Year LIII, 2011, Single Issue, Page 53
Points for Thought in the Writings
of Francesco Rossolillo*
The writings of Francesco Rossolillo are, as shown by the size of the two volumes of his work recently published by Il Mulino, not only numerous but also very varied, both in nature (weighty essays alongside brief reflections) and in subject matter (political philosophy, general theory of the state, constitutional law and political science, as well as, not infrequently, history and sociology). In short, Rossolillo’s work is vast and heterogeneous, reflecting the great breadth of his culture.
Faced with such a wide range of material, it is natural to choose to focus on the topics that, for various reasons, are closest to one’s own heart. Personally, I have always been impressed, above all, by Rossolillo’s reflections on issues of general theory, in which, masterfully, he succeeded in reconciling the federalist vision with the application of scientific rigor. I refer, for example, to the concepts of people and sovereignty and, in this regard, recall in particular an essay he published in 1995.
Therefore, my aim here is to identify points in Rossolillo’s writings on these issues that deserve further reflection, naturally focusing on those that seem to me to be particularly relevant today.
1. The concept of sovereignty.
As already indicated, the complex idea of sovereignty was a cornerstone of Rossolillo’s thought, and an issue to which he devoted two long essays.
Sovereignty is a concept that must inevitably be taken into account when dealing with the question of a European federation. And this is true in spite of the increasingly widespread view (strongly criticised by Rossolillo in 2001) that, with the disappearance of the modern state, we are witnessing an inexorable decline of sovereignty. As Rossolillo points out, the absence of sovereignty implies the risk of a slide into anarchy and a total absence of law in the regulation of civil society.
The truth is that we are actually faced with quite frequent reminders, should we need them, of the continued relevance of the concept of sovereignty, not only in the process of European unification but also, more generally, in the sphere of international relations. Indeed, the concept of sovereignty was recently analysed, as a point of law, by the German Constitutional Court (in its ruling on the Lisbon Treaty). The German Constitutional Court is, indeed, a body that repeatedly raises the unavoidable question of the attribution of sovereignty within the European framework, albeit referring to a very outdated version of the concept. Remaining in the ambit of international relations, the actions both of the developing powers (China, India, Brazil, etc.) and, despite their problems, of the traditional ones (the USA primarily, but also Russia) provide daily reminders of the continued importance of so-called external sovereignty. Indeed, the failure of the European states and the EU to play any kind of role in the recent climate change conference in Copenhagen showed what can happen when it is absent.
Sovereignty, according to Rossolillo, means the power ultimately to guarantee the efficacy of a legal order. In addition, he also embraces — in my view perhaps a little too strongly — the idea that sovereignty must always be considered indivisible, even in a federation. This position, however, is tempered by his valid theoretical explanation (Kelsenian in nature) that sovereignty belongs to the federation as a whole, which in turn is structured on at least two levels: that of the member states and the central level. In this way, the sovereignty he envisages is shared sovereignty. But the fact nevertheless remains that the (constitutional) laws that govern relations between the centre and the member states are federal, as indeed are the institutions that interpret and apply them. And it is precisely this question of the power to determine the extent of one’s own competences, a fine distinction forcefully highlighted by the German Constitutional Court as an obstacle to European unification, that represents the crux of the concept of sovereignty.
This framing of the question implies a clear differentiation between confederation and federation, which allows no middle ways. Perhaps (but this is my interpretation) it is a framing that can be reconciled only with the existence of sui generis entities like the ones, provisional and continuously changing, that have always characterised the process of European unification, from the ECSC to the EU (even though it is, justifiably, very much doubted that the latter, as a whole, can evolve in a federal direction).
In addition the issue of the power to determine competences, Rossolillo clearly identifies the material bases and instruments necessary for the exercise of sovereignty: these are foreign policy, which obviously goes hand in hand with control of the armed forces, and major economic policies, which in turn require monetary control. It must be remembered that the paper being referred to here was published in 1975, long before Europe took its first tentative steps in these areas.
