EU as a Federal State

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MichaPiotr Kaszubski

Jean Monnet Chair of European Constitutional Law

Faculty of Law and Administration

University of d

European Union as a Federal State

A word of introduction

Contrary to what the majority of the constitutional law doctrine claims, the notions of

the federation and the state are not wholly inseparable. Our world is changing so quickly

that precise definitions from years long past cannot convey the full meaning of certain

complex factual constructs. That is why I suggest tackling the problem in a different way.

First we shall try to find certain federalist elements in the European institutional setting and

then we shall examine whether that setting can be called a state sensu stricto.

In this aspect, the theory of the federal principle will be followed. Vernon Bogdanor

referred in his essay1 to Wheares magnum opus2, in which the author had described

federalism as a legal principle and not a political one. The federal principle implies that legal

sovereignty is shared between at least two layers of government, divided territorially, of

which one has the dominant role, but the rights of other are guaranteed by the federal

constitution. According to Wheare, three conditions must be fulfilled for a federal setting to

exist. Firstly, there must be a written legal text, containing the principles of power-sharing, a

constitution of some sort. Secondly, that text cannot be arbitrarily changed, i.e.by only one

part to said power-sharing. Thirdly, an independent arbitration institution must exist, whose

interpretation of the primary text is uniform and binding; this is usually the domain of

supreme or constitutional courts. In the authors opinion, no single state fully exemplifies this

principle; perhaps it is even impossible to fully define how a federal government should look

like since the concept is constantly evolving.

Wheare seems to believe that the federal principle serves a special purpose. This

purpose, which was first expressed by Dicey3, is to preserve a tenuous relationship between

distinct regions which out of peculiar sentiment for each other desire union without seeking

1Bogdanor, Vernon, Federalism and the Nature of the European Union, Royal Institute of International Affairs

2003.2Wheare, Kenneth Clinton, Federal Government, Oxford University Press 2003.3Dicey, Albert Venn,Lectures Introductory to the Law of the Constitution, Liberty Fund 1982.

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unity4. He writes that a federal state is a political contrivance intended to reconcile national

unity and power with the maintenance of state rights.

It has to be emphasised that the federal state is only one of the manifestations of the

federal principle. D. Elazar5 and P. Pescatore6 believe that since federalism is a legal

philosophy, it can be adapted to all political contexts the municipal, national and

supranational settings. They formulate two basic prerequisites for practical application of the

federal principle: the quest for integration and a genuine respect for the autonomy and

legitimate interests of the participant entities. In their opinion, Europe has been implementing

the federal principle for years and is on the verge of becoming a true federation the

meditations over its statal character or the lack thereof are of no real importance.

A more modern outlook on this topic has been proposed in the famous Joschka

Fischers speech7. He seems to support the above authors and suggest that there is a

possibility of the Third Way being a federation without being a state. In this way, he

proposes to overcome the stylised dichotomy of the Confederacy of European States

(Staatenbund) and the European Federal State (Bundesstaat).

I suggest trying and matching an amalgam of the above concepts to the political reality

of the European Union.

Federal characteristics of the European Union

A new order of international law

The European legal order is enshrined in the Founding Treaties which define the

institutions, delimit their powers and compel them to respect the rule of law. Those texts have

been jointly drafted by the governments of the Member States and approved in referenda or

other popular vote instruments by their respective peoples. Just as the different organs of

government have to comply with the national constitutions, so the Member States are obliged

4Ex pluribus unumprinciple.5Elazar, Dan, Options, Problems and Possibilities in Light of the Current Situation, in Dan Elazar (ed.), Self

Rule - Shared Rule, Turtledove Publishing 1979.6

Pescatore, Pierre, Preface - Courts and Free Markets [in] T. Sandalow & E. Stein (eds.), Courts and FreeMarkets, Oxford Clarendon Press 1982, Vol.1, pp. ix-x.7The German Foreign Affairs Minister gave his speech at the Humboldt University in Berlin on 12 May 2000.

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to comply with the Treaty rules. The notion of the rule of law is in my opinion of utmost

consequence, since it allows protecting all other fundamental values.

Does it mean that the Treaties created a new international order, typical for a

federation in the making?

The power to legislate

There are certain characteristics typical for a federal state in the European institutional

setting. First, there is a central seat of legislative authority. This authority is held jointly by the

Council composed of ministerial officials of the Member States and a directly elected

European Parliament. The Council and the Parliament share the power of co-deciding

legislative, administrative and budgetary acts, which are proposed by the Commission. This

legislation, albeit in limited fields, can directly shape the legal position of individuals and

Member States without the medium of national law.

The Council might be considered an upper chamber, a Senate of sorts, where the

Member State plenipotentiaries, few in number, try to rule by common accord since their

vetoing power is dwindling with every successive Treaty qualified majority voting became

the norm in many areas, meaning that the Unions decision no longer require the concurrence

of all the Member States. The Parliament, on the other hand, can be deemed to be a chamber

representing the different ideologies shared by peoples of Europe, whose members are not

anymore delegates of the Member States and sit not according to nationality, but according to

which of the transnational party group they belong to.

Since this issue will be the focus of a separate presentation, I shall not dwell on it too

long, but I would only like to point out that such constructs are very typical for federalist

institutional settings, when one chamber represents the separate regions (States, Territories,

Lnder, Gemeenschapen) of the federation, while the other represents the collective of their

citizens. The raw legislative power of the Parliament is still minor compared to that of the

Council, but the historically most important power of supervision, in this case the power to

make the Commission step down, lies exclusively with the Parliament. It has always been the

domain of the people to force the executive to quit, not the aristocracys. Another important

responsibility, the budget, traditionally called the power of the purse, also lies with the

Parliament.

The Commission a General Secretariat unlike no other

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Another factor that reinforces the inward pressure of the Community is the

phenomenon of the Commission. Although it cannot be called the European government,

even per analogiam, it nonetheless fulfils a role that has no counterpart with other

international organisations. First, the Commission is, at least nominally, wholly independent

from the Member States after its appointment and parliamentary approval. Second, the

Commission enjoys a near-exclusive right of initiating legislation. Third, the European

Commission is the driving force of the European integration process. The aim of the

Commission is to secure the general European interest (providing we accept the existence

thereof), protect the smaller Member States from majorisation and ensure lasting balance

between the larger Member States.

It is noteworthy that always when an amendment of the Treaties is considered, the

status of the Commission is discussed. The federalists tried to strengthen the Commission by

either subjecting it to parliamentary or even direct8(!) election, while devotees to the Europe

of Nations belief sought to depreciate it by turning the Commission into a secretarial servant

of the European Council.

Unbreakable bonds

There are also certain important economic consequences of the Union. First, the

territory of the Union is a single and common market, ensuring the free movement of persons,

goods, services, capital and payments. The Member States can restrict those four freedoms

only in very specific cases, interpreted in a restrictive way. Modern federations, most notably

the United States, have established multiple economic ties between the regions which cannot

be broken without endangering the very existence of the regions concerned. Such a link exists

in the Union in the form of the common market and the acquis pertaining to its

implementation. What is even more important, most of the Union is bound by a monetary

union and uses the single common currency, the euro. Surrendering the pecuniary sovereignty

(considered since the time of the medieval and Renaissance scholars one of the most

important attributes of power)9and accepting the leading role of the European Central Bank

in shaping the monetary policy was surely a step of profound importance and a sign of

increasing federalist tendencies in the common economic area of the Member States.

