The brand of EU federalism
In academic circles or as part of esoteric commentary on what the European Union “actually is”, the EU is often referred to as a polity sui generis. It is in a class of its own. The argument is that the EU does not conform with other models of state or political organisation, in particular those of a federation or confederation. The modal features of the supranational decision-making arrangements peculiar to the EU present us with something new; a polity that has yet to be properly defined.
This discussion is not entirely without merit. Indeed the European Union exhibits all sorts of peculiarities and deviations from the norm. But that is true for every instantiation of a model in every field of scientific inquiry. The model is meant to be an abstraction from the specifics. It captures what is common in a multitude of phenomena and, hence, must remain generic. An “abstraction” of the whole that only applies to a fraction of cases, exalts the particular to the general, and propounds a range of assumptions about reality, is not the most valid choice in an epistemological sense.
The claim that the EU is not a “genuine” federation or confederation can only hold if the definition of these entities is precise, descriptive, and enumerative. That tends not to be the case. Furthermore, these forms of polity are by their very design tailored to the specific cultural-historical needs of their peoples. The United States of America is a federation. So is Russia, Belgium, Switzerland, etc. Each has its particularities and may thus qualify as a “false” or “pseudo” federation, as an exception to the norm, if we are to follow the line of reasoning that emphasises the factors of differentiation rather than trace the patterns.
The veil of obscurity surrounding European politics is in large part the product of miscommunication, not of the EU being intrinsically incomprehensible. Indeed, the European Union is complex. So is virtually every federation and, perhaps, every modern unitary state that decentralises authority. Rather than single out the items that distinguish the European polity from other multi-level political organisations, let us elaborate on the specifics of its underlying federalism.
The EU as a federal system
The term “federalism” is polysemous, at least in a European context. It may denote an ideology and be treated as largely positive or progressive. Examples are political groups, especially at the European Parliament, that promote “more Europe”, a “United States of Europe”, or variants thereof at every given opportunity. Federalism may be used as a derogatory term, especially by those who consider themselves eurosceptics or opponents of the EU. For them a federalist is an apologist or cheerleader of everything that is wrong with the “Brussels” apparatus.
These labels are loaded with the significations and ideological predispositions of the group using them. A more objective term, the one we employ herein, is the ideology by which a polity is to be instituted as a multi-layered, decentralised whole, featuring both a vertical and horizontal separation of powers.1
The architects of the European Union—the governments of the nation states that sign and ratify the European Treaties—are guided by such [tacit] federalism while adapting it to their evolving needs.
They do not envision the EU as a “United States of Europe”, hence the ubiquity of intergovernmentalism and the robust restrictions to the power of the supranational level on cardinal expressions of statehood such as taxation, police and secret services, the military and the defence of national territory.
They believe European politics should be separate from national politics, though influenced by them, thus the presence of supranational institutions that labour for the general good of the Union while receiving input from the national level, be it from governments or citizens.
And they most certainly abide by the principle of the separation of powers, underpinning the operational independence of all EU institutions and enabling each of them to function independently from the influence of either their peers or national governments.
The European Union is a federal system. Unique in some of its secondary features, just as virtually every federation. Its legal-institutional order, the arrangements for rule forming and making, remain conceptually above the construct of the nation state though never in opposition to its normative achievements.
The EU draws its legitimacy from its constitutive nations. It is not a separate constitutional order. It functionally extends the collective will of its Member States, also by fleshing out the legal-moral standard by which they all abide to and strive to perfect.2
In this regard, the EU is not a distinct state or a detached bureaucracy. The European and national levels are, on a macro scale, an organic whole.
Politics at the European level
All politics within the context of the European Union take place at a level above the nation state. Yet not all of them follow the exact same procedures. The modalities of the various EU processes and methods for making decisions do vary.
And here is the tricky part that perhaps contributes to the exaggerations about the EU being sui generis. Intergovernmental affairs are between the Member States. But their end product is not national politics or variants thereof. These are international relations engendering international policies. Since they unfold within the framework of EU law, are permeated and defined by it, their outcomes are European or else supranational.3
In the EU there are two categories of political process:
- the national, which concerns the internal affairs of the state and conforms with the constitutional traditions of the nation in question;
- the European, which covers all areas of policy that have a cross-border dimension and where more than one national government are involved or where EU institutions provide their input in some meaningful way.
The first category is straightforward. The second is subdivided into two types: (a) intergovernmental, (b) supranational. These vary in terms of their directness as seen from the national level:
- intergovernmental are those EU politics where national governments are directly involved, such as within the context of the European Council or the Council of the EU;
- supranational are the affairs of EU institutions with no direct connection to national politics, such as the operations of the European Parliament, or the European Central Bank.
When we, therefore, comment on the intergovernmentalism of the EU we are implying a certain disposition towards its specifics. We may, for instance, condemn intergovernmental politics on the grounds that they always result in a compromise between competing national agendas, without the interests of the EU at-large being considered.
Whatever the case, intergovernmental affairs are but another facet of European politics, a peculiarity of the immanent federalism of the European integration process.
Federal system ≠ federal republic
Lastly, by treating the EU as a “federal system” we are distinguishing between two parameters of political organisation closely related to our present inquiry:
- Federalism. The form of the polity, in this case the multi-level structure.
- Republicanism. The content or quality of everything pertaining to the political process and interpersonal experiences thereof.
That the EU exhibits a brand of federalism does not necessarily mean that it also delivers on all the public goods peculiar to a modern republic. The structure and the quality of a polity are not connatural. They are separable, even though they certainly influence each other.
More practically, there are federations that operate in accordance with republican norms. There are other federations that leave much to be desired in terms of democratic standards. The EU aspires to be a republic, to institute or otherwise enhance democracy on a supranational scale, but typically falls short of its much-vaunted ambitions.
In a nutshell, the EU is not a “federal republic”.
By “horizontal separation” we refer to the division of powers between the various branches of the polity (executive, legislative, judiciary, etc.). By “vertical separation” we denote the distribution of authority between the various levels of government (supranational, national, regional, etc.). ^
This claim is in line with Articles 1 and 2 of the Treaty on European Union (TEU). The former recognises the nation states and European peoples as the constitutional subject of the Union. The latter documents the practical morality they have in common.
Article 1 TEU:
By this Treaty, the HIGH CONTRACTING PARTIES establish among themselves a EUROPEAN UNION, hereinafter called “the Union”, on which the Member States confer competences to attain objectives they have in common.
This Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen.
The Union shall be founded on the present Treaty and on the Treaty on the Functioning of the European Union (hereinafter referred to as “the Treaties”). Those two Treaties shall have the same legal value. The Union shall replace and succeed the European Community.
Article 2 TEU:
The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.
The exception to this would be those cases where intergovernmental politics take place outside the framework of EU law. For example the European Stability Mechanism is not envisaged in the European Treaties, though it is consistent with them and will eventually be brought into the European legal corpus. The same goes for the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union. The governments congregating as European Council may have to adopt a certain decision that is legally binding on them but technically is not based on the EU Treaties. These kind of legal gymnastics are worth studying for the sake of understanding the inventiveness of European leaders and their capacity to find solutions even when the EU Treaties seem to offer no good option. At any rate, no international covenant of such a sort can contradict the European constitutional order. What they do is complement it on the margin. ^