrangements and the multifaceted pressure for reforms constitute a laboratory for any scholar in the various disciplines of the social sciences. Often presented as the paradigmatic case of political integration (Deutsch 1976), consensual democracy (Lijphart 1984), multinationalism (Kymlicka 1995), or direct democratic decision-making (Butler and Ranney 1994), the Swiss political system has become a benchmark case for analyses in comparative politics.

When it comes to the study of the EU, references to the Swiss political system have become more frequent especially for the discussion surrounding the ‘democratic deficit’ of the EU, a term first coined by David Marquand in 1979 (see, for example, Moravcsik 2002; Zweifel 2002; Mény 2003). Also, scholars nowadays refer to similarities between the EU and Switzerland with regard to their respective decision- and policy-making procedures, fiscal arrangements, etc. Various contributions in this volume show that, when discussing the federalization process of the EU, the Swiss case is particularly insightful.

Nobody would challenge the statement that Switzerland is a federal state. However, the literature does not universally describe the EU as a federation or as constituting a federal arrangement. Some authors see the EU as a confederation, some as an international or supranational organization, others as a federation and yet others see it as a half-way house between a confederation and a federation, between a Staatenbund and a Bundesstaat. To be sure, these considerations are based on different definitions, yardsticks, conditions and interpretations of the minimal requirements for a governmental arrangement to be considered as ‘federal’.

It is not the intention of this contribution to elaborate on these fine distinctions, which, in any case, have arguably overly preoccupied scholars of comparative federalism. Rather, it proposes a comparison between the federalization process, with an emphasis on ‘process’, of Switzerland and the EU. In doing so, it relies on a ‘pot-pourri’ of constitutional, institutional and political elements that are highlighted by the theory of comparative federalism.

Similarities

First, in both multi-tier systems we find activities of government that are divided between central governments and sub-units in such a way that each level of government has some activities in which it makes final decisions (Riker 1975). Changes to this division cannot be arbitrarily made, as formal rules of the agreement and how such an agreement can be changed exist in both cases. In both systems, the sub-units have a certain autonomy that is guaranteed and, at the same time, restricted by a central government. For example, the form of cantonal governments cannot be simply altered by the federal level just as the form of EU member state governments cannot be altered by the EU (Auer 2005).

Second, both the EU and the Swiss process of federalization correspond to what is known in the literature as the ‘coming together’ rather than the ‘holding together’ type (Linz and Stepan 1996; Stepan 1999; Swenden 2004; Kriesi and Trechsel 2005 – contra: Benz 2003). Also, the process follows a pattern that could be best described as federalization by aggregation rather than by devolution (Friedrich 1968; Watts 1994). The Swiss constitution contains an extensive list of competencies – known in the German literature as a Kompetenzkatalog – assigned to the various levels of the federal state. The EU Treaties do not include such a detailed competence catalogue. However, the European Constitution is a very detailed and extensive text that contains no less than eight articles (Articles I-9 to I-17) concerning the – partly new – division of competences. In Switzerland and in the EU, competences have been given to the central state with the residue or the ‘residual power’ staying at the cantonal and member state level respectively. For example, a certain competence to act in a new policy domain first needs to be handed over by the sub-units to the central level before the latter can take legislative action in the particular domain.

Third, the legislative process on the EU and Swiss federal level contains complex consultation procedures allowing the sub-units, and even the sub-sub-units, to effectively participate in this process. Decision-making processes in both systems are highly negotiable rather than competitive, reflecting a consociational style (Papadopoulos 2005). For example, similar to the EU, the cantons are widely consulted before and during a federal legislative process.

Fourth, once policies are agreed upon, their implementation procedures place both systems into the category of administrative rather than legislative federalism. In both systems co-operative arrangements prevail. In domains where the centre is either solely competent or jointly so with the sub-units, the centre relies on the sub-units to implement its policies. As a consequence one finds in both systems a high degree of variation in the implementation of public policies (Papadopoulos 2005; Mendez 2005). One could even speak of asymmetrical implementation outcomes. For example, when the federal measures in the domain of energy saving were adopted, their implementation differed quite strongly from one canton to the other, with some cantons revealing a very passive attitude while others interpreted the federal measures by drastically accelerating the implementation of energy saving policies (Delley and Mader 1986). The same holds true, for example, for the liberalization in the EU energy sector (Schmidt 2002) where similar variations could be observed.

This is, of course, directly related to a fifth similarity among the two systems: both have a rather weak centre. Brussels and Bern have to rely on very limited budgetary resources with a very limited administrative apparatus. Large parts of both central budgets are primarily assigned to redistributive policies (Donahue and Pollack 2001: 109; Kriesi 1998: 64f.) and in both cases a high degree of vertical fiscal autonomy prevails (McKay 2001, 2005). For example, the levels of taxation and the taxation mechanisms vary considerably from one canton to the other. In other words, the taxes one pays vary quite significantly from one canton to the other. The same applies, of course, for the EU.