Although usually establishment of the common currency is preceded by a formal act

8See for example: Mancini, Federico G., Europe: The Case for Statehood, European Law Journal 1998, Vol. 4,

pp. 29-42, also available at the Jean Monnet Program website; Habermas, Jrgen, The European Nation-Stateand the Pressures of Globalization, New Left Review 1999, No. 235, pp. 46-59.

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introducing a federal union, it cannot be denied that a monetary union can lead to an upside

down formation of the European identity10. After all, no federation can exist without a single

currency, since then it would be next to impossible to plan the expenditures and incomes.

Even where regional currency can be used as legal tender, e.g. in the United Kingdom, the

federal currency has to be accepted as well. It is not wholly true in the Union, though, since

the states refusing to enter the EMU do not accept the euro, at least do not officially do so.

We cannot forget though, that economic ties by themselves cannot create true unity

as the example of other close trade pacts or cartels (e.g. NAFTA or OPEC) clearly shows. The

European Court of Justice has clearly stated that socio-economic integration is only one of the

facets of the European desire for unity11. The Courts opinion seems to imply that the ultimate

purpose of the Community is one of political integration.

We, the Citizens of Europe, decide12

The notion of European citizenship is one of the most obvious federal characteristics

of the Union. However, this citizenship does not come from membership in the European

nation (more on this later), since it is a corollary to national citizenship of the Member States.

Yet, it does not serve a merely decorative function. Its main purpose is to safeguard equality

of treatment between the nationals of different Member States, as regards their rights and

duties in the common legal order, or perhaps better put, in the European federal setting. The

concepts of democracy, equality and citizenship are inseparable, because a democratic

institutional setting presupposes equality13 (in law and in fact) between its citizens;

consequently, the European citizenship is one of the ways to gradually lessen the democratic

deficit in the Union14. Thus, tighter bonds between the nationals of various Member States

can be forged and consequently, the animus foederationis is fostered, as the democratic

9The core of the core of national sovereignty, as Lady Margaret Thatcher has once called it.10As James Madison suggested once, federalise their wallets and their hearts and minds will follow.11ECJ Opinion 1/91, ECR 1991-10, p. 6102.12It was the subtitle of a European-wide discussion held on the Futurum webforum in the aftermath of the firstdraft Constitutional Treaty fiasco.13 A democracy is not only a representative or parliamentary political regime, but also and above all, anassociation of equal citizens who are defined as such directly. La Torre, Massimo, Citizen, Constitution andthe European Union [in] La Torre, Massimo (ed), European Citizenship: An Institutional Challenge, KluwerLaw International 1998. pp. 435-457.14

Bellamy, Richard, The Constitution of Europe: Rights or Democracy?[in] Richard Bellamy, Vittorio Bufacchiand Dario Castiglione (eds.),Democracy and Constitutional Culture in the Union of Europe, Lothian FoundationPress 1995.

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equality of the Unions citizens is generally considered essential for the federations

survival15

But can this abstract idea be compared to a national citizenship? The European

citizenship has been given attributes, mechanisms and instruments that manifest in a manner

not mediated through national, State institutions16. According to J. Weiler, those are the

attributes of true citizenship. Consequently, the possibility of direct contact with, influence in

and protection from the European institutions independently of the Member States became the

essence of this citizenship.

Having a different outlook on the matter, Erin Delaney believes that European

citizenship can be called a nested citizenship17, assuming complex links between multiple

loyalties. Unlike an established federal state, the European Union must constantly strive to

bind its citizens even closer to itself, since in times of strife the citizens of the Member States

are keen to follow their national allegiance, further endangering the stability of the European

system18. Since the well-being of the Union depends on preventing falters in loyalty on the

part of the Member States (and consequently of their nationals), fostering that loyalty on the

federal level is the key to avoiding conflicts. Federal-level institutions must work at creating

an environment which will encourage and strengthen the individual citizens trust and thus

willingness to comply with the law19. The belief in the rule of law and the importance of

trust-enhancing principles of Community law20 are essential for the progressive

development of the relationship between the Union and its individual citizen.

Judicial protection on the European level

There is also a specialised system of independent judicial protection for the Union

citizens, who can invoke their directly effective rights 21or demand compensation for losses

15 Kimminich, Der Bundesstaat [in] Handbuch des Staatrechts der Bundesrepublik Deutschland, C.F.Mller1987, p. 1128, quoted in G. Federico Mancini, op.cit.16Weiler, Joseph H.H.,European Citizenship Identity and Differentity[in] La Torre, Massimo, op. cit.17Delaney, Erin, Right to an Effective Remedy Judicial Protection and European Citizenship, Royal Instituteof International Affairs 2003.18 Choudry, Sujit, Citizenship and Federations: Some Preliminary Reflections [in] Kalypso Nicolaidis andRobert Howse (eds.), The Federal Vision: Legitimacy and Levels of Governance in the US and the EU, OxfordUniversity Press 2001, pp. 377-402.19Follesdal, Andreas,Achieving Stability? Forms and Arenas of Institutional and National Balances in the DraftConstitutional Treaty, Federal Trust Constitutional Online Paper Series 2004, No. 6.20

Compare Lenaerts, Koen, In the Union We Trust: Trust Enhancing Principles of Community Law,Common Market Law Review 2004, Vol. 41, pp. 317-343.21C-26/62 Van Gend en Loos, ECR 1963, p. 12.

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incurred because a Member State has violated Community law22. It belongs to the courts of

the Member States, which became in this way provincial courts of the Community. Even

though, until now, there is no Community judicial body serving as a court of higher instance

for the Member State courts, we can consider the European Court of Justice to be the

Constitutional Tribunal of the Union, whose interpretation of the Founding Treaties is

exclusive and binding and which can arbitrate between the powers of the Union and the

Member States. The Court of First Instance can be deemed to be the Supreme Administrative

Court, accessible also for individuals seeking annulment of acts of the Community

institutions. Although precedent is not officially recognised as a source of obligatory norms,

the enormous influence and prestige attached to the Community judicature affect the state of

European affairs and greatly influence the national courts. This method of shared competence

is also typical for federations, since not all federal states envision a judicial recourse to federal

courts.

The European system of judicial protection performs and additional task. Its role is to

guarantee formal equality with respect to the federal-level government23even though there

are certain variations allowed in the position of the citizen towards his or her respective

national government24. The Union courts enforce formal equality by ensuring the primacy of

Community law, monitoring its uniform and effective application in the whole common-

market area and preventing the Member States from overstepping the boundaries of their

procedural autonomy. Thus, an operative system of protecting the common European

democratic values25has been established.

