A Federalizing Union

Enrique Barón Crespo
Member of the Spanish Congreso de los Diputados (1977-87), Constitutional Father Former President of the European Parliament (1989-1992) and member of it (1986-2008) President of UEF Spain

The federal question accompanies the European construction since its inception. The intergovernmental-federal debate was very present in the pioneering Hague Congress of 1948 and was reflected in its timeless resolutions.

The Schuman Declaration of  May 9, 1950, defines as its final objective “the European Federation”. Cameron’s negotiating proposal to the EU to prepare his failed referendum was to suppress the phrase “an ever closer union between the peoples of Europe” of Article 1 of the TEU, present in the Treaties since the Treaty of Rome. This change would have meant that there was nothing left but a Free Trade Agreement. The phrase was and is key, because it sets a fundamental difference with the European unions of the past, defined by an Emperor, a Dictator or a tyrant.

The central thesis of this article is that the European Union is a federalizing Union, that is to say, that it is a building, persevering, thinking and coagulating process, without ignoring that there are de-structuring elements and, why not, threatening ones, too.

In fact, in Spanish as in other Latin languages the suffix -nte, ( and its variants -ante, -ente, -iente, -yente), is used to form adjectives from verbs, indicating what or who performs the action. The image of the cathedral as an emblematic European building is expressive: its construction lasted for centuries, different styles coexist with different architects and, nevertheless, the result is usually harmonious. In this case, to speak of a federalizing Union means that we refer to a process that has as its ultimate goal the Federation and that, unlike an alliance or pact, does so with a will of permanence and by applying majority rule.

In Germany, where Federalism has a European dimension and not only an internal one (as reflected in Article 23 (Europa Artikel of its Fundamental Law), the Solange jurisprudence of its Constitutional Court following the Maastricht Treaty created the neologism Staatenverbund as an intermediate step between a Confederation (Staatenbund) and a Federation (Bundestaat), which can be translated as a Federalizing Union of States.

Since this is not about creating a sect with revealed truth but a pragmatic and balanced construction, it is interesting to examine the current reality of the EU from this perspective. To do so, it is useful to discuss the main features of modern Federalism as described by Madison in the Federalist Papers Nos. 10 and especially 51[i]. Its essential characteristics are:

- The will to share a destiny in a Union as the best system to guarantee peace, freedom and prosperity. Federalism is established on this consensus with a will of permanence and with the active and loyal cooperation between institutions and individuals who have the pride of sharing the same values while preserving their respective integrity.

- The central power of the Federation has a defined core of competences: citizenship rights, internal and external trade, defence and foreign relations, treasury and currency.

- Subsidiarity is a fundamental component of the system, which revolves around the citizen. Its definition is clearer in the American Constitution (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”; Amendment X) than in the Treaty of Lisbon ( “The Union shall intervene only if, and to the extent that, the objectives of the intended action cannot be sufficiently achieved by the Member States, either centrally or at regional and local level”, Article 5.3 of the Treaty of the European Union – TEU). Subsidiarity allows the citizen, the central subject who legitimizes the democratic system, to ascend or descend the ladder of federated powers, from municipal to federal. People do not live at the top of the system, but in their town or in a neighborhood of the big city. That is the meaning of the famous phrase of the Speaker of the House of Representatives, Tip O’Neill: “All politics is local”, which expresses the importance of maintaining the nexus between daily problems and aspirations and major decisions.

- Territoriality. There are precise borders between the constituent units and a “double citizenship” of the State and the Federation, which establishes a bicameral system, usually granting greater representation of the smaller units in relation to their population.

- The non-centralization. In the Federations the power resides in several centres and is deliberately distributed to safeguard their freedom and vitality. The system is contractual, and the central power cannot eliminate, unilaterally or arbitrarily, the federated powers. This principle cannot be mistaken with decentralization, where the central government delegates some specific and limited powers to subordinated units.

