Year LI, 2009, Single Issue, Page 58
A “FEDERAL CORE” IN A WIDER EUROPEAN UNION.
HOW SHOULD THE CORE BE FOUNDED?
HOW SHOULD ITS INSTITUTIONS BE STRUCTURED?
WHAT SHOULDBE THE NATURE OF ITS RELATIONS WITH THE INSTITUTIONS OF THE WIDER UNION?*
When talking about a multi-speed Europe or flexibility within the European Union, it is very important to assume a political perspective on the issue. Only by so doing can answers be found to the following questions: how should the federal core be founded, how should its institutions be structured, and what should be the nature of its relations with the institutions of the wider Union? Above all it is crucial to understand why a federal core is what we now need, rather than some other form of differentiated integration. An appropriate institutional solution will be found only if we can keep our ultimate, political, objective very clearly in mind.
We all agree that Europe today faces two major challenges: the creation of a European foreign and security policy, so that Europe can speak with one voice in the international arena and provide for its own defence, and the building of a single economic and fiscal policy to complete the existing monetary union. It will take a democratically elected European government to rise to these challenges: after all, only a democratically elected government can legitimately make decisions on matters of economic policy and taxation (no taxation without representation) and questions of peace and war.
A European government responsible for defence, foreign policy and economic and fiscal policy implies the existence of a European federal state. And, given that some EU member states are unwilling to take integration as far as the creation of a European state, the problem we now face is how to build a federal state encompassing those European countries that do want to take this step, i.e. how to create a sovereign entity that would replace some of the existing EU member states (since the states joining this new entity would, in becoming members of a federation, lose their sovereignty).
Since this is our objective, it is clear that all the forms of flexibility built into the European Treaties are woefully inadequate: in short, none of the existing forms of differentiated integration brings into question the sovereignty of the member states, or was designed with the aim of creating a new sovereign entity — a new state.
And here, again, it is essential to stress the importance of the political perspective, the political objective to be achieved. Because each time, in the past, the idea of creating a multi-speed Europe or some other form of differentiated integration has been the subject of complicated negotiations in the absence of a clear political objective and a clear political will, the result has been unsatisfactory. We might cite, as an example, Schäuble and Lamers’ 1994 proposal to create a “hard core” of European states, i.e. to make it possible for some member states (those ready to take this step, possibly drawn from among those belonging to the European Monetary Union) to form a core group and create a European government outside the framework of the existing Treaties and even against the will of the less integrationist states. However, during the negotiations leading up to the Amsterdam and Nice Treaties, this idea of allowing the process of European integration to advance at different speeds gradually lost its political significance as the original idea of creating a vanguard became reduced to a complicated flexibility formula — enhanced cooperation — that was never going to be of much use to those wishing to establish a European federal core.
As long as the sovereignty of the member states is not brought into question, it remains possible, within the framework of the Treaties, to seek forms of differentiated integration in an attempt to reconcile the interests of all the member states, but the provisions that result from these endeavours, precisely because they have been adopted by all the member states, including those not wanting to pursue deeper forms of integration, are by definition born of compromise and thus cannot help to solve the problems now besetting the process of European integration.
This is seen clearly in the case of enhanced cooperation, a mechanism subject to a set of conditions (the so-called ten commandments) designed to guarantee that these cooperation agreements remain within the ambit of the Union or of the Community and are compatible with the institutional framework of the Union itself. Thus, the Commission can oppose any proposal for enhanced cooperation, every enhanced cooperation has to be authorised by the Council by a qualified majority, and the single member states have the faculty to request that decisions on recourse to this mechanism be referred to the European Council.
The creation of monetary union in Europe provides a further illustration of this point. When, in the 1990s, this step was decided upon, states like the United Kingdom and Denmark were already members of the European Community, and given that the decision was taken during the Maastricht Treaty negotiations, and thus in accordance with the procedures envisaged by the Treaties (i.e. through an intergovernmental conference deciding by unanimity), it was inevitable that the solution reached would be a compromise, namely the creation of a single currency in the absence of a common economic and fiscal policy. The adoption of a common economic and fiscal policy by the states wishing to enter the single currency would in fact have led to the creation of a government and thus of a core Europe within the European Union, a step that the United Kingdom, for example, would never have allowed.
There are two lessons to be learned from these experiences. The first is that the creation of a core group of states within the European Union (if our objective is to give rise to an entity able to speak with one voice) cannot be achieved through the mechanisms provided for by the existing Treaties. Since the European institutions represent all the member states of the Union, it would not be in their interests to allow some states to create a new sovereign entity, a more advanced form of integration, that could undermine the Community structure. In short, any decision on a multi-speed Europe taken by the European institutions is bound to result in an unsatisfactory compromise and not in the building of a federal core. Consequently, the decision to create a vanguard can be taken only outside the framework of the EU and Community Treaties, through a break with the procedures they currently envisage.
