The Reality of Federalism in the European Union: a Federation Sui Generis or the Organization of the Regulation?

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Author: Ahmet Cenk Sarı, for CED – Center for Economic Development & Social Change

The European Union has been compared to several forms of political organization, such as federal systems, existing international organizations models. However, the comparative studies between the EU and other existing political orders are rather based on resemblance between the Union and federations or make reference federalism as a principle of unification more or less autonomous entities under the common roof. The compassion of federalism is based on two principles: independence and dispersed politics. Yet the federalism also implies territorial policies which is based on a division of power. However, to understand what the truth of federalism is, it should be noted that federalism is a system of political relations which found its establishment on the combination of self-regulation and shared rule with widespread powers. In this case, the federation is no more than a division of powers. Lijphart defined the division of powers as the one objective to ensure that a party of power will be under the control of regional authorities.

Before starting to interpret other aspects, it is important to explain the concept of “sui generis” and “organization of regulation”. The EU is the most compound, remarkably the most institutionalized supranational regime in the world. It is an unrepeated political and economic formulation in many aspects. But its unequaled aspects do not nullify our efforts to understand it from a comparative perspective. As Max Weber stipulated, every social phenomenon may be regarded from the base of its unique elements and as also it can be viewed as a matter for generalization. However, the skepticism about the uniqueness of EU argued that the EU is no more than a regulatory organization with its member states. The increasing interdependence of domestic and supranational policies within the European Union has proved the importance of the regulation which is the most important way of policy-making in the EU, stressing that the EU does not have competence to regulate taxes and spend money, which is why the EU has only the chance to be an organization of regulation.

How we can link the federalism to the EU? 

Since the EU is founded, many empirical approaches tried to answer the reality of the Union. Yet many of them couldn’t reach to explain all the aspects of this unique type of organization. Firstly, the legacy of federalist in the European context starts long before the foundation of EU. Already in the interwar period, Richard Coudenhove-Kalergi’s “Pan-Europa” was published as a key source for a unification of Europe. Like many others at the time, Coudenhouve-Kalergi advocated the establishment of a Pan-European Union as the best way to protect Europe from war, rising communism and fascism. For Coudenhove-Kalergi, this Pan-European Union should also feature necessary economic counterweight against the growing world power, the United States. In the “Ventotene Manifesto”, Spinelli and Rossi were stimulated by the idea of a new kind of Europe framed by the member states that shift willingly part of their autonomy to collective democratic institutions. However, all these historical background of the federalism, the federalist approach is damaged by the aftermath of the French and Dutch referendum on the Constitutional Treaty in 2005. Here, the federalist approach being aware of the reluctance of at least certain member states to go further into this direction, they produced the idea of a political “core” that would look for more fully integration without being stop by the skeptic member states.

Hereafter the small introduction of the federalist legacy within the EU, it is possible to identify the relevant evidences of the federalist narrative in the EU. I will list some key points to look at, when analyzing a polity, to see whether it is a federation, namely: statehood, the founding members, the governmental system, the division of power, legitimacy and participation, resources. Within the EU, it is remarkably easy to find recognizable separate institutions, which should create traceable public and private spheres such as the European Council, the Council of the Ministers, the Commission, the Parliament, the Court of Justice, the ECB and so on. Hitherto, EU today is far from being called a federation in the sense sitricto sensu. It should be noted that the EU is a “Federation unfinished” or as evidence that the EU is an atypical or original. The Federation is a political unit, then we can say that the EU of today is not the quality to be called a federation. According to Valéry Giscard d’Estaing: “Europe is an organization which is not yet a political unit”.

De facto the Member States are the pioneer of the integration procedures in the EU, it is the fact which legitimizes the idea of the equality and the federal government, which gives substance to the doctrine divided sovereignty between the federal level and regional level. The later non-issue indicates that the political structure of the Federation, it is often considered that the EU does not follow the characteristics of federalism because of the failure of a classic bicameral system. The anti-federalist thinkers often mark the EU does not have the ‘Federal Diet’, which is like I above-mentioned the existence of a bicameral legislature in which Member States may arise to keep their interests. However, the current EU system of tripartite or quadripartite-allowed the representation of states. It is the “intergovernmental federalism”. However, this participation should be vice-versa, but the EU is almost entirely a ghost in the major activities which are normally driven by national states, namely, the provision of social welfare.