Moreover, the institutions of the Community oversee the activities of the Member

States to a great extent. The Commission supervises the implementation of European law and

may take steps to ensure that a Member State fulfils its obligations under the Treaties,

including taking it to court and even having a fine imposed on it. This disciplinary and

22Joined cases C-6/90 and C-9/90 Francovich and Bonifaci, ECR 1991-9, p. I-5237.23Jackson, Vicky, Citizenship and Federalism[in] Thomas Alexander Aleinikoff and Douglas Klusmeyer (eds.),Citizenship Today: Global Perspectives and Practices, Carnegie Endowment for International Peace 2002, pp.127-182.24Schuck, Peter, Citizenship in a Federal System, Yale Law School Program for Studies in Law, Economics and

Public Policy Working Paper 2000, No. 225.25OKeeffe, David and Antonio Bavasso, Fundamental Rights and the European Citizen[in] Massimo La Torre,op.cit., pp. 251-265.

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harmonising activity of the Court has made the Court as in all federations the motor of a

community or federal integration26.

The status of Community law

The most obvious federal elements can be perceived in the very status of Community

law. This law has primacy over the law of the Member States 27, including their constitutional

norms28. Under certain conditions, either explicitly stated in the Treaties29, or derived from

the Community case-law, the citizens of the Union can claim rights stemming from the

common provisions, even though their national law is silent on the topic or even actively

contradicts those rights. In this aspect, it has to be reminded that the primacy of federal law

over regional law is one of the most important aspects of the federalist setting. After all, if the

regions were not bound by federal law, what reason would be in maintaining that federation?

This way, one of Wheares criteria of federalism is fulfilled.

If the federation and the regions are to function without unending disputes for

jurisdiction over a given issue, a clear delimitation of their respective powers must be

determined. The European Union is no exception to this rule. The competence rests

exclusively with the Member States by default, but there are also areas of shared competence

and those of exclusive competence of the Community. The sectors of exclusive competence

are few in number, but nonetheless quite important for the collective economy of the Member

States, since they include the common commercial policy, common competition policy and

common customs policy. The Community legislates exclusively within those fields, barring

the Member States from adopting internal legislation or concluding international agreements.

What is even more important, according to the established case-law of the Court, the

Community enjoys implied powers, allowing it to exercise its public international law

personality and negotiate international treaties in order to further the objectives assigned on

the internal level30. Although the Community does not enjoy that what the German doctrine

calls Kompetenz-Kompetenz (more on this later), it can, and quite often it does bend the

26Croisat, Maurice and Jean Louis Quermonne,Leurope et le fdralisme. Contributions lmergence dunfdralisme intergouvernemental, Montchrestien 1999.27C-6/64 Costa v. ENEL,ECR 1964, p. 594.28

C-11/70Internationale Handelgesellschaft, ECR 1970, p. 1134, para. 3.29According to Article 249, direct effectiveness is typical for Community regulations.30C-22/70ERTA/AETR,ECR 1971, p. 274.

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limits set on its legal activism. According to J. Weiler31, the allocation of powers in the Union

is in most respect indistinguishable from that which you would find in advanced federal

states, complete with the common problem in such states frequent disregard for this

allocation.

All the above reasoning is aimed at proving the fact, that the European Unions

institutional setting is clearly a federalist one, fulfilling almost all the criteria set by public

international law. It is now prudent to consider the other element of the concept of the federal

state. Since we established that the Union is federal, can we also find the elements typical

for a state?

Can the European Union be considered a state?

When considering the structure of the Union, I shall refrain from discussing the

decorative elements like the blue flag with 12 stars, the common anthem and the European

Day. Although is cannot be denied that such symbols bring the European peoples closer

together, their importance in the institutional systems is very limited. Moreover, the Union

does not have a Head of State or a Head of Government, since the Council Presidency and the

President of the European Commission do not perform this function. It can be disputed

whether the European Council fulfils the criteria for being considered a collective Head of

State, the same way as the Councils of State in the socialist countries operated. I think that

such an assumption in the current state of affairs is unfounded.

The Court of Justice has more than once described the Founding Treaties as the basic

Constitutional Charter32. Does this mean that the EU already has become a state in statu

nascendi? After all, the notion of a Constitutional Charter implies some sort of constitutional

norm, which until now has been only invoked in the context of a state. Various important

judgments of the ECJ have clearly proven that the Founding Treaties go far beyond classic

international treaties and contain certain elements typical for modern constitutions.

Failings of the Union administration

31Weiler, Joseph H. H., Federalism and Constitutionalism: Europes Sonderweg [in] Kalypso Nikolaidis and

Robert Howse, op.cit. also available at the website http://www.jeanmonnetprogram.org/papers/00/001001.html32C-294/83Les Verts, ECR 1986-4, p. 1365, para. 23. See also Opinion 1/76 of 28 April 1977, ECR 1977-I, p. 758para. 12; Order in C-2/88Zwartfeld,ECR 1990-7 I, p. 3372; C-134/91Beate Weber, ECR 1993-I, p. 1093, para. 8.

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The Founding Treaties, although surely extensive in scope, lack some of the essential

elements necessary for a complete system of sovereign state governance. First of all, the

administrative apparatus of the Union, albeit denounced by euro-sceptics to be an all-

encompassing stifling force, is in reality underdeveloped and totally unprepared for the kind

of effective governance that a modern state has to employ. I shall now briefly describe the

proofs for this assertion.

First of all, the Union does not have the legal means to implement its decision the

fate of Community law lies in the hands of national administrations and courts. The

Commission does not have the administrative and technical capability to monitor effectively

the implementation process and has to resort to random checks and information of

misappropriation.

Second, the budget of the Community is only a fraction of the GDP of the Member

States; moreover, the States are very reluctant to divert more of their national funds to the

common purse. Even as the Union has its own resources and it does not depend on

contributions from the participating members, it does not have the power to levy taxes and

increase its revenue if needed there is no fiscal federalism, as T. Brzel33calls it.

Third, the civil servants of the EC are relatively few and number about half of the

municipal staff of a large European city like Paris or London. They are unable to function in

the way the civil service of a state does.

Fourth, the Union does not possess the coercive system that is required for state

security. In every state there are dissident individuals that do not accept the status quo,

resorting to crime and political subversion. Since ius puniendi(the power of the sword, as it is

sometimes called) remains exclusively with the Member States, the EU has to depend on their

police, judicial and penitentiary systems to protect its interests. I admit that the legislation in

the Third Pillar is rapidly gaining momentum. The European Arrest Warrant has been adopted

and implemented; consequently, the European Public Prosecutors office might be

established. Even taking that into consideration, we have to remember that a state without

armed forces can exist34, a state without police cannot35 As Duchacek stated, one of the

ten yardsticks of federal state government is that there is no federal government known to

me where the central authority does not have this exclusive control, or where it lacks the

33Brzel, Tanja and Thomas Risse, Who is Afraid of a European Federation? How to Constitutionalise a Multi-Level Governance System, Jean Monnet Working Paper 7/00, available at www.jeanmonnetprogram.org34

E.g. Iceland, Japan, various small insular countries.35 There is an exception to this rule Switzerland has no federal police, only the regional (cantonal) policeforces.

