Year XXXV, 1993, Number 3 - Page 169
The Milan Manifesto
Boxed in between stagnant federalism and increasing nationalism, Europe in 1993 should not be assessed only in light of the prophetic statements made by Altiero Spinelli in 1941 and 1943, but also to the actual plan of the Treaty establishing a European Union, whose enactment by the Strasbourg Parliament he brought about in 1984, as well as to the consequences of the collapse of the Soviet system which Spinelli did not experience and which widens the scope of this Union (officially ratified 25 days ago by the twelve member states of the Community) to the mouth of the Danube.
Let us try here to make such an examination within the framework of the mandate which the citizens of Milan, Rome, Turin, Florence, Genoa, Perugia and Urbino have entrusted to a professor of constitutional law and political science, selecting him as the only deputy of this Community to whom the adjective “European” applies precisely. In fact, this French citizen represents Italy, and in this way is tied to a double loyalty towards the fatherland of his birth and that of election. Such an undertaking is not without risks, since it leads federalists to a radical revision of their thinking, and European parliamentarians to an unusual boldness in decision-making.
Today, Milan represents both the principal danger and fundamental hope: a contrast which is lacerating Europe and points to its future. Wrought by secessionist antics, this city, in one of the most modem regions of the continent, is undergoing a form of populist tribalism, a degeneration of nationalism which in less-developed countries, such as Ireland and Yugoslavia, leads as far as civil war. Founder of the European idea in 1943, Milan can now renew its theoretical basis and accelerate its realisation, just as Altiero Spinelli did previously, in 1941 and then in 1984.
I. Towards an Open Neo-Federalism.
The time has come to outline a theory of federalism which is not based solely on the examples of the US and the Swiss confederation, but which also takes account of the German, Austrian and Belgian models, which have brought about important innovations while remaining within the bounds of federal states. The European Community could go much further by passing from these state federalisms to an open federalism, on condition that it leaves behind the stagnation which the current rebirth of nationalisms is imposing on it. Only the parliaments are able to awaken the ‘sleeping beauty in the forest’.
Federalism was originally invented to create little states by means of gathering together independent entities which had more in common with ancient city-states than with nation-states. The United States was comprised of less than 3 million people in 1787, when the thirteen ex-British colonies decided to turn the minimally coercive confederation that they had established some months following their Declaration of Independence in 1776 into a federation. Switzerland was similarly-sized in 1848 when she embarked on the transformation of a confederation which was no longer coercive, even though it was older, having been established in 1292.
The originality of this classical federalism consists in the division of parliament into two elected chambers that are directly elected by the citizens: one, in proportion to the respective populations of the federated units, the other instead with an equal number of representatives for each unit. The first prevents the larger federated units, which were fewer in number, from being dominated by a coalition of little ones. The second, conversely, protects the little units from the hegemony of the large ones, given that the equality of representatives was acceptable for the smaller ones since, in the United States of 1787, differences in size were negligible because all the federated units were fairly small: from 538,000 people in Virginia to 45,000 in Rhode Island.
The juxtaposition of the majority of the population and of the majority of states, mitigated from the outset with respect to the executive, was suppressed very early on in the United States by the evolution of the electoral system for Presidential elections. Entrusted under the constitution to electors chosen by each state in numbers equal to the numbers of senators and representatives which that state sends to Congress, this process was initially based on an inegalitarian combination of the two representations. The majority of the population got the upper hand when the selection of the electors was switched to universal suffrage. This naturally forced the electors to campaign under the name of a candidate for the White House, and to subsequently vote for that person. In this way, a strong and stable executive power, endowed with the power of veto over the legislature, now rested on the majority of citizens.
In the federal constitutions of modem parliamentary states, such as Austria’s of 1920 and Belgium’s of 1993, the representation of provinces in the chamber reserved for them is only imperfectly proportional to the number of their inhabitants. The development of democracy in the 20th century is badly suited to equal representation for small and large federated elements. Its refinement represents the first stage of neo-federalism, but not the most important one.
Neo-Federalism in the 20th Century.
The route to an authentic federalism has been established by Germany from the time of her first republican constitution, voted for at Weimar in 1920. It provided for a Reichsrat, like the current Bundesrat under the constitution voted for in Bonn in 1949: this is formed not of deputies elected by citizens, but by members of the governments of each Land, which dispose of between 3 and 6 block votes, according to whether the Länder have less than 2 or more than 7 million inhabitants. This innovation is crucial and is in keeping with the logic of federalism. From the moment in which the second chambers express the autonomy of the federated states, this autonomy is best represented by the local governments which precisely embody it, rather than by elected members whose equal numbers for each one symbolise the equality of the federated units, but represent opinions rather more than an independent decision-making capacity. In law, the relative balance of the federated governments does not conform to the theoretical equality of the territories that they manage. In practice, this relates to the fact that the population confers to the individual states a different degree of influence at the federal level, without this being exactly proportional to the population level itself.