- Constitutionalism. The Constitution is the framework in which relations are developed through the application of the federal loyalty principle, according to which the parties commit themselves to the principles, objectives and joint mission. This framework also includes the competences, rights and responsibilities of the parties, which in turn have their own constitutions in accordance with the general principles of the Federation.

- Balance of powers, between both the central State and the federated powers, as well as among them, guaranteed by an independent Constitutional Court.

- Autonomy. The Länder are free to govern themselves insofar as they do not violate the principles necessary to maintain the Union.

- Permanent negotiation. Decisions are made in processes involving continuous negotiation between the federal power and the federal states, and often also among them. As Kalypso Nicolaïdis points out, “Federalism is such a universal and resilient principle precisely because it does not resolve the tensions which exist between the two poles, the One and the Many. In a federation, each part is itself a whole, not a part of a whole, and the whole itself is more than its parts”[ii]. Economic, financial and administrative management is shared with the central power in a constitutional framework. The rule of the majority rules.

Madison considered that these features of Federalism became necessary when the dimension of the organization reached a certain limit[iii]. He accepted that there were cases of successful unitary republics, such as the city-state of Athens or the Serenissima Repubblica of Venice, while he considered that the Thirteen Colonies were too large in territory and population to function as a unit.

Federalism is fundamentally based on an attitude, the federal loyalty, allowing for conflictive cooperation on the basis of a balanced distribution of powers with checks and balances.

It is not so much a method to solve problems of diversity as to positively channel forces that could become destructive if confronted. In fact, it allows and affirms diversity, because it is based on the implicit recognition that it generates force. Using an expression of Professor Elazar: “If a political system is established as a whole comprising two or more fora, plans, spheres, estates or levels of government, each of them endowed with legitimacy and a role set in the constitution of the general system, which has its own institutions, powers and responsibilities, this system is bound to be a federal system”[iv]. It is significant that these federative principles are also those that inspire the form of modern productive organizations: the large multinational corporations. The great guru of business management, the Austrian-American Peter F. Drucker, defended the principle of Federalism “as it involves centralized control in a decentralized structure”[v].

If these criteria are considered, the current EU fully or partially shows many of the federal characteristics in its Community dimension: the Commission has the legislative initiative; there is legislative co-decision and a competent Court of Justice. In the intergovernmental dimension, the principle of unanimity rules, there is no legislative co-decision and no competent Court. There is even one pillar, the monetary one, which has a pure federal structure with the ECB as the top of the central banking system.

The main challenges the EU faces require federative progress. Federative progress is needed in the Economic Union, in order to move from the European Stability Mechanism to the European Monetary Fund, and from a Deposit Guarantee Fund to a Treasury.  We need to reach an agreement as well in the next multi-annual financial framework, including the fiscal issue.

This federative progress is also needed in the fight against climate change, in immigration and asylum, and in a foreign, security and defence policy, so the EU can become one of the great protagonists in the world. There are instruments, such as strengthened  cooperation and the passerelle clauses, that allow more progress or to move from unanimity to qualified majority voting. We are also called upon to integrate the Treaty of Governance, Stability and Coordination – the dreaded Fiscal Compact – into the Community framework. Consolidating Federalism out of necessity and obligation, not just out of passion, is an absolute priority in the next European legislature.

^[i] Alexander Hamilton, James Madison y John Jay, The Federalist Papers, Bantam Classics

^[ii] Kalypso Nicolaïdis, Constitutionalizing the Federal Vision?, Anand Menon and Martin Schain (eds.)

^[iii] James O’Toole and Warren Bennis, «Our Federalist Future: the Leadership Imperative», California Management Review, vol. 34, n.º 4, 1992

^[iv] Daniel J. Elazar, Exploración del federalismo, Barcelona, Editorial Hacer/Fundació Rafael Campalans, 1990, pag. 43

^[v] Peter F. Drucker, The Practice of Management, Harper Business, 1993.