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coercive machinery which is the form in which most people in fact experience the power of

the state.36This lack of direct imperiumover an individuals fate might be the reason that

the majority of the population in the majority of Member States retain a far stronger sense of

common citizenship within the `nation-state' than with the EU as a whole. If this is so, it is hardly

surprising since states have far greater power over people's lives than the EU.37

NoKompetenz-Kompetenz

The Community and the Union act on the principle of conferral. All their powers must be

explicitly or implicitly bestowed by the Member States. It is contrary to the classic definition of a

state, which has the self-sufficient source of political power, from which all specific political

powers are derived38. Consequently, an independent state may legislate in all fields except for

those that are specifically barred by its constitution39. The Community has no powers of its own.

All its actions must be based on the specific provision in the Treaty40and follow the principles of

proportionality and subsidiarity41. As the jurisprudence of the ECJ shows, this requirement is no

mere formality and many an act of the institutions has been declared null and void because it had

lacked the proper legal basis.

This problem corresponds with the clash between the hierarchy of norms and the

hierarchy of real power in the European Union. Although the law of the Union is the supreme

law of the land, executive authority remains with the Member States, who have to confer

additional competence on the Union in order for it to exercise its law-making powers.

The blurred executive power

The present institutional setting of the Union, governed by the principle of institutional

balance, does not really correspond to the classic principle of the separation of powers42. The

complex interplay of checks and balances does not necessarily weaken the whole, but instead

gives a different result the executive and the legislature are entwined and the borders

36Duchacek, Ivo D., Comparative federalism: the territorial dimension of politics, University Press of America1987.37Newman, Michael,Democracy, Sovereignty and the European Union, Hurst 1996, p. 174 et seq.38Gamer, Bryan A. (ed),Blacks Law Dictionary 8thEdition, West Group 2004.39E.g. the US Constitution forbids the United States to grant titles of nobility or issue ex post factolaws, theJapanese Constitution forbids the Empire to maintain armies of any kind or to declare war.40See, in this aspect, e.g. ECJ Opinions 1/94 (ECR 1994-11/12, p. I-5267) and 2/94 (ECR 1996-3, p. I-1788)curbing the extensive abuse of the Article 308 EC, which served the Council previously as the rubber clausefor external EC powers.41

As defined by the Article 5 EC, Protocol 30 to the EC Treaty and Article 9 of the Draft Treaty.42 de Secondat, Charles (Baron de Montesquie), The Spirit of Laws, public domain edition at the websitehttp://www.constitution.org/cm/sol.htm

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between them blur. Since all the Community institutions (even the Court of Justice, to a

certain extent) participate in the legislative process and both the Council and the Commission

perform the executive duties it would be very difficult to reorganise the UE in such a way as

to ensure the separation of powers in the classic sense.

Even if the Commission were furnished with the powers and responsibility that come

with the concept of a states government it would not solve the present problems. Considering

that there are three fields of executive power that are believed to develop significantly in the

future (Economic and Monetary Union, Police and Judicial Cooperation in Criminal Matters

and Foreign Security and Defence Policy) and taking notice of the fact that the Founding

Treaties quite clearly show that the Commission should not be the main decision-making

body in these areas it seems unreasonable to try and disturb the present setting in order to

make it more similar to national institutions, as this would not reflect the political reality43.

No single European nation

It is generally accepted that a state has to be populated by one or more nations

(although there are also dissenting opinions44). In the modern world, states are inhabited by

citizens of different cultures and origins, speaking different mother-tongues and having

multiple affinities. It is acceptable and unavoidable. Moreover, retaining of linguistic diversity

could be the key to saving the state from secession, as it was the case with Belgium,

Switzerland, India and the Republic of South Africa. Thus, contrary to what some researchers

believe45, the lack of the European lingua francadoes not really prevent from establishment

of the European nation. However, the nationals of such multi-lingual states are still bound by

common duties and desire a common goal. Can it be said that such a mindset exists in the case

of the European citizens?

The Treaty of Rome decided that the Community strives to create an ever closer

union. However, the said union was to happen among the peoples of Europe to ensure the

economic and social progress of their countries. The brave federal visions of the European

Defence Community and the European Political Community had failed miserably. I think that

the framers of the EEC Treaty did not want to follow those footsteps. It also seems reasonable

to remind that while drafting the Treaty of Maastricht, the draft treaty presented to the

43MacIntyre, DavidMaking Europe more democratic will also make it too powerful, The Independent, 19 March1999.44 J.H.H Weiler suggests comparing the following essays of Neil MacCormick: Sovereignty, Democracy &

Subsidiarity[in] Richard Bellamy et al., op.cit.; Beyond the Sovereign State, Modern Law Review 1990, vol. 56,p. 1; The Maastricht Urteil: Sovereignty Now, European Law Journal 1995, vol. 1, p. 259.

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European Council in December 1991 opened with the words This Treaty marks a new stage

in the process leading gradually to a union with a federal goal. The vocal British opposition

led to the change into leading to create an ever closer union among the peoples of Europe

where decisions are taken as closely as possible to the citizens. It was undisputed that at the

time of Maastricht Europe was composed of peoples and not of a single people. Those

sovereign peoples, or perhaps better put, those peoples assembled in their sovereign Member

States did fulfil the federal principle (as demonstrated in the first part of this essay), but they

did not create a federal state.

Even if a feeling of community exists now in the population of certain Member States

(most notably the Netherlands and Luxembourg), maybe also in the shared consciousness of

the European youth46, it is not yet universally accepted. It cannot be disputed that

notwithstanding its cultural richness and diversity, its deep divisions and differences in

collective mentality, the European population is clearly quite distinct from other continents,

bound by common Judaeo-Christian roots and political traditions dating from Ancient Greece

and Ancient Rome, while the European social model is the most important difference

between Europe and America. However, such ties are not enough to speak of the single

European nation that can legitimise the single European state; contrary to e.g.V. Bogdanors

beliefs, the implication cannot be that the European Parliament does not represent different

peoples brought together into a kind of confederal Diet, but rather that it represents a single

people divided by ideologies47. Furthermore, the last year saw a sudden rise in power of the

separatist and nationalist movements in the Member States, revival of extreme-right wing

populism and burgeoning of identity politics and xenophobia. The ideas of Le Pen, Haider,

Bossi, Kjargard, Hagen, de Winter and Giertych are disquieting monuments built upon the

ruins of the old ideologies, as E. Hobsbawn would have called it48.

The other method of inspiring national or supranational loyalty, establishing a nation

from the top down - the belief in the common institutions - also did not succeed as hoped.

Neither the Commission nor the Council, nor the Community judicature had proven to be the

factor that bolstered European loyalties. The feeling of disappointment is especially strong in

45Grimm, Dieter, op.cit.46 Wallace, William, op.cit. He writes: large numbers of young people across Europe treat their Continent,rather than their country, as the space within which they expect to move.47Bogdanor, V., op. cit.