The representation of the federated units in the second chamber through their governments, and not through members elected by the people in equal numbers for each federated unit, represents the key aspect of 20th century neo-federalism. The relative balance of these governments’ votes according to population levels is simply the complement of this. The first innovation derives from the legal notion of federalism. The second corrects the excesses of this notion through a political compromise. The importance which the federated governments have assumed, raised in this way to the status of federal co-legislators beside a first chamber which represents the populations, sets up a confusion of powers of a nature heretofore not experienced, since the members of the federated executives are involved in the federal legislature. In this way, they participate to a certain extent in the sovereignty of the federal state.
Nevertheless, this in no way alters the fact that neo-federalism and classical federalism are both variations of the national state, the only titleholder of sovereignty defined as a supreme and independent power which avoids all obligations to submit to a superior authority. As for all nation-states, the federal state is submitted to obligations only if it has accepted them in a contractual commitment with its equals, which are other sovereign states. The federated units are not states. Moreover, only in the United States are they given this name, where the term “state” refers solely to the federated states: the federal state is designated as the Union by the constitution and popular usage. Elsewhere, federated units are called cantons, provinces, regions or countries. They have enormous internal autonomy, but in no cases are they sovereign. The federal state is none other than a very decentralised national state, whose competences are generally defined by precise attribution: all competences that the constitution does not recognise belong to the federated units.
The Open Federalism of the Community.
Classical federalism and German neo-federalism are limited to the federal state, the sole titleholder of sovereignty in the combination comprised of itself and the federated units. Among the member states of the Community, each of which is a real and proper state and titleholder of the essentials of sovereignty, there exists none which is willing to change its status in order to become a simple federated unit. Whether large, medium-sized or small, no state considers it advantageous for the Community to fuse into a federal state, which with its twelve current members would already total 345 million inhabitants.
Including the six EFTA states and the twelve ex-people’s democracies, it would become an enormous federal state of 500 million inhabitants, through the fusion of thirty or so nations stretching from the Atlantic to the mouth of the Danube, and from the North Cape to Cyprus. This monster would be internally ungovernable, and would find itself highly restricted in international relations since it would enjoy only one vote in the UN’s General Assembly and only one veto in the Security Council, like the United States, instead of its current 30 or so votes and vetoes. Altiero Spinelli did not hope for this closed type of federalism which, by creating a superstate, would further distance the peoples from the sovereign decision-making power.
“The international unity” discussed in the Ventotene Manifesto can only be an open federalism which reunites the national states, which history has established, in a structured whole around a common civilisation of which they embody particular forms; each of which, moreover, is being threatened by the globalisation of economies and of mass media. In this perspective, the Community seems an original system, which is developing itself on the basis of classical and neo-federalism. In this way these political ideas are the precursors of anew model of political society, the third to be invented and experimented, following the democratic city-state and the nation-state. A political society which will take a more precise shape with the division of sovereignty between the member states, which at the outset held it exclusively, and the Community’s authorities which have already received some of it.
But this type of Community is still in embryo. It is transforming itself very slowly into an adult organism, and has adopted only very partially the legislative institutions of neo-federalism. The European Parliament could fulfil the functions of a chamber of people’s representatives if it had full legislative power. The Council could symbolise a chamber of the states, represented by the ministers of their respective governments, as in the German Bundesrat, if it did not take on 80% of legislative power and a good portion of the executive one. The governmental authority remains weak and disorganised, and risks becoming anarchic if the enlargement of the Community currently underway is not preceded by profound institutional reform. The governments are not disposed to carry this out, nor to leave others to do so. But the parliaments, if they so wished, could assume the task.
II. The Time of the Parliaments
Reducing the Council of Ministers to the sole legislative functions appropriate to the title of Council of the States, transferring to the Commission all the Community’s executive competences, elevating the European Council to a supreme Council of the Union which would eventually be able to unite at the level of foreign ministers in order to carry forward diplomatic and security cooperation and common policies, endowing the European Parliament with a general power of co-decision for each Community legislative act: these are the principal reforms which would enable the development of real open federalism, based on a division of sovereignty with the member states. The governments will never do it, but the European Parliament has the means to force them to start some of these reforms, and the national parliaments can help it transform the Community.