Were this to happen, it would, in fact, not be the first time that some member states had gone outside the Treaties in order to become part, within a separate unit, of a deeper form of integration. We might think, for example, of the Schengen agreements before the Treaty of Amsterdam. In 1985 these agreements were signed by France, Germany and the Benelux countries outside the framework of the European Community Treaty. The difference is that the building of a federal core outside the mechanism provided for by the Treaties would have a much stronger impact because it would create a new sovereign entity, not just closer cooperation between sovereign states in a specific policy area.
The second lesson is that the political objective and the basic structure of the new entity comprising those EU member states ready to relinquish their sovereignty must be clearly defined and agreed upon from the very outset. In other words, were the task of defining basic aspects of this closer integration to be entrusted, subsequently, to a constituent assembly or to an intergovernmental conference open to all the states wanting to carry the integration process forwards, but without prior acceptance and definition of the central aim (i.e. to found a federal core responsible for foreign policy and defence and for economic and fiscal policy), the outcome could easily be a compromise solution liable to undermine the federal aim of the initial project, in short, nothing more than another form of flexibility like those contained in the existing Treaties.
This is the reason why the building of a federal core demands a strong political will on the part of several states. And it is up to these states to take the initiative of creating this new entity, by drawing up a federal pact establishing, above all, the transfer of sovereignty from the member states to the new federal entity, thereafter convening a constituent assembly entrusted with the task of drafting the new state’s constitution. The decision to join (and thus to create) a federal core and the drafting of a federal constitution are, in fact, two separate steps, and the taking of the second depends on the accomplishment of the first.
And so we come to the definition of the basic characteristics of the European federal core. To tackle this issue it may be useful to refer to the Draft Treaty defining the Statute of the European Community adopted by the ad hoc assembly entrusted with creating a European Political Community in March 1953 and intended to complete the European Defence Community Treaty (which, of course, never came into force).
Albeit ambiguous on certain issues, this Treaty nevertheless contains many interesting elements and is certainly the most “federal” Treaty in the history of the process of European integration.
As far as the institutions are concerned, the Draft Treaty establishes that legislative power will be exercised by a Parliament composed of two chambers: a Peoples’ Chamber made up of members representing the peoples united in the Community, and a Senate, made up of senators representing the people of each state. The former will be elected directly by the citizens, in accordance with a uniform electoral system, and the latter by the national Parliaments, in accordance with the procedures determined, independently, by each member state. Legislation must be approved by each of the two chambers by a simple majority.
Executive power is conferred on the European Executive Council, whose president will be elected by the Senate, which will also appoint the other members of the European Executive Council. To assume its functions, this Council must receive a vote of confidence from the Peoples’ Chamber and also from the Senate, in both cases conferred by a majority vote.
In short, this Draft Treaty made provision for the creation of a European government appointed by a Parliament directly elected by the European citizens. These institutions, according to the Treaty, will be responsible for European defence and have the power of taxation.
Judicial power on the other hand is conferred, under the Draft Treaty, to a court of justice whose function will be to ensure the rule of law in the interpretation and application of Community legislation.
The institutional structure envisaged by the Draft Treaty contains some ambiguities: the main ones are the existence of a council of national ministers composed of representatives of the member states that must approve by unanimity the amendments to the most important Treaty provisions (conversely, in a federal state, amendments to the constitution should be approved by a majority of the Parliament and of the states), and the fact that the foreign policies of the member states are merely coordinated. Nevertheless, this Draft Treaty clearly outlines the structure of a federal state (a government appointed by a two-chamber Parliament and a court of justice ensuring the rule of law in the interpretation and application of Community legislation) and could serve as a very useful model for the creation of a future federal core.
Indeed, in a future federal core, too, legislative power would have to be entrusted to a two-chamber Parliament, one chamber representing the citizens and the other the member states. The government would have to be elected by citizens or by the Parliament, and be democratically answerable to them. Judicial power, on the other hand, would have to be entrusted to a court of justice, endowed with the capacity to declare void any legal provision in conflict with the constitution.
As far as federal competences are concerned, the institutions of the federal core would be responsible for foreign policy and defence (which implies the existence of a European army under the command of a European general staff, whose chief would be answerable to the defence ministry of the federal core) and for economic policy (which implies the power to levy taxes), although it would probably also be necessary to transfer to federal level competences concerning scientific research, technological development and the environment.