Furthermore, Rossolillo overcomes the idea of a conflict between state sovereignty and popular sovereignty, reaching the conclusion that sovereignty belongs both to the people and to the state, which should not be regarded as two distinct entities, but rather as parts of the same phenomenon. According to this view, then, the state and the people are absolutely inseparable. All theoretical considerations aside, this point is interesting for the implications it has with regard to the creation of a European federation. Indeed, efforts to move towards a European federation have often been opposed, both by politicians and in the sphere of theoretical debate, on the basis of the argument that it would first be necessary to establish that a European people actually exists, as this is an essential precondition for undertaking the founding of a European state. Conversely, it seems impossible to argue with the view that the two elements actually come into being together, in a gradual process in which a community comes to see itself as united in a community of destiny.
2. The concept of people.
At this point, Rossolillo’s ideas on the concept of people are fundamental.
Indeed, the traditional concept of national people does not leave scope for any alternative to the dichotomy between a European people that assumes constituent power and European national peoples that enter into a pact with each other. However, I would also add that if it is accepted that the criterion (and there may actually be more than one) used for determining the existence of a European people must be the same as the one that is applied in reference to the national peoples, then this means that a European people can never come into being (and given the instruments often used to form national peoples, one cannot help thinking that that is just as well!).
For this reason, Rossolillo’s solution (below) is particularly interesting, as well as being largely admissible:
I. A people is not some metaphysical entity, nor is it a naturally occurring phenomenon; rather it has the nature of a process. This means that it is evolving all the time, and this evolution is also influenced by its interaction with the relevant institutional entities.
II. The European federation cannot merely be the result of the constituent act of a new European people, or the product of a “contract” between European national peoples. It can only stem from a more complex act, one that incorporates both these elements, i.e. that has the characteristics both of a constitution and of treaty.
In my view, this observation highlights the inadequacy, for the purpose of creating a European federation, of the conventional method whereby the representatives of the member states, meeting at an IGC, sign a treaty that must then be ratified by the single states (this was the procedure used for the Treaty establishing a Constitution for Europe, which of course failed to enter into force after being rejected by the French and the Dutch). It is inadequate because, despite the level of participation in the preliminary stage, the outcome is still an ordinary international treaty (which, moreover, in this specific case, required the unanimous ratification of the EU member states). Also inadequate for the purpose of creating a European federation is the idea of ratification through a European referendum, in this case because the consensus of each nation-state would actually represent the last truly sovereign act on the part of that state, and therefore could come about only on a strictly individual basis.
III. The European people cannot be regarded as such on the basis of national-type criteria because — as Rossolillo points out — the European people must necessarily be the European federal people. This means a single people, united in a single community of destiny, but at the same time a pluralistic people,“whose distinctive characteristic will be the multiple loyalties of its citizens” (i.e. towards the federation, towards the other member states, and towards other “successively smaller” communities). These multiple loyalties are possible only “thanks to the overcoming of the exclusive nature of national loyalty”.
In the light of what has been said, it is impossible not to agree with Rossolillo’s conclusion that there is no set pattern or sequence to the institutional transformation and growing self-awareness of the European people. Indeed, all that can be identified are pivotal moments, namely the legitimation of a new order and the “shift of the framework of political struggle from the nations to Europe”.
3. The European Parliament.
The European Parliament (EP) is, of course, a fundamentally important element in the popular legitimation of a European power.
The attention Rossolillo devotes to this organ is considerable, yet (particularly with regard to the fundamental question of a uniform electoral procedure) scattered in a number of different works (including a book co-written with L.V. Majocchi).
While rightly underlining the considerable importance, for European unification, of the direct election of the EP, Rossolillo does not fail to identify and denounce the many shortcomings (in terms of its representativeness) of this institution. His main criticisms, advanced from the time of the introduction of the directly elected EP, remain highly relevant today. They concern, in particular, the composition of the parliament and — to an extent — they coincide with the criticisms raised, albeit with exaggerated emphasis and clearly with polemic intent, by the German Constitutional Court.
A recurring theme in Rossolillo’s thought is the need to create a uniform electoral system for the EP, which, moreover, would merely amount to complying with what is already laid down in the Treaties.
A good uniform electoral system, envisaging the establishment of a single European college, could, first of all, by rewarding (at the ballot box) those lists that have supranational connections, spur the political forces to strengthen their own European links (currently only confederal), thereby favouring the creation of true, democratically formed European parties, as well as the emergence of supranational political competition and debate. All this would contribute to the development of European public opinion, which as yet exists only in embryonic form.