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the case of the European courts. Direct judicial enforcement at the level of the Union has not

been developed; in its place, the national legal systems carry the burden of providing legal

protection for their citizens. Thus, even the European-level derived rights are protected by

the Member States. That is why the citizens of the Member States do not feel a bond of trust,

and consequently, a need for loyalty to and compliance with the European institutions. Erin

Delaney strongly advocates the idea that an individuals direct links to a federal-level court

which protects her rights can inspire federal feeling and encourage the growth of a federal

level citizenship49.

This opportunity in the Union has clearly been lost, as the clumsy and slow

preliminary reference method seems to be the favoured way of protecting the individual rights

stemming from the European legal order. Since direct access is the means of testing the

meaningfulness and hence the integrative power of formal rights50, it is unavoidable that a

prospective European national feels left alone and perhaps even deceived by the lack

thereof51. In such a case, it is difficult to build a society of citizens which could substitute

for the European nation. Europe might become much more relevant to its citizens if they were

allowed to pursue their Community Law rights to the maximum extent52.

The conclusion is that the Union did not obtain its legitimacy from a European

nation (which according to Blacks Law Dictionary is one of the attributes of state

sovereignty53). Although I would like to believe Jerome Vignon54, who claims that a new

quality in the European mentality will emerge from the networking of multiple citizens

inititatives and decentralised democratic movements and actions, I think that the time of the

European identity (perhaps the first supranational identity?) time is not yet come. It may take

years before the lay Europeans internalise the common principles and desire achieving the

common supranational objectives.

48Hobsbawm Eric,Age of Extremes. The Short Twentieth Century 1914-1991, Michael Joseph 1994, pp. 572-574.49Delaney, Erin and Barani, Luca, The Promotion of Symmetrical Citizenship: A Federal Perspective, Journalof European Integration 2003, Vol. 25, No. 2, pp. 95-114.50 Shaw, Jo, Citizenship of the Union: Towards Post-National Membership?, Harvard Jean Monnet WorkingPaper No. 06/97, available at the address http://www.jeanmonnetprogram.org/papers/97/97-06-.html51Shaw, Jo, Citizens Rights and Access to Law, [in] Reich and Micklitz (eds.), Public Interest Litigation in

European Courts, Nomos Verlag 1996.52Szyszczak, Erika, Making Europe More Relevant to its Citizens: Effective Judicial Process, European LawReview 1996, Vol. 21, No. 5, pp. 351-364.

53A state derives its whole authority from the governed.

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The unclear role of Parliament

Some critics also doubt the legitimising role of the European Parliament. Since all

states must possess a legitimate base for the exercise of their powers, the Parliament has often

been invoked as the true representative of the will of the European peoples (since, as it will be

demonstrated below, there is no single European people). Sadly, the theory does not match

reality in this aspect. Although the Parliament is a directly democratic body, at least in theory,

it is also more remote and difficult to understand for the citizens of the Union. As the last

Polish European MP elections clearly have proven, even the MPs themselves do not fully

comprehend their role in the process of government. It is even more obvious when

considering that the European Parliamentary elections are only a sort of sophisticated

domestic political poll. Both the voters and the prospective members do not focus on the

European issues and do not try to build a supranational understanding in the fold of an

European party55.

Moreover, the present function of the Parliament is different that the one of the

domestic legislating body. The most obvious reason to believe so is that the Parliament cannot

initiate binding legislation. It has been described as a critical body set over a distinct whole

against, or alongside, the confederal government56; the Parliament inspects facts and asks

questions, but has little possibility to shape its conclusions into binding norms.

The solution may look easy we could furnish the Parliament with manifold new

powers and try to create the European nation the other way around (the new true seat of power

would create centripetal force which would in turn lead to greater interest and self-

identification of the European voters). In my opinion, that hope is futile. The real game of

thrones and the true clash of kings still happen on the national plane. There is no true political

debate and power struggle on the European level57. Perhaps I am overly cynical, but might the

reason be that it is not really worthy? After all, it is the national voter who decides on the

Council members fate, not the European one, William Wallace seems to point out. In his

opinion, the self-preserving interests of the political and bureaucratic lites in the fifteen

states and, in a worthier vein, the awareness of the latter that, in the eyes of their

constituencies, the national community remains the broadest focus for political life and group

54 Jerome Vignon (ed), Draft Memorandum to the Commission. Approaches to European Governance: ForDemocratic European Governance, Brussels 2001, COM 2001 (428).55 This way, they become second-order elections. See Reif, Karlheinz (ed), Ten European Elections:

Campaigns and Results of the 1979/1981 First Direct Elections to the European Parliament, Aldershot 1985.56Forsyth, Murray, Unions of States, Leicester University Press 1981, p. 186.

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identity58do not encourage them to empower the European Parliament. Consequently, since

the Council does not answer to the Parliament, while the Commission does so only in

theory59, the rare individual that followed its European hearts desire and took part in the

elections, does not really have the feeling of influencing the European policy choices.

On the other hand, many esteemed researchers believe that further empowering the

Parliament may actually lead to efficiency problems60. A huge parliamentary assembly,

divided into artificially-constructed European party fractions, does not really strike us as

being overly effective in reaching important decisions quickly. Investing too much power in

that voluminous structure might as well be the Unions downfall

The Eurocracy phenomenon

Furthermore, the Council does not really help to legitimise the Union. Although the

Community regulates an important part of the Member States economic and social life, it does

not usually perform its duties in a democratic way. It is true that the members of the Council

possess proper legitimacy, but its works do not. As F. Mancini has been pointed out, the

legislating activity confines itself to rubber-stamping, in most cases behind closed doors, drafts

prepared by an ambassadorial college (COREPER) and, at a lower level by numberless61,

faceless and unaccountable committees of senior national experts. It is also interesting to note,

that although aware of this state of affairs, national governments of the Member States have done

little to improve it62.

Having the above reasoning in mind, there is no true source of the Unions legitimacy

other than the Founding Treaties, concluded by the Member States in their public international

law capacity. Although such legitimacy is not really essential for an economic union, it is

indispensable for a modern state to function.

The reasoning above leads to the conclusion that the EU does not have a state-like

institutional system, because it is not a fully sovereign entity. The powers of the Union are

57Grimm, Dieter,Does Europe Need a Constitution?, European Law Journal 1995, vol. 3, p. 295 et seq.58Wallace, William,Rescue or Retreat? The Nation State in Western Europe, 1945-1993[in] Peter Gowan andPerry Anderson (eds.), The Question of Europe, Verso 1997, pp. 21-50.59Though, the case of the Barroso Commission seems to contradict such a statement.60Both Dieter Grimm and Joseph Weiler warned against simple faith in the European Parliament being the Deusex machinasolution to the legitimacy problem.61According to F. Hayes Renshaw and H. Wallace, The Council of Ministers, MacMillan 1997, p. 97: Theexact dimensions of the base of the Council hierarchy is one of the EUs great unsolved mysteries. Hardly

anyone knows how many working groups exist at any one time.62Lodge, Juliet, Transparency and Democratic Legitimacy, Journal of Common Market Studies 1994, vol. 32, p.343/

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conferred upon it by the Member States and exercised on its citizens through the medium of

their governments.

