Essays/Emergent Federalism of the European Union

This page will go over the ways in which the EU does and does not resemble a federal system.

Knowledge of the institutions and functioning of the EU is recommended.

As was argued on the federalism page, there are three conditions to be met for a form of government to be considered federal:

1. constitutional protection of the regional governments,
2. the direct effect of law of the general government, and
3. majority-voting in the decision making process of the general government.

Interestingly the paper from which these conditions originate argue that by this definition the current EU is already a federal union of states. So let's go over the arguments provided for each of the conditions.

For the constitutional protection of the regional governments, that papers did not include arguments, probably because the author deemed it well know that the protection of the regional governments (the member states) are guaranteed in Articles 4 & 5 of the Treaty on European Union.

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> Article 4
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> 1. In accordance with Article 5, competences not conferred upon the Union in the Treaties remain with the Member States.
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> 2. The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.
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> 3. Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties. The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. The Member States shall facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardise the attainment of the Union's objectives.
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> Article 5
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> (ex Article 5 TEC)
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> 1. The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality.
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> 2. Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.
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> 3. Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.
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> The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and proportionality. National Parliaments ensure compliance with the principle of subsidiarity in accordance with the procedure set out in that Protocol.
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> 4. Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties. The institutions of the Union shall apply the principle of proportionality as laid down in the Protocol on the application of the principles of subsidiarity and proportionality.
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For the second point the author reminds us of the following:

> [The direct effect of law of the general government] was achieved in Europe by the mid-1960s through the judicial activism of the European Court of Justice, which established via its case law the principles of direct effect and primacy (the Van Gend en Loos and Costa vs. ENEL rulings, respectively).
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Which leaves us with the last point, on which the paper argues:

> the use of majority-voting in the process of legislation itself, attained with the Single European Act of 1987. This is needed in order to make the upper tier fully operative as a second level of government. In acquiring this element, the blocking or ‘veto’ power of individual regional governments is ended within the common sphere of action and a significant measure of regional autonomy is sacrificed for gains in the efficiency of the general government. It thus represents the point when the general government ceases to be adependent or subordinate entity, an agent of the regional governments, and comes into an equal relationship with them; and when the territory of confederalism is exited and that of federalism is entered.
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And the Single European Act *did* (for one) introduce the cooperation procedure allowing legislation to be adopted by a qualified majority vote in the European Council (after being proposed by the Commission and approved by the Parliament).

There is, however, a critical thing that still requires unanimity, the adoption of the multiannual financial framework that regulates how much the EU can spend. Which happens to coincide with one of the two points raised by a different paper called "Who is Afraid of a European Federation? How to Constitutionalise a Multi-Level Governance System" by Tanja A. Börzel and Thomas Rissewho wrote it as a response to a speech by Joschka Fischer.

> The EU only lacks two significant features of a federation. First, the Member States remain the `masters' of the treaties, i.e., they have the exclusive power to amend or change the constitutive treaties of the EU. Second, the EU lacks a real `tax and spend' capacity, in other words, there is no fiscal federalism.
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It is because the EU still lacks those features that the paper goes on to call the EU an **emerging federation**. The two papers cited are different in one signicant way, the John Law paper makes the distinction between two different federal forms of government.

> Until now, it seems, we have by default assumed that the constitutional division of powers (wrongly framed a division of sovereignty) thought to lie at the heart of federalism must occur within the context of a single state, a federation or federal state – because this isthe only model we have known and the idea of dividing sovereignty yields only one federal form. We see here, however, that there is no theoretical reason why this should be the case; that federalism can equally well exist within a multi-state setting and the idea of dividing thepowers flowing from sovereignty more properly yields two federal forms.
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Those two forms are:

* a federal union of states, and
* a federal state or **federation**.

Having established that the EU is a fiscal union away from being a federal union of states, the next question is: Is the EU also an emerging federation? To be a federation, the EU would have to become a single state, so what is a state. There lies a problem, there is no academic consensus on what the definition of a state is.

## References

1. ↑ http://eur-lex.europa.eu/resource.html?uri=cellar:2bf140bf-a3f8-4ab2-b506-fd71826e6da6.0023.02/DOC\_1&format=PDF
2. ↑ http://www.jeanmonnetprogram.org/archive/papers/00/00f0101-04.html