A uniform electoral system could also serve to restore greater proportionality between a country’s number of elected MEPs and the size of its population. Currently there exist marked imbalances in this ratio that favour the less populous states, a situation that was harshly criticised by the German Constitutional Court.
This absurd discrepancy was also criticised by Rossolillo in writings dating back to the first term of the first elected EP. According to him it is the result of a contrivance geared at bringing together, in the same chamber, the representation of the citizens and that of the states.
Certainly, were the EP’s powers to be increased, particularly with regard to the legitimation of a European government, it would no longer be possible to apply the current system, on account of its failure to respect the democratic principle of equality of votes. Federalist theory has long offered a solution to this problem, namely to create a bicameral federal system, by transforming the Council into a second chamber in which there is equal, or substantially equal, representation of the states, and the EP into a citizens’ representative assembly, also created on a substantially equal basis.
In addition, in the context of Rossolillo’s general theoretical reflections (I refer to a study conducted in 1985), it is worth mentioning his highlighting of the general principle that lower chambers should be elected on the basis of single colleges, in order to prevent members of parliament from putting local interests before the general good. This principle, which Rossolillo takes to extremes, corresponds to the idea, still topical today, that at least some of the MEPs should be elected on the basis of a single European college, a concept referred to earlier.
On the subject of federal bicameralism, the same study highlights the opportuneness of subdividing tasks in such a way that only the first chamber (which is proportionally representative of the people) has executive power and legislative initiative, while the second is left to serve as a guarantee, safeguarding the powers of the lower levels of government.
Clearly these are still highly topical considerations. After all, the Council has not been transformed into a second chamber (the feeble moves in this direction contained in the draft Treaty adopted by the European Convention were promptly thwarted by the subsequent IGC).
Furthermore, the problem of the discrepancies between the different states as regards their ratios of MEPs to electorate has worsened. Following the Council’s adoption (after the entry into force of the Lisbon Treaty) of the double majority form of qualified majority voting, decisions have to be supported by at least 55 per cent of the Council of the European Union members which must, in turn, also represent at least 65 per cent of the EU’s citizens. This has created a paradox whereby the Council is left with a decision-making procedure that makes it apt to be more representative of the demographic balance than the EP itself is! This situation undermines the EP’s chances of becoming the body that legitimates a European government; furthermore, even though the Lisbon Treaty introduced some small changes to the procedure for appointing the Commission that did tend in this direction, the Commission itself is still far from resembling a European government.
4. The federation in the confederation.
I wish to end by commenting on an issue that has been considerably important for some time, and that has now become even more central: that of relations between the EU and possible forms of greater unification taking shape outside the framework of the 27 EU member states. I take as my starting point Rossolillo’s reflections, in 1986, on the question of the relations between the (then) still-to-be created EU and the EC.
Even back then it was obvious that not all the EC members could be involved in advances of the unification process. At the same time, a unilateral breakaway seemed unfeasible. It was clearly necessary for some of the members to advance, and to do so with the consent of those that did not wish to follow their example: in short, what was needed was a Union of those that wanted to take part, formed with the acquiescence of those that did not. Thus, even then it was clear that the treaty establishing a European Union (in that period the term referred to something more advanced than the EU that the Maastricht Treaty would later bring into being, rather usurping the name of Spinelli’s ‘draft treaty’) would have to contain rules that would allow it to co-exist with the EC, which would nevertheless continue to embrace both those states that wanted to be part of the Union and those that did not.
The creation of a legal instrument able to guarantee the coexistence of these two entities would have had number of advantages, and indeed still would have today. Mainly, it would help to get rid of all the excuses, both in the states that are against and in those that are in favour of unification, thereby rendering formally unexceptionable what I would term a negotiated or agreed split.
Today, however, it is hard to imagine the act establishing the new entity including all the possible measures geared at ensuring compatibility between the future European federation and the EU; similarly, it is hard to imagine using, to this end, some mechanism along the lines of the enhanced cooperations for which provision is already made. In my view, the prerequisite for the realisation of federal-type forms of political unity can only be a political agreement between, on the one hand, the states that intend to start a process of greater unity and, on the other, all the others. This stage would of course have to be preceded by a schism between those set on unification and those opposed to it (possibly coinciding with avote to convene a convention with powers greater than those currently envisaged, or with the drawing up, perhaps by the EP, of a highly innovative draft revision of the Treaties). Such an agreement could make provision for the election (or appointment) of an ad hoc assembly comprising only representatives of those states willing to accept the mandate that the agreement itself would establish. At the same time, however, the agreement should outline broadly the terms of the relations between the legal entity to which the assembly should give rise and the existing EU, also stipulating the convening of an IGC to make any necessary amendments to the EU Treaty (e.g. with regard to common organs).