No true foreign policy

Any state, regardless of its form, almost always leaves exclusive external competence

to the government. Even when the institutional system of a given federal state allows the

constituent regions to negotiate and conclude international agreements or even establish its

independent external relations, as it is the case with Belgium (whose communities and regions

wield the ius tractatuum that is parallel to their internal competence). Every true state,

however, no matter how decentralised, possesses the exclusive power to negotiate in the fields

of external security and defence.

Without any doubt, regardless of the lofty ideals invoked by the framers of the

Maastricht Treaty, there is no such thing as a common foreign policy of the Union, let alone

the exclusive power of the Union to shape the fate of the Member States on the international

scale. Everything in this regards remains with the Member States, who have to reach a

unanimous settlement in the Council and are loath to make any concessions to the Union. The

accession of the new Member States will only make this problem more obvious, as we have

had the opportunity to observe during the Iraqi crisis, when the notion of Common Foreign

and Security Policy could be only perceived as a form of black humour.

That being so, it is indisputable that, when it comes to security and defence, the most

vulnerable elements of foreign policy, the Union has no say whatsoever. Since the Union is

comprised both of states who belong to a tight military alliance and of states who pledged

eternal neutrality, there is no prospect of any significant progress in this area and any

exclusive powers conferred without endangering the uniformity of the Union. On the other

hand, it cannot be disputed that the Union or the Community can take certain steps, which are

considered unfriendly and disruptive in public international law, for example imposing a trade

embargo or other sanctions on a third state. These powers are not even remotely comparable

with the sovereign states ius pace et bellum, though.

To sum up, the European Union has no significant common foreign policy that would

prevail over the particular interests expressed by its Member States and no common externalsecurity and defence policy worthy of its name. Since there is no state devoid of those

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attributes, the failures of the Second Pillar show clearly that the European state does not exist.

The Union might well be a federation, but a federation of a very peculiar kind - a commercial

federation. Moreover, as the experience of other federations shows, the division between

politics and economy should be only transitory, either leading to the formation of common

foreign policy in the European federalist framework, or getting even deeper, consequently

leading to The Second Fracture63of the evolving political community.

No catalogue of human rights

Lastly, the modern concept of a state based on the rule of law clearly presupposes that

there exists an extensive catalogue of human and citizen rights which are recognised and

protected by that state. The judicial construct of the fundamental rights of the European

Union, stemming from the constitutional traditions of the Member States, can only be

considered a provisional solution, since the list of fundamental rights and their legal effect

varies greatly from State to State. Even the adoption of the Charter of Fundamental Rights

and the extensive jurisprudence of the ECJ did not change that situation too much. The

Charter was proclaimed as a solemn declaration, binding only the Community institutions and

not the Member States, while the judicial activity of the Court clearly confines its jurisdiction

over Member State transgressions to matters of Community law execution. The inclusion of

the Charter in the Draft Treaty Establishing the Constitution for Europe cannot be considered

conclusive, since the character of that inclusion is still under dispute. To sum up, the Union

cannot be deemed an entity able to provide its citizens with rights that cannot be better

protected at the national level. Thus, we cannot but assume that the Union does not fulfil one

of the most important state functions protecting own citizens from abuse.

Moreover, the Member States did not want to substantially expand the catalogue of the

rights of the Union citizens. Although economic freedom is now a universally accepted

axiom, the technological and social progress should have resulted in bestowing additional

rights, mostly of a political and public nature. That did not happen, instead the Member States

have insisted on maintaining a stingy catalogue of rights no more than mirrors and beads

63Sidjansky, Dusan, The Federal Future of Europe, From the European Community to the European Union, TheUniversity of Michigan Press 2000.

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for the natives64, leading some members of the European law doctrine to believe that the

Citizenship Clause in the TEU is little more than a cynical exercise in public relations65.

On the other hand, the curtness of the catalogue may prove the ideas of certain

authors, according to which the Member States were genuinely afraid that a shift of social

loyalty from the national to the European level may occur if the rights obtained are tempting

and important enough66.

Other elements of the state definition (territory and population) are unquestionable. It

is clear that the European Union has a territory (composed jointly of the territory of the

Member States with certain derogations) and a population (all the citizens of the Member

States are ex legeand inseparably citizens of the European Union, though this citizenship

only complements and does not replace national citizenship67).

The European Union is not a state

All the above-mentioned factors demonstrate that a European State (regardless of the

formula chosen) does not yet exist. Although it cannot be disputed that the scope of

limitations on Member States sovereignty and freedom to act has no equal in the case of

other international organisations, it is not enough to prove that the EU has become a state.

The European Union can at most be considered a Community of States (a sui generis

entity), whose double legitimacy is derived both from the nations of the Member States and

the autonomous national will of the Member States themselves68. For that reason the Union

does not seek to dismantle the current national framework in order to create a European

nation-state69.

64

F. Mancini, op.cit., commenting on Hans Ulrich Jessurun dOliveira, Union Citizenship: Pie in the Sky?[in]Allan Rosas and Esko Antola (eds.) A Citizens Europe in Search of a New Integration, Sage 1995, p. 64.Compare also Siofra OLeary, The Evolving Concept of Community Citizenship, Kluwer Law International 1996.65 Weiler, J.H.H. et al., Certain Rectangular Problems of European Integration [in] Political Series vol. 1,European Parliament General Directorate for Research 1996,p. 20.66F. Mancini, op.cit., suggests comparing the analyses by Grainne de Brca, The Quest for Legitimacy in the

European Union, Oxford Journal of Legal Studies 1996, vol. 16, p. 359 with Koen Lenaerts et al., The Questionof Democratic Representation [in] Bruno de Witte (ed), Reforming the Treaty on European Union: the Legal

Debate, Kluwer Law International 1996, p. 177.67See Article 17 1 EC and Article 8 of the Draft Treaty.68P. de Schoutheete in Une Europe claimed that the democratic legitimacy is divided between the EuropeanParliament and the national parliaments of the Member States. The EP does in a certain way control, or ratheroversee, the Council and the Commission through the means of parliamentary debates, commissions of enquiry

and question time. The national parliaments influence their respective governments in the way prescribed bytheir national constitutions.69See Article 6 3 EU and Article 5 of the Draft Treaty.

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if it is not a state, then what it is?

In the light of the two issues discussed above, it is appropriate to ponder what the

European Union actually is. Can it be a mere international organisation? Some believe that the

answer must be no and put forward certain arguments that support that thesis.

Paradoxically, the issue of the democratic deficit and the lack of institutional

transparency in the European Union is the key to its supranational and not international

character. International organisations are non-democratic in the classic sense, since they

operate by unanimity70or at the very least by common accord, or else their norms are non-

binding on the addressees. The United Nations, for example, have never been seriously

accused of undemocratic ways or secretive manipulations. The Security Council has been

variously described as overpowered, obsolete, badly composed and inefficient, but there were

never complaints about the lack of democracy (which in the case of the Security Council is

obvious at the first sight) or demands as for introducing the principle of the separation of

powers in the UN institutional setting71. The principle of the UNs decision making process

is diplomacy, and not democracy, while, as I. Pernice claims the European Union, in its very

substance, is not only an organisation of states, but, above all, an organisation of citizens

although it has the appearance, at first sight, of an organisation between states 72. This author

seems to favor the approach of D. Thym and W. Eijsbouts73, who believe that the European

Union is a Constitutional Federation.