Division of power is obviously not to be confused with administrative decentralization.  Administrative decentralization stress that the parliament or the central administration may delegate some competencies, and then draw them in to center by a unilateral act. The federal constitution distributes the power between the federal and the state level. This diffusion establishes principles for the distribution of power sharing between federation and states, operating system of initial distribution, laying down the provisions for changing the original distribution of power which created by the constitution.

On the other hand, as federation has complex structure, it is necessary to have a diagram to solve conflicts between states, between states and the federation, and between the citizens and the federation. The two of central principles of the EU law, the direct effect and supremacy, are existing and effective in classical doctrines of federal systems. Despite all its supremacy and direct effect, The EU is not ‘master’ of the treaties. According to Koen Lenaerts: ‘ a government without the means of some change is the means of its conservation’. The situation in the EU, considering the headlights of Mr. Lenaerts, the government of any member state or the Commission can present amendment proposals to the Council which will submit an intergovernmental conference to discuss these proposals. Amendments should be decided by the unanimity of the member states. However, the EU does not possess the “competence of competence”, which means the EU should be empowered to ex-parte change its treaties, this is why the EU has no more capacity then the member states’ attributions.

The perspective which underline that the EU has the own resources has been formally adhered to in the TFEU. In this case, the EU has its finance from agricultural levies, duties in the common customs tariff, a percentage of the amount resulting from the application of a uniform rate to the VAT assessment base. But, it is comparatively small for to monitor and make effective changes to modify financial architecture in the EU. The EU is struggling to build significant defense, military, and police policies. Even if the ambitious plans currently on the table for European defense, for example: Commission’s Strategic Objectives for 2010 or CBRN which has been in place since 2004, yet it is difficult to see why current proposals should be more fruitful than those of years past or, even if they are palmy why they should take a ‘European Form’.

 Concluding Remarks

According to Albert Einstein: ‘ We cannot solve problems with the same thinking that they were created’. Since the creation of the European Union, the classification of the EU has been a problem. What we call the EU as a federation, as a regulatory state? The EU is neither another example of the federation systems existing or neither a simple regulatory state which is trying to solve the problems with its limited powers attributed by its member states. The EU has a separated institutional framework, which are European Council, European Parliament, the Commission, the Council of the Ministers, and so on, with this schema of institutions I argue that EU has enough competence to create a recognizable public sphere. Secondly, albeit, the EU has no bicameral legislation system, the member states may arise to keep their interests in the tripartite or quadripartite current system of the European Union.

According to treaties of the European Union, there is an identifiable division of power between member states and European institutions. For example, the Commission is the only authority on the competition policy in the EU, or the member states keep their exclusive competences on the citizenship of member states. At the same time, the EU law enjoys its supremacy above the member states’ law systems. On the other hand, as I mentioned above, the EU law is directly applicable to the persons or states which they addressed. I argue that with this supremacy and direct applicability, there is a direct link between the EU and the citizens of the member states. The EU has it own resources which are defined by the treaties. They are simply the agriculture levies, duties in the common customs tariff, a percentage of the amount resulting from the application of a uniform rate to the VAT assessment base.

However those arguments do not give the crucial links relevant to the EU and the core of the federalism. The EU has no enough military capacity and there is honestly no willing coming from member states to integrated policy by the EU in this area of activity. On the other hand, EU has no clout in the major activities which are normally driven my national states, namely, the provision of social welfare. Conversely, the EU has no competence of competence which require the power to change unilaterally the treaties to create more competences for itself.

After all these inputs, the EU is no classical federal system or neither, like Giandomenico Majone’s explications, a regulatory state. The reality of the EU possess both sides features. First of all, Europe’s constitutionalism is far from being a base for the federalism with its all aspects. However, the EU also embraces the federalist elements like the supremacy and direct applicability. It is for this reason that the EU is only a form of federalism intergovernmental. With this in mind, the European Union’s construction may let to liberate to new form of federalism, even if their consolidation ask for more effort and time.

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