In this case, at Community level, the legal basis of the arrangement would be very tenuous (the decision could be taken within the European Council, in the form of a declaration by the latter, as happened in Laeken); basically, the project would be supported by a unanimous agreement that would cover the assembly’s mandate and the future management of the coexistence of whatever entity were to spring from the assembly and the EU, which would continue to exist. Since the distinction between states wanting deeper integration and those opposed to it would have been made before the mandate was defined, this would ensure more constructive management of the ad hoc assembly which would involve only states in favour of the enterprise. As mentioned, this whole procedure could — preferably — run parallel with an IGC whose task would be to establish, in detail, the terms of the coexistence of the two entities, on the basis of the general agreement ratified by the European Council at the time as the assembly’s mandate was defined.
* This is a reworking of the address given on 2 March 2010, in Ferrara, to mark the presentation of the collection of writings by F. Rossolillo. The event was organised by the MFE and by the Institute of Contemporary History of Ferrara (Istituto di Storia contemporanea ferrarese), under the auspices of the University and Province of Ferrara.
 Francesco Rossolillo, Senso della storia e azione politica, Vol. I, “Il senso della storia”, Vol. II, “La battaglia per la Federazione europea”, Bologna, Il Mulino, 2009. The pages of works cited herein refer to these volumes, even though the year and sometimes the publication that originally contained the work in question will be indicated.
 “La sovranità popolare ed il popolo federale come suo soggetto”, in F. Rossolillo, op. cit., Vol. I, pp. 721 ff., English version “Popular Sovereignty and the World Federal People as Its Subject”, The Federalist, XXXVII, n. 3 (1995), pp. 150 ff.
 “Che cos’è la sovranità”,(1975), in F. Rossolillo, op. cit., Vol. I, pp. 499 ff. and “Appunti sulla sovranità”, ibid., Vol. I, pp. 805 ff., English version of the latter “Notes on Sovereignty”, The Federalist, XLIII, n. 3 (2001), pp. 161 ff.
 Cf. “Notes on Sovereignty”, op. cit., pp. 162 ff.
 The text of the judgment, in German, can be found (as can a semi-official version in English) on the website of the German Federal Constitutional Court (www.bundesverfassungsgericht.de).
 It has been remarked that the German Constitutional Court, in reference to sovereignty uses tones typical of the first half of the last century (M.P. Chiti, “Am Deutschen Volke.Prime note sulla sentenza del Bundesverfassungsgericht del 30 giugno 2009 sul Trattato di Lisbona e la sua attuazione in Germania”,athttp://www.astrid-online.it/Riforma-de/Documenti/Corte-cost/CHITI_Am-Deutschen-Volke.pdf).
 In this regard, among the wealth of evidence, cf. the depressing account given by C. Bastasin, “Dopo Copenhagen/Europa e Usa a nozze sulla CO2” in
 Cf. “Che cos’è la sovranità”, in F. Rossolillo, op. cit., p. 503.
 Cf. L. Levi, “La federazione: costituzionalismo e democrazia oltre i confini nazionali”, in A. Hamilton, J. Madison, J. Jay, Il Federalista, Bologna, Il Mulino, 1997, who recalls, in fact, H. Kelsen, General Theory of Law and the State, Milano, Comunità, 1966, V ed., p. 322.
 On this point, cf. “Che cos’è la sovranità”, F. Rossolillo, op. cit., pp. 503-504; “Notes on sovereignty”, op. cit., pp. 167-169.
 The German Constitutional Court, in the ruling mentioned (§ 233), affirms that so-called Kompetenz Kompetenz, i.e. the EU’s power to decide the extent of its own competences, cannot simply be transferred to European level.
 Cf. “Che cos’è la sovranità”, in F. Rossolillo, op. cit., p. 506.