As Judge Mancini has written, summarising the various authors, insisting on defining

[the European C o m m u n i t y] as an international organisation and describing all that does

not fit well with that definition as frills and rhetorics74 is much like trying to push the

toothpaste back into the tube75. Those, who indulge in such an exercise are either die-hard

acolytes of the neo-realist school in political science, eager to prove that any further progress

70Mancini, Federico G. and D.T. Keeling, Democracy and the European Court of Justice, Modern Law Review1994, vol. 57, p. 175 et seq., quoted in F.G. Mancini, op.cit.71Leben, Charles, A Federation of Nation States or a Federal State?, Jean Monnet Working Paper no. 7/00,available at www.jeanmonnetprogram.org72Pernice, Ingolf,Multilevel Constitutionalism in the European Union, European Law Review 2002, vol. 27, p.518.73Thym, Daniel,European Constitutional Theory and the Post-Nice Process [in] Mads Andenas and John Usher(eds.), The Treaty of Nice and Beyond, Enlargement and Constitutional Reform, Hart 2003, pp. 147-180; andalso W.T.Eijsbouts, Classical and baroque constitutionalism in the face of change (Review essay), CommonMarket Law Review 2000, vol. 37, p. 213; both quoted in Ingolf Pernice, op.cit.74

Pinder, John,European Community. The Building of a Union, Oxford University Press 1991.75Weiler, J.H.H. and Ulrich R. Haltern, The Autonomy of the Community Legal Order Through the LookingGlass, Harvard International Law Journal 1996, vol. 37, p. 423.

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on the part of the Union will falter in the face of unsurmountable barriers76or professors of

international law anxious to maintain their hold on a luscious province increasingly coveted

by constitutional lawyers77.

At the same time, F. Mancini admits that the intergovernmentality of the second pillar,

without any judicial or popular control could prove that the U n i o n can still fulfil the criteria

of an international organisation78.

Given the above, I would strongly oppose M. Croisat and J.-L. Quermonnes view that

the European Union is an international organisation because of its intergovernmental, limited

federalism79. The intergovernmental elements and the resulting unanimity argument are

important, but not decisive. In my opinion, the notions of federal and intergovernmental

are very different in scope if not opposite in meaning. Since we established the federal

character of the Union, we cannot contradict the facts by stating that it is only an

intergovernmental forum and in this way contaminate the system by treating an essential

element as the dominant dimension.

Another concept, that of inverted federalism, has been advocated inter alia by D.

Sidjansky. He maintains that the European Union practices the sectoral approach to

federalism. This approach has been forced by the First Fracture, the fall of the European

Political Community idea80. Since then, the Member States for a number of reasons do not

wish to engage in a global partnership, instead preferring to surrender their sovereignity part

by part. This process has been started with the strategic commodities of coal and steel and has

been continued since the days of the European Coal and Steel Community. In D. Sidjanskys

opinion, the inverted federation will be complete once the Union overtakes all the important

functions. At present, the Union is a consensual democracy, which according to the author

is the search for middle ground by means of negotiation and compromise. Participation in

76F. Mancini refers to Harold Hongju Koh, Why Do Nations Obey International Law, Yale Law Journal 1997,vol. 106, p. 2615, who devoted a highly sophisticated analysis to the origins, the development and the recentdecline of this group of scholars.77 F. Mancini believes that perfect examples of this attitude can be found in Alain Pellet, Les fondements

juridiques internationaux du droit communautaire [in] Academy of European Law, Collected Courses of theAcademy of European Law,Kluwer Law International 1997, p. 193 et seq. or Theodore Schilling, The Autonomyof the Community Legal Order: An Analysis of Possible Foundations, Harvard International Law Journal 1996,vol. 37, p. 389.78F. Mancini suggests comparing Antonio La Pergola, L'Unione europea tra il mercato comune e un modernotipo di confederazione. Osservazioni di un costituzionalista, Rivista trimestrale di diritto e procedura civile 1993,vol. 5, p.19.79

Croisat, M. and J. L. Quermonne, op.cit.80For more details regarding the institutional setting of the EPC, see F. Dehousses Constitutional Commission,Projet de Trait portant statut de la communaut europenne, Paris 1953.

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decisions, adherence to common solutions and the importance of minority opinions make the

burden of qualified majority voting lighter to be borne. Arbitration and long consultation with

the interested parties allows the legislative process to be relatively painless and facilitates the

national implementation of Community legislation. The proponents of the 1996 Luxembourg

Compromise would have never suspected that it would echo in the future federal decision-

making process.

I think that combining the federal elements with the lack of state aspects and the

supranational character of the Community leads to assumption that the Union is a

constitutional order of states or a union of Free States. This union functions mainly in the

commercial dimension, having converted external trade relations into internal trade relations

on the common market81. What is even more important, such trade relations basically do not

interfere with the domestic political and institutional setting of the Member States, be they

monarchies, presidential or cabinet republics; moreover, membership of an economic union is

perfectly compatible with membership of other bodies82.

Observation of the political reality in the Union seems to prove the above idea. The

Member States belong to different supranational organisations, like the WTO, the UN and the

NATO. There are even smaller groups of closely tied states within the Union like the Nordic

Union and the Benelux.

The prospective State of European affairs

There might be a way to create a wholly new basis for the future Union. If the Treaty

is adopted directly by a majority of the European voters and at the same time by a majority of

voters in each Member State, it will be a big step forward, as the Union would then derive its

authority directly from its citizens and no longer from the Member States. This collective

will of the wilful collective (as Karl Marx would have put it) may be the spiritus movensof

the future European Federal State.

Another possibility is to conclude a federal pact, as Olivier Beaud83(and Hendrik

Brugmans84many years before him) seem to propose. This pact assumes that establishment of

81In a way similar to the German Zollverein in the 19thCentury. See more for this aspect List, Friedrich, TheNational System of Political Economy, Ch. 36, Longmans, Green and Co. 1909, public domain edition at thewebsite http://www.econlib.org/library/YPDBooks/List/lstNPEtoc.html82Neuchtel, one of the cantons in the similarly set Swiss Confederation of 1815, was a monarchy (other cantons

were republics); it belonged both to theEidgenossenschaftand to the GermanBund.83 Beaud, Olivier, Fdralisme et souverainit. Notes pour une thorie constitutionnelle de la Federation , Revuedu Droit Public 1998, vol. 1, pp.99-101.

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the federation will not necessarily mean abandoning the current nation-state structure. The

Member States would not be absorbed in the future Federation, but will continue to function

alongside it. The Federation would not wholly succeed the Member States. The true pouvoir

constituant, wielded by the nationals of the Member States, would also be the driving force of

the Federation.

