Year XLVIII, 2006, Number 3, Page 197
Federal Core and European Union
1. The Crisis of the Process of European Unification.
For a number of years now, the European Union has been in a situation of severe crisis. Whereas European integration was a constantly evolving process up until the Maastricht Treaty, which even led to some European states’ relinquishing one of the essential attributes of sovereignty — their currency — to a supranational entity, in the period since Maastricht these same states have proved incapable of proceeding towards unification. The Amsterdam and Nice Treaties, like the Treaty establishing a Constitution for Europe, have done nothing more than make minor changes to the mechanisms of Community law, and have failed to tackle the problems crucial to Europe’s future.
Essentially, there are two such problems. The first is the fact that the European Union does not have a single economic and fiscal policy, but rather twelve economic and fiscal policies that the Stability and Growth Pact serves merely to coordinate. And this would continue to be true even were the Treaty establishing a Constitution for Europe eventually to come into force, as the latter goes no further than to reiterate that the “Member States shall coordinate their economic policies within the Union” (Art. 1-15). There is no historical precedent of any monetary union managing to survive in the absence of a political power with the capacity to impose a single economic and fiscal policy. Thus, unless this problem is dealt with, Europe’s single currency runs the risk of growing weaker, even of disappearing.
At the same time, the fact that there is no European political power that can take economic and fiscal policy decisions renders it impossible, in these spheres, to make the specific choices needed in different economic phases, and forces the states to submit to rigid rules like those of the Stability Pact.
To this economic weakness — and here we come to the second problem that Europe must confront — we must add the total absence of a European foreign and security policy. In this case, too, the states limit themselves to coordinating their foreign and security polices, which remain in their own hands, a situation that the Treaty establishing a Constitution for Europe simply endorses. Indeed, the “constitutional treaty” fails, first of all, to make provision for the creation of a European army, and instead only affirms that “The common security and defence policy shall include the progressive framing of a common Union defence policy. This will lead to a common defence, when the European Council, acting unanimously, so decides. It shall in that case recommend to the Member States the adoption of such a decision in accordance with their respective constitutional requirements” (Art. 1-41). And for missions requiring the use of civil and military assets, it establishes that these should be provided by the member states. Thus, again, control of defence remains in the hands of the states.
Second, even the institution of the role of European foreign minister, hailed by many as an important step towards the creation of a genuine European foreign policy, does not really change things: appointed by the European Council, the Union Minister for Foreign Affairs is in fact nothing more that a representative of the Council of the European Union, whose foreign and security policy decisions are taken by unanimity (or by majority, but on the basis of decisions previously reached unanimously). When the member states fail to agree, his scope for action is thus negligible.
2. The Reasons for the Crisis.
The reasons for the crisis can be sought both in the new world balance that emerged after the fall of the Berlin Wall, and also in the progressively increasing number of EU member states.
With regard to the first of these aspects, it must not be forgotten that the division of the world into two opposing blocs and, for the countries of western Europe, the presence of the American superpower, on the one hand created conditions ideal for the development and strengthening of the process of European integration, but on the other, placed a limit on this process. Indeed, while the bipolar order guaranteed the existence, in Europe, of an area of peace and stability that favoured the creation of forms of cooperation and unification among states, it also meant that the states themselves were effectively relieved of the responsibility for managing their own foreign and security policy, which was instead essentially shouldered by the American superpower. The collapse of this world order exposed the fragility of a Europe that was no longer used to bearing the international responsibilities that, as a major economic power, it should bear.
As for the question of enlargement, while the founder states of the European Coal and Steel Community and the European Economic Community, in the wake of the devastation of the Second World War, were united in their aim to create a political Europe capable of guaranteeing an area of peace and stability and of preventing the outbreak of further conflicts between the European states, this situation changed radically following Great Britain’s entry into the EEC in 1973. Today — and this has been particularly true since the 2004 accession of ten new member states — there exist, within the European Union, two profoundly different visions of the nature and purpose of the process of European integration: according to one, the European Union is simply a free trade area that should not place further restrictions on national sovereignty and that must, potentially, be capable of enlarging to embrace other states; the other view, instead, raises the question of Europe’s political integration.
Because of this clash of ideas, it has become impossible to advance the process of European integration any further than the compromise, plainly inadequate, embodied by the Treaty establishing a Constitution for Europe.
Consequently, the member states’ contrasting positions on the war in Iraq, the crisis over the Stability Pact, the disagreements over the Union budget, and the lost referenda in France and the Netherlands are not the causes of the crisis, but only the consequences of a desperately difficult situation that has dragged on for years.