 Ibidem, p. 508; “Notes on sovereignty”, op. cit., p. 165.
 This is an idea that has been particularly widespread in German doctrine, see in particular D. Grimm, “Braucht Europa eine Verfassung?”, a conference held at the Carl Friedrich von Siemens Stiftung, 19 January 1994, and E.-W. Böckenförde, Welchen Weg geht Europa?, Munich, Siemens Stiftung, 1997. Reading between the lines, the German Constitutional Court’s “Lisbon” ruling also goes in this direction, § 251.
 “Notes on sovereignty”, op. cit., pp. 166-7.
 “Popular Sovereignty and the World Federal People as Its Subject”, op. cit., pp. 150 ff.
 For a harsh criticism of the theories that tend to interpret the idea of people in an ethnic sense, see F. Mancini, “Per uno Stato europeo”, in Il Mulino, 1998, pp. 408 ff.
 It can, incidentally, be noted that this is a typical feature of classical federations like the United States of America and the Swiss Confederation, which nevertheless went on to assume, gradually, many of the characteristics associated with a nation. Contrary to what happened in these cases, however, the characteristics of the European states will not allow the subsequent transformation of the people from which the federation is born into a national people, and as a result will constitute the full realisation of the federal principle that was formulated in relation to the classical federations.
 Cf. “Popular Sovereignty and the World Federal People as Its Subject”, op. cit., pp. 160-161. In this essay, Rossolillo speaks of a disappearance of the national peoples in favour of a federal, thus pluralistic, people. As the author himself acknowledges, this idea raises doubts. Personally, I believe that the concept of people, if stripped of its nationalistic connotations of absoluteness, can also be used in reference to the various sub-federal levels of government.
 Cf. “Popular Sovereignty and the World Federal People as Its Subject”, op. cit., p. 180.
 Il Parlamento europeo. Significato storico di un’elezione, Naples, Guida, 1979. The chapters written by Rossolillo can be found in F. Rossolillo, op. cit., Vol. I, pp. 135 ff.
 Cf. in particular § 285 of the ruling.
 ”Il ruolo del Parlamento europeo nella costruzione dell’unità politica europea”, (1980), in F. Rossolillo, op. cit., Vol. II., pp. 29 ff.; “Proposte per la soluzione della crisi istituzionale della Comunità”, (1982), in Id., op. cit., Vol. II, pp. 33 ff.
 “Per un nuovo modello di democrazia federale, in F. Rossolillo, op. cit., Vol. I, pp. 571 ff., cf. in particular pp. 583 and 588. English version: “Towards a New Model of Federal Democracy”, The Federalist, XXVII, n. 2 (1985), pp. 90 ff., in particular pp. 100 and 104.
 Due to the greater number of microstates, a phenomenon that has increased with the enlargement of the EU to the East and is partly attributable to strong fragmentary forces —fragmentation offers certain advantages within the EU organs —, the ratio between the number of electors in the smallest country and the number in the largest country, each electing a single MEP, has reached 1:12. Six has been established as the minimum number of MEPs that a state is entitled to have, whereas in “Proposte per la soluzione della crisi istituzionale della Comunità”, op. cit., p. 49, developed by the UEF in 1982, there was talk of a minimum threshold of two.
 “Unione europea e Comunità”, in F. Rossolillo, op. cit., Vol. II, pp. 91 ff. English version: “European Union and the Community”, The Federalist, XXVIII, n. 2-3 (1986), pp. 145 ff.
 The need to guarantee compatibility between different levels of integration was, at that time, the subject of important reflections, see Antonio Padoa Schioppa, “European Union and European Community: Two Incompatible Institutional Systems?”, The Federalist, XXX, n. 3 (1988), pp. 201 ff. and Id. “Notes on the Institutional Reform of the EEC and on Political Union”, The Federalist, XXXIII, n. 1 (1991), pp. 63 ff., in particular p. 70.
 On enhanced cooperations after the Lisbon Treaty, see G. Tiberi, “Uniti nella diversità: l’integrazione differenziata e le cooperazioni rafforzate nell’Unione europea”, in F. Bassanini – G. Tiberi (editors) Le nuove istituzioni europee. Commento al Trattato di Lisbona, Bologna, Il Mulino, 2008, p. 287.