Year XLII, 2000, Number 3, Page 193
A FEDERAL CONSTITUTION FOR EUROPE*
Thanks to the speech made on May 12th at Berlin’s Humboldt University by the German foreign minister Joschka Fischer, and the one given by French president Jacques Chirac before the German parliament on June 27th, the key problems of the process of European unification have been brought to the attention of public opinion. Awareness is dawning of the fact that, without a radical transformation of its institutions, the European Union will be unable to withstand the impact of its own enlargement and will run the risk of disintegration, with consequences that would be catastrophic for peace, democracy and wellbeing in Europe. The final destination of the process and the time frame within which this might be reached are issues that are now widely discussed, and terms like “federalism” and “constitution” have now become acceptable. However, the debate is still contaminated by the presence of ambiguities and contradictions. Federalists must therefore endeavour to contribute to efforts to clarify the terms of the problems on the table in order to streamline, as far as possible, the decision-making process. These problems can be grouped under three headings: I) the nature and destination of the constituent process, II) the general principles of the European constitution, and III) the institutions and the division of powers.
I) The Nature and Destination of the Constituent Process.
The Intergovernmental Method.
Both Europe’s impotence, and the estrangement of its institutions
from the citizens, are rooted in the very essence of the intergovernmental method, in other words, in the fact that the decisions taken in Brussels do not represent the culmination of a democratic debate at European level, but are instead difficult compromises reached between governments of sovereign states, each of which is anxious to pursue (albeit within the framework of a minimum of European cooperation) its own national interests. This is particularly evident each time the question of reforming the Union’s institutions is raised, a problem which the national governments always broach by seeking to adapt the forms of intergovernmental collaboration to the evolving circumstances, careful not to undermine the principle of national sovereignty. This refusal to erode national sovereignty is a flaw that is present even in proposals advanced by some of the most forward-thinking of pro-European politicians, and which currently emerges particularly frequently in the fixed belief that the radical reform so urgently needed by the European Union can be effected merely by improving the mechanism of enhanced cooperation. In truth, the problem that really needs to be solved if the Union is to emerge from this impasse — a grave situation that enlargement can only exacerbate — is that of the overcoming of the method of intergovernmental cooperation per se (enhanced or otherwise) and its replacement with the democratic formation of political will, in other words, the creation of a power which, in the areas for which it has responsibility, is controlled by the citizens and which, with the screen constituted by the member states lifted, acts directly at their level.
from the citizens, are rooted in the very essence of the intergovernmental method, in other words, in the fact that the decisions taken in Brussels do not represent the culmination of a democratic debate at European level, but are instead difficult compromises reached between governments of sovereign states, each of which is anxious to pursue (albeit within the framework of a minimum of European cooperation) its own national interests. This is particularly evident each time the question of reforming the Union’s institutions is raised, a problem which the national governments always broach by seeking to adapt the forms of intergovernmental collaboration to the evolving circumstances, careful not to undermine the principle of national sovereignty. This refusal to erode national sovereignty is a flaw that is present even in proposals advanced by some of the most forward-thinking of pro-European politicians, and which currently emerges particularly frequently in the fixed belief that the radical reform so urgently needed by the European Union can be effected merely by improving the mechanism of enhanced cooperation. In truth, the problem that really needs to be solved if the Union is to emerge from this impasse — a grave situation that enlargement can only exacerbate — is that of the overcoming of the method of intergovernmental cooperation per se (enhanced or otherwise) and its replacement with the democratic formation of political will, in other words, the creation of a power which, in the areas for which it has responsibility, is controlled by the citizens and which, with the screen constituted by the member states lifted, acts directly at their level.
Sovereignty.
A reasoned opinion on what the outcome of the process of European unification could and should be can only be based on the extent to which the idea of sovereignty is still considered relevant. It is, in this regard, necessary to recall that if sovereignty is taken to mean the power to decide in the last instance — if, therefore, sovereignty is the basis of law, and as such the condition rendering civil cohabitation possible — then its absence implies a situation of anarchy, like the one generated in the course of the Middle Ages when the struggle for supremacy between many powers prevented the formation of the political conditions needed to guarantee the rule of law and social peace. And yet, there are many today who believe that the idea of sovereignty has already been superseded. Those who hold this view believe that we are on the brink of an era in which civil cohabitation will be regulated more by contractual relations than by laws issued by an irresistible power existing above the level of individuals; an era in which, in any case, different legal orders — broader or narrower than the State order — will intersect with one another. In the absence of any established hierarchy, there will be no subordination of some orders to others and a situation will be produced in which every organisation, and even every individual, will have to provide for his or her own security. In such a scenario, humanity would be moving into a new, technological Middle Ages in which the rule of law, citizenship and solidarity are destined to fade and disappear, to be replaced by decidedly uncertain social relations, mid-way between peace and war, and founded on self-defence and on the abuse of the weak by the strong.
Federation and Confederation.
In this framework, there are many who maintain, on the basis of a view widely held in certain of Europe’s academic circles, that the objective of European federation has already been superseded as a result of the very evolution of events, since globalisation has already rendered the State, seen as the basis and guarantee of civil cohabitation, obsolete. This is the argument that underlies the mounting refusal to accept the pertinence of the opposition between federation and confederation — in which the distinguishing criterion is, precisely, the seat of sovereignty — and its relevance to the process of European unification. It is maintained that the European Union constitutes a unique form of political aggregation which can no longer be interpreted according to the traditional canons of political and constitutional thought. It is certainly true that the European Union, when compared with any other union of states model that has emerged in history, embodies novel elements, and that it presents both confederal and federal characteristics. The crucial problem, however, is to understand whether the European Union in its present form constitutes a stable form of political aggregation, or whether it is not, rather, the precarious institutional expression of a stage of transition.
The European Federal State.
If, instead, one maintains that the idea of sovereignty, and with it those of the rule of law, of citizenship and of solidarity, have not been superseded, and if, at the same time, one is unwilling to bury one’s head in the sand when faced with the progressive increase in the interdependence of human relations, then the solution to this problem seems clear. The current institutional order of the European Union is a fragile and temporary one, destined either to lead to the creation of a European federal state, which as such will be endowed with the attribute of sovereignty, or alternatively to disintegrate, plunging Europe into the chaos generated by contrasting forces of nationalism. The creation of a European federal state is the only way forward that will allow the primacy of politics and its values to be reaffirmed and control of the process of globalisation to be regained; it is the path that must be followed if we are to be able to envisage the institutions that are needed in order to manage civil cohabitation in vaster spaces and the extension of democracy and democratic institutions at international level, and to generate the motivation without which the federal project could not be pursued. It is important to emphasise strongly that in federal states sovereignty is not the prerogative of the central tier of government, but of the federation viewed as the aggregate of all of its territorial parts, and is thus compatible with the greatest level of decentralisation and the strictest application of the principle of subsidiarity.
The European People.
Many Eurosceptics maintain that no European federation can come into being because there is no European people. Others maintain, on the contrary, that a European people can only be born of the political contest that would be conducted within the framework of the institutions of a European federation. But in truth, people and state are born simultaneously, on those exceptional historical occasions when civil society shakes off its passivity, acquires a new physiognomy, sets aside the selfish interests and contrasts which characterise its normal life, and imposes, through an inexorable demonstration of its own will, a new institutional order and a new idea of the general good. What is needed in Europe, therefore, is for many national public opinions to be transformed into a single European people which, by the very act of its birth, will transfer the sovereignty of the nation-states to a European federal state. It is worth underlining that the European people, if its birth is to come about, needs not only favourable circumstances, but also a guide, a role that can be fulfilled by a few leaders occupying positions of