Finally, one should note that asymmetries are also produced through horizontal co-operation at the sub-unit level. For example, there are inter-cantonal agreements involving a limited number of cantons in various domains, such as education, health care or security. This is not dissimilar from the asymmetric arrangements that occur in the EU. For example, Schengen and EMU gave rise to sub-sets of member states willing to co-ordinate their policies. There are also a number of central dissimilarities in the federalization processes of the EU and of Switzerland.

Dissimilarities

First, nation-states, including Switzerland, rely on a common defence policy that is lacking in the EU. However, with the development of a common foreign and security policy, the strengthening of the European security and defence policy is to be envisaged. The EU Constitution, if ratified, would make a significant step in this direction. In the long run, this could therefore become more of a similarity than a dissimilarity.

Second, the EU fundamentally differs from other federal orders with regard to its lack of a common demos. Usually, the supreme sovereignty over a state is exercised by the people. For some authors, the EU is unique in the sense that it does not presuppose the supreme authority and sovereignty of a federal demos (Weiler 2001: 57). This would lead one to believe that, in this regard, the EU and Switzerland fundamentally differ. On closer inspection, such a view can be challenged by an empirical observation: in Switzerland, the supreme authority of the federal state is not only embedded in the people, but also in the cantons. For amending the Swiss constitution, a mandatory and binding referendum has to take place and a double majority – the majority of the people and the majority of the cantons – must be reached. One could add that in Switzerland institutional procedures have emerged – and this could be of value for the EU – allowing for the co-existence of a number of sub-national demoi (Nicolaidis 2004), speaking different languages, belonging to different religious and cultural groups, in the absence of a real federal demos. Therefore, this point could well serve as an example of similarity rather than dissimilarity.

This leaves us with two central differences between the two federalization processes under consideration. First, the EU treaties allow – in theory – for unilateral secession of a member state from the Union. The EU Constitution, while adding a procedural complication to this possibility in the sense that a withdrawal procedure should be negotiated, does not fundamentally change this state of affairs. Even under the EU Constitution unilateral secession would be technically possible. In this regard, and when excluding the non-democratic federal arrangement of the late USSR as well as the Ethiopian Constitution of 1994 (article 39), no other federal state allows for such a possibility. While this unilateral secession possibility might be an almost unique feature of the EU, it is worth reiterating that to implement such a move politically would be extremely difficult.

The second fundamental difference between the Swiss and the EU federal arrangement is, however, of utmost importance. What could be looked upon as the equivalent of a constitutional order, the European Treaties, can only be altered through unanimous consent of the member states. With the exception of Canada (and then only for a very limited set of articles) no Federal Constitution contains a unanimity requirement among the sub-units for its amendments. In general, supermajorities of various kinds are required. The EU, however, must rely on the unanimity principle for changes to its fundamental order.

The unanimity requirement’s democratic value could be questioned. Most of classic democratic thought relies on the existence of majorities, with minorities accepting the majorities’ will. Such minorities must develop a form of trust in the majority not to abuse power (see Follesdal 2005). Unanimity, however, is not simply a ‘super-super-qualified-majority’ – in fact, it is not a majority at all, as the very concept of majority implies the potential existence of a minority, the emergence of which, by definition, is not possible in procedures that require unanimity.

3. DOES THE EU SUFFER FROM A ‘FEDERALIST DEFICIT’?

To be sure, the principle of unanimity in the EU has been greatly reduced by the generalization of qualified majority voting mechanisms, introduced by the Single Act of 1986 and extended thereafter. And if ratified the EU Constitution would expand majority voting even further (Follesdal 2005). However, for Treaty amendments, unanimity prevails. Therefore, and as the EU Constitution remains a Treaty, it can only be adopted by unanimity among all member states, ratifying the Constitution in accordance with their respective constitutional requirements. Also, supposing the ratification process would be unanimous, future amendments to the Constitution would have to follow, in principle, the same logic (Art. IV-443 EU Constitution). Of course, it would be possible to change this very rule through an amendment that, however, would have to be submitted to the unanimity-based procedure.

One could argue that for the EU to hold on to the unanimity principle constitutes a ‘federalist deficit’. To become truly federal, all polities composed of more than two sub-units, ‘coming together’ into a federation, have at some point abandoned the unanimity principle for amending their fundamental order. They all have overcome – or at least reduced – the ‘federalist deficit’ on their way towards stronger integration. In all federal states the units composing them have a say when it comes to the amendment of the federal constitutional order. Typically, they have an equal say, independent...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Contents
• Introduction
• 1 How to federalize the European Union … and why bother
• 2 The constitutional scheme of federalism
• 3 Asymmetric federalism between globalization and regionalization
• 4 Implementing (and radicalizing) art. I-47.4 of the Constitution: is the addition of some (semi-)direct democracy to the nascent consociational European federation just Swiss folklore?
• 5 Federalism and the European party system
• 6 Federalism in the European Union: the view from below (if there is such a thing)
• 7 The European Union and cybercrime: insights from comparative federalism
• 8 Economic logic or political logic? Economic theory, federal theory and EMU
• 9 Bypasses to a social Europe? Lessons from federal experience
• 10 Towards a stable finalité with federal features? The balancing acts of the Constitutional Treaty for Europe
• Notes on contributors
• Index