The Power of the European Parliament.
The procedure for admitting new members offers the European Parliament the same chance to impose its own authority that the British Parliament found a few centuries ago in the power to authorise the collection of taxes, when it subordinated this process to the fulfilment of its requirements. The Crown never conceded anything spontaneously to the members of parliament: they won all their prerogatives using the technique of “yes, on condition that. ...” The governments of the states which sit on the Community Council will never concede an important power to the European Parliament if they are not forced to do so. Today they want Austria, Finland, Norway, and Sweden to join the Twelve. But this is not possible without the deputies’ approval, requiring an absolute majority – that is 260 votes. Nothing prevents the Parliament from submitting such approval to the condition of institutional reform, which would be applied simultaneously to admittance. In this way, it can force important changes.
Citizens would understand perfectly well such a move, since it corresponds to an obvious and urgent interest of the Community. I will mention only one of the required reforms, since it would open the way to closer cooperation between the European Parliament and national parliaments, which is indispensable. This reform concerns the selection of commissioners in order to end an anomaly which could undermine the whole functioning of the Commission. In theory, its members do not represent the states, but in practice they are nominated by the governments. The Maastricht Treaty provides only for consultation with the appointed President prior to the nomination of each commissioner. Why not take a step forward, making a gesture towards national parliaments which corresponds to the rationale of the institution? It is sufficient that the European Parliament put among the sine qua non conditions for its approval of each new admittance a demand of this type: “The members of the Commission are to be chosen by its President subsequent to his nomination, each one from a list of six names drawn up by the parliament of the relevant state on the basis of four names provided by its majority party or coalition and two by its opposition.”
The Cooperation of National Parliaments.
It is indispensable to involve the national parliaments in the decisions of the Community, as opposed to the current situation in which the states are represented exclusively by the governments. This monopoly, natural for diplomatic relations, is unacceptable in a multinational structure in which the peoples must be represented, not only as regards their desire for union, by the European Parliament, but also in their national diversities by the parliaments of the states. Altiero Spinelli wanted the 1984 constituent treaty project to be sent directly to these latter so that they would discuss it before their governments did. In fact, the parliaments of the states have not examined the text since it was too far removed from their concerns. The “Conference of Community Parliaments” which met at Rome in November 1990, has thrown a bridge across the abyss of misunderstanding which then separated the two categories of people’s representatives. It brought together a third of the European deputies with two thirds of the states’ parliamentarians, so that the latter (who number 7,000) might be better represented (a requirement for a majority of two thirds for all votes was provided for in order to re-establish a balance). The two types of representatives were able to debate together without difficulty in an excellent atmosphere, combining along the lines of parliamentary groupings, where the elected members of similar parties easily placed themselves.
A New Constituent Power.
Voted through with an overwhelming majority, following the discussion of 200 amendments, the “Final Declaration” did not possess legal validity: but it was the first constituent text of the Community which rested undeniably on a double democratic legitimacy. The speaker of the European Parliament proposed that the conference of the Community parliaments become an element of a real and proper constituent procedure. The European Parliament would primarily decide on the first reading a constitutional project limited to some essential point. This project would then be debated by a conference of the parliaments. The “Final Declaration” agreed on by this conference should furnish instructions to the European Parliament for deliberation in a second reading; this text could finally be sent to the Council of the Union or to an intergovernmental conference, possibly after being scrutinised a second time by the conference of parliaments. It would be difficult then for the Council of the Union or for the intergovernmental conference not to take note of a constitutional project drawn up under these conditions. In the current stage of the Union’s development, it is impossible to provide for a constituent procedure based solely on the European Parliament. But it is no longer possible to tolerate a constituent procedure relying solely on diplomatic techniques, as if ordinary treaties were at issue and as if the Community and the Union did not exist.
The governments and parliaments of the states, as well as the German Constitutional Court, should also consider the example of two democratic confederations when they changed their confederal statutes. Only twelve states in the US voted in favour of the 1787 constitution; Rhode Island even refused to send deputies to the Philadelphia Convention, and the constitution was applied after no more than nine states had ratified it. Only fifteen and a half cantons, out of twenty-two, ratified the 1848 Swiss Federal Constitution, which the other cantons subsequently applied to. The European Community is today much more integrated than the Confederation of the United States was before 1787, and the Swiss Confederation was before 1848. This is why ideas about federalism, confederation and the Community deserve to be examined more fully than they have been in these few pages.