3. Possible Solutions.
We therefore need to look at how to find a way out of this crisis and to consider some possible solutions.
One option could be to leave the situation as it is, resigning ourselves to the fact that in a twenty-five-member Union, the text of the Treaty establishing a Constitution for Europe amounts to the best possible compromise.
This would of course mean giving up on any prospect of creating a political Europe and imply the further enlargement of the Union. But it is a solution that, ultimately corresponding to a maintenance of the status quo, would not lead to the creation of a common foreign and security, or economic and fiscal policy, and would not therefore tackle the key problems of the process of integration.
A second option, which opposes the idea that all twenty-five member states must advance at the same speed, is to allow those states wanting to pursue integration (because they are convinced that Europe’s problems will be solved only if it can be made to speak with a single voice) to form a vanguard, breaking away from the states that instead see the European Union as a free trade area.
This is not the first time the question of a vanguard has been raised: in the past there have been numerous proposals for the creation of a multispeed Europe. The most advanced of these may be traced back to two German Christian Democrats, Lamers and Schäuble, who, back in 1944, called for the creation of a federal core within Europe. But today, unlike in the past, a multispeed Europe has become an absolutely vital issue — the only choice capable of guaranteeing the process of integration a future. This is, indeed, the message conveyed, albeit in different tones, by a number of politicians (one might think of former German foreign minister Fischer, Belgian prime minister Verhofstat, and French foreign minister Douste-Blazy).
The solutions on the table may be divided into two categories.
In the first go those that maintain that a multispeed Europe could be formed within the framework of the current European Union, that is to say, on the basis of the existing Treaties — solutions, that is, in which all twenty-five member states together take the decision that the various states should be allowed to proceed at different speeds.
This is the category that embraces those who wish to exploit the provisions for enhanced cooperation contained in the Treaties. Enhanced cooperation is a mechanism, introduced by the Treaty of Amsterdam and partially modified by the Treaty of Nice, that allows any group of member states (a minimum of eight) wishing to implement more advanced forms of integration to do so, on condition that they comply with a series of restrictions, in place to ensure that the enhanced cooperation is compatible with the institutional framework of the Union.
The real limitation of this mechanism is that it does not allow those states wishing to proceed with an enhanced cooperation to do so freely: within the framework of the first pillar, the Commission can oppose any proposal for enhanced cooperation, the enhanced cooperation has to be authorised by the Council by a qualified majority, each single member of the Council has the faculty to request that the question be referred to the European Council, and finally the enhanced cooperation has to respect the institutional framework of the Union. Added to all this, enhanced cooperations cannot be implemented in relation to defence matters, one of the sectors in which a multispeed Europe is particularly necessary. It is thus a solution based on the fanciful idea that the decision to allow some member states to proceed more quickly than the others can be taken even with the agreement of those states that do not wish to move in this direction.
In addition to these limitations, there is another, even more serious one: the fact that the enhanced cooperation mechanism does not allow the creation of a true vanguard, i.e., a federal core. Indeed, the possibility for the states to decide, on a case-by-case basis, which enhanced cooperations they want to be part of would result in the formation not of a homogeneous group of more rapidly advancing states, but instead of a Europe à la carte.
In the second category, on the other hand, we find the solutions proposed by those who believe that member states wishing to do so should be allowed to transfer to a supranational authority the management of economic and fiscal, and of foreign and security policy, leaving behind those states opposed to more advanced forms of integration. Since economic and fiscal policy, like foreign and security policy, are central parts of state sovereignty, this decision would signify the creation of a federal state among the members of the Union wishing to take part — of a federal core within the European Union’s confederal structure.
This is clearly a very different solution from the first one described, because it would give rise to a new entity endowed with sovereignty, and thus with the character of a state. It is equally clear that it is a solution that the existing Treaties do not — indeed, could not — envisage.
The creation of a federal core would thus demand a break with the past. In other words, the process of creating a new federal entity would have to unfold outside the procedures envisaged by the Treaty establishing the European Community and by the Treaty on European Union.