But if we look again at the Draft Treaty of 1953, there emerges another point that could be useful for our present purpose. Indeed, the Draft Treaty states that the Community created by the Treaty itself shall progressively exercise the powers and competences of the European Coal and Steel Community and of the European Defence Community and ultimately replace these two organisations. For the transitional period, the Treaty envisages forms of provisional government of the whole structure comprising the new European Community, the European Coal and Steel Community and the European Defence Community. Something similar can be envisaged for the period that would immediately follow the signing of a federal pact by member states intent on creating a federal core. Prior to the election of a constituent assembly entrusted with drawing up the constitution of the federal core, a provisional government would have to be created. Given that, at this stage, the federal institutions and the procedures for creating them would not yet have come into existence, this provisional government would still have an intergovernmental character. It could, for example, be composed of members chosen by the heads of state and of government of the signatory countries of the federal pact and submitted to a form of parliamentary control exercised by the members of the European Parliament belonging to those countries.
The relationship between the federal core and the Union.
First of all it must be stressed that acceptance, into the federal core, of an EU member state that was not among the original signatories of the federal pact should not depend on the fulfilment of technical standards, but only on the will of that state to relinquish its sovereignty in order to become a member state of a federation. Hence, the federal core would exclude only those states that do not want to be part of it, not those that fail to meet some formal requirement, technical or economic. This would belie the arguments of those who maintain that the creation of a federal core would be a means of excluding and isolating the poorest or newest member states.
The second point worth stressing is the fact that the Treaty establishing the European Community already contains, in article 306, a provision designed to allow the existence and the completion of regional unions within the European Union. According to this article “the provisions of this Treaty shall not preclude the existence or completion of regional unions between Belgium and Luxembourg, or between Belgium, Luxembourg and the Netherlands, to the extent that the objectives of these regional unions are not attained by application of this Treaty.” The existence of this provision can be taken as a demonstration that the existing Treaties do not preclude, in principle, the creation of unions of states within the European Union. It should nevertheless be appreciated that the building of a federal core by some member states of the European Union would be very different from the specific experiences (regional unions between Belgium, Luxembourg and the Netherlands) that this provision refers to. Particularly because if this core includes — as it should do — at least three leading member states of the Union, its weight within the institutional framework of the Union, and in comparison with that of the other member states, would be considerable.
And it is precisely this that emerges as the central problem when examining the question of the nature of the relationship between a federal core and an enlarged European Union. In theory, one could refer to international law and apply the rules on the succession of states in respect of treaties, according to which any state born of a fusion between two or more states is automatically granted entry into an international organisation of which these states were already members. Accordingly, the federal core would replace its member states in the Treaty on European Union and in the Treaty establishing the European Community (thus in the Council and in the Commission, for example, the core would have a single representative taking the place of those of its member states) and would be subject to all the agreements (forms of cooperation and restrictions of sovereignty) imposed under those treaties.
Although this solution is possible juridically, if one considers the issue from a political perspective, it can clearly be seen that the creation of a federal core would upset the institutional equilibrium of the Union, because this new state would carry far more economic and political weight than the other members of the Union, and also that the core group would not be prepared to accept all the limitations on sovereignty imposed by the existing Treaties.
This last point deserves particular consideration. Once created, the federal core, like all new states — the creation of the American federation has shown this to be the case —, would inevitably need some time to establish its position and to withstand attempts on the part of its members to reaffirm their sovereignty. It is natural that any state that is trying to consolidate and affirm its newly won sovereignty will resist the placement of restrictions on that sovereignty. This is the reason why some of the new member states of the European Union that were formerly part of the communist bloc, having regained possession of their sovereignty in 1989, are unwilling to relinquish any of it to the European Union institutions. It is, for example, difficult to imagine the federal core being willing to submit to the restrictions imposed by the Stability Pact, instead of fully exercising its sovereignty in the field of economic policy.
Therefore, a renegotiation of the relations between the federal core and the EU would be called for, even though it is difficult to imagine what the outcome of these renegotiations might be.
The first point to be stressed is that the core must stand as a single unit, especially in its relations with the European Union member states and institutions. Hence, the core would replace its single members within the European institutions themselves.
The second point is that all the states that are not particularly kindly disposed towards forms of integration other than strictly economic ones would have to remain outside the core group. It is thus possible that the bonds between the states that do not become members of the core will weaken progressively, until the Union is nothing more than a free trade area.
But there remain many other unresolved issues. If, for example, some of the euro-zone countries were to decide not to join the core, there would arise the problem of how to coordinate and regulate the economic policies of these states and the economic policy of the federal core.
* Report held at the IX International Seminar “Federalism and the European Unification”, Desenzano del Garda, 25-26 April, 2009.