Sadly, I very much doubt it. Such a tremendous change in the perception of the Union

would be impossible for most politicians; moreover, the Member States consider themselves

masters of the Treaties and intend to remain in that capacity85, though some would insist

that in modern democracies States are not masters but instruments of the self-organisation

and self-ruling of the society86. What is even more important, there are some nations of the

Union which would accept the creation of and accession to a new supranational state-like

entity only with great reluctance, if ever. It is out of the question to even consider a majority

vote to establish the Federation87. So what can be done with the results of the British, Danish,

Swedish and Polish vote? The citizens of those states will almost surely reject the Treaty in

popular vote. Does that mean that those states have to withdraw or be excluded from the

Union?

Such problems of monumental importance lead to the conclusion that there is

presently no clear vision of the European future Apart from a few euro-centric Member

States, the common European mentality is not strong enough to warrant transforming the

Union into a true federal state. The divisions between the Member States might run so deep

that the creation of a federal state is unlikely for decades to come. It is wholly possible that

the European Union will never become a state, since even its greatest proponents are wary of

disrupting the current balance of power88.

84Brugmans, Hendrik and Pierre Dusclos, Le fdralisme contemporain; critres, institutions, perspectives, A.W. Sijthoff 1963, p. 41.85See e.g. the German BundesverfassungsgerichtsBrunnerjudgment of 12 October 1993. Similarly the DanishHjesteret in the Carlsenjudgment of 6 April 1998.86Pernice, Ingolf, op.cit.who also suggests comparing the critical remarks to the Maastricht judgment in U.Everling, Sind die Mitgliedstaaten der Europischen Gemeinschaft noch Herren der Vertrge?[in] Festschrift

fr H.Mosler, p. 173.87Even though the second Swiss Confederation was established that way most of the so-called Sonderbund(rebel alliance) cantons were outvoted and forced to join the new state.88

Joschka Fischer said: in other words, the existing concept of a federal European state replacing the oldnation-states and their democracies as the new sovereign power reveals itself to be an artificial construct whichignores the established realities in Europe.

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Then the Community of States, a provisional confederal institutional setting, will have

to be an enduring solution, a unique combination of the intergovernmental and the

supranational, as Tony Blair said.

Other selected sources:

- Basta, Lidija R., The Nation-State Federalism and European Integration TwoDifferent Strategies of Diversities Accomodation?[in] Antonio Jyrnki (ed.),National

Constitutions in the Era of Integration, Kluwer Law International 1999, pp. 151-162;

- Bellamy, Richard and Dario Castiglione, Building the Union: The Nature ofSovereignty in the Political Architecture of Europe [in] Neil MacCormick (ed.),

Constructing Legal Systems: European Union in Legal Theory, Kluwer Law

International 1997, pp. 91-115;

- Bermann, George A.,Harmonisation and Regulatory Federalism [in] Ingolf Pernice(ed.), Harmonization of Legislation in Federal Systems, Nomoc Verlagsgesellschaft

1996, pp. 37-46;

- Blokker, Niels M. and Ton Heukels, The European Union: Historical Origins andInstitutional Challenges [in] T.Heukels, N.M.Blokker, Marcel Brus (eds.), The

European Union After Amsterdam. A Legal Analysis, Kluwer Law International 1998,

pp. 9-50;

- Bothe, Michael, Constitutional, Federal and Subsidiarity Issues [in] Ingolf Pernice,op.cit., pp. 57-60;

- Briffault, Richard, Paradoxes of Federalism[in] Ingolf Pernice, op.cit., pp. 47-56;- Brownlie, Ian, Principles of Public International Law 6thEdition, Oxford University

Press 2003;

- Dashwood, Alan A., The Limits of European Community Powers, European LawReview 1996, p. 113;

- Davis, Rufus, Theory and Reality: Federal Ideas in Australia, England and Europe,University of Queensland Press 1995;

- Grimm, Dieter,Does Europe need a Constitution, European Law Journal 1995, vol.3, p. 296;

- Hartley, Trevor C., Constitutional Problems of the European Union, Hart 1999;- Holzinger, Katharina and Christoph Knill, A Constitution for the European

Federation: A Steady Development of Existing Achievements, Harvard Jean MonnetWorking Paper 7/00, www.jeanmonnetprogram.org;

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- Kokott, Juliane, Federal States in Federal Europe: The German Lnder andProblems of European Integration[in] Antonio Jyrnki, op.cit., pp. 175-199;

- Konopacki, Stanisaw, Dylematy federalizmu europejskiego, Kwartalnik PrawaEuropejskiego 1998, vol. 4, Centrum Europejskie Uniwersytetu Warszawskiego;

- Kramer, Larry, Understanding Federalism [in] Antonio Jyrnki, op.cit., pp. 127-150;

- Lehmann, William, Liis Jaansalu and Sergiusz Waplak, Attribution of Powers andDispute Resolution in Selected Federal Systems, European Parliament Directorate-

General for Research Working Paper 2002;

- Lepsius, Rainer M., The European Union as a Sovereignty Association of a SpecialNature, Harvard Jean Monnet Working Paper 7/00, www.jeanmonnetprogram.org;

- MacCormick, Neil, Democracy, Subsidiarity and Citizenship in the EuropeanCommonwealth[in] Neil MacCormick, op.cit., pp. 1-26;

- Nicolaidis, Kalypso and Justine Lacroix, Order and Justice Beyond the Nation State: Europes Competing Paradigms[in] Rosemary Foot, John Gaddis and Andrew

Hurrell (eds.), Order and Justice in International Relations, Oxford University Press

2003, pp. 125-154;

- Pernice, Ingolf, Harmonization of Legislation in Federal Systems: Constitutional,Federal and Subsidiarity Issues[in] Ingolf Pernice, op.cit., pp. 9-36;

- Piris, Jean Claude, Does the European Union have a Constitution? Does it needone?, Harvard Jean Monnet Working Paper 5/00, www.jeanmonnetprogram.org;

- de Schoutheete, Philip, Une Europe pour tous, Editions Odile Jacob, Paris 1997;- Schwartz, Bernard, From Confederation to Nation, 1835-77, Johns Hopkins

University Press 1973;

- Soar, Camilla, Governing Together in the New Europe: Division of Competences andFederal Models, Royal Institute of International Affairs 2003;

- Wallace, Willam,Less than a Federation, More than a Regime: the Community as aPolitical System [in] Helen Wallace, W. Wallace and Carole Webb (eds.), Policy

Making in the European Community, John Wiley & Sons 1983, pp. 403-436;

- Weiler, Joseph H.H., Europe: The Case Against the Case for Statehood,www.jeanmonnetprogram.org;

- Weiler, Joseph H.H., Parlement europen, intgration europenne, dmocratie etlgitimit, Le Parlement europen, V. Louis and M. Waelbroek (eds.), Brussels, 1988, p.340

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- de Witte, Bruno, The Pillar Structure and the Nature of the European Union: GreekTemple or French Gothic Cathedral? [in] T.Heukels, N.M.Blokkers and M.Brus,

op.cit., pp. 51-68;

- The Annual Report on the State of the European Union, www.isae.it
http://www.isae.it/http://www.isae.it/

Documents

EU as a Federal State