Moreover, the fact that the transition from a confederal to a federal form implies a break with the past is shown by a historical precedent that, while belonging to the far distant past, nevertheless provides some insights useful for the present. I refer to the transformation of the American confederation into the United States of America. Indeed, the Articles of Confederation, which governed relations between the thirteen former British colonies following their independence from Britain, could be modified only with the consensus of all thirteen of the confederation’s member states. But the founding fathers of the American federation, in order to resolve the severe crisis facing the confederation, rather than following the revision rules contained in the Articles themselves, decided to propose a new text that would come into force upon its ratification by at least nine states. The American federation was thus born of a break with the previous regime.
4. The Federal Core.
Let us now consider what might be the stages in the constituent process leading to the formation of a new sovereign entity within the European Union, and which states should be part of this vanguard.
As regards the first aspect, it is feasible that the decision to form the core might be taken, by the states wishing to be part of it, through the signing of a treaty which would establish the fundamental characteristics of the new entity (its federal character, its bodies, its powers in the spheres of economic and fiscal policy and foreign policy and defence) and entrust a constituent assembly with the task of drawing up its constitution.
But it is difficult to imagine that the creation of the federal core might stem from the force of will of entities other than those states that are to be part of it. First, it is impossible that this initiative might stem from the Community institutions. This is because these, by definition, represent all the member states of the Union and it would not be in their interests to encourage some states to create a more advanced form of integration that would ultimately undermine the whole Community machinery. What about the citizens, then? Certainly, there would have to be some form of democratic legitimisation of the new federal entity, but in the wake of the decision to create the federal core, who, if not the states wishing to be part of it, should make the decision to consult the citizens on this issue?
And so we come to the question of which states should be part of the federal core. Some maintain that the vanguard should be made up of the eurozone countries, others that it should be a smaller group than this, and others still that it could comprise both countries from within and from outside the eurozone. In this regard, I feel that it is necessary to distinguish between two groups: one comprising the states that could be involved in the initiative to form a federal core, and the other the states that will actually become part of it.
While it is difficult to predict which states might decide to become part of the federal core, a number of considerations can be advanced with regard to the other aspect, that of the initiative that will bring about its formation. The formation of a federal core within the European Union would, in fact, mean the creation of a new state entity. Certainly, it will need a strong political will to overcome the obstacles and to create this new entity, capable of resolving the problems that Europe must confront — a strong political will that, for historical reasons, could well reside among the politicians of Europe’s six founder member states, and in particular among the politicians of France and Germany, the two countries that have always been the driving force behind the process of European integration. Clearly, this project could then be open to any member state in favour of it and prepared to submit to a federal constitution, and thus to divest itself of its sovereignty: it would, from its very creation, be a core open to all the states wishing to be part of it.
5. Relations between the Federal Core and the European Union.
With regard to the relations between the federal core and the European Union, a solution would have to be found that allowed the co-existence of these two entities. Indeed, if one accepts the idea of creating a federal core, one has to ask oneself whether this new entity would replace its member states within the European institutions, and whether the European Union could retain its current structure.
In relation to these questions we can make a series of general observations.
From the point of view of international law, it is conceivable that the new state (the result of a fusion of pre-existing states) could take over from its members within the organs of the European Union (in the Commission, for example, the federal core would have a single representative taking the place of those of its member states) and thus replace its member states in the Treaty on European Union and the Treaty establishing the European Community. Indeed, although most of the EU member states failed to ratify the Vienna Convention on Succession of States in respect of Treaties, and although there have been few such fusions of states over the years, as a general rule, any new state born of a fusion between two or more states is automatically granted entry into an international organisation of which these states are already members. But in this regard, the historical precedents are quite different from the situation that would arise upon the birth, within the European Union, of a federal entity resulting from the fusion of several EU member states, given the considerable influence that newly created entity would immediately wield upon entering the international organisation, i.e., the European Union.
The first problem that arises thus relates to the nature of the new federal state: it is clear that its creation would upset the institutional equilibrium of the Union, because this new EU member state would carry far more economic and political weight than the other members of the Union.
At the same time, it is difficult to imagine that the new state, a sovereign entity, would be willing to submit to the restrictions imposed by the Stability Pact (should the core not be made up solely of eurozone countries), or to accept the forms of cooperation that currently exist within the sphere of foreign and security policy.
The second problem is that outside the federal core there would remain all the states that are opposed to political integration and that, even now, are not particularly well disposed to the various forms of integration, other than the strictly economic ones, that already exist. It is thus predictable that, following the creation of a federal core, the bonds between the states that are not part of it will weaken progressively until the European Union becomes a free trade area.
It is thus likely that there would have to be some form of renegotiation of relations between the new federal entity and a European Union that would probably be somewhat different in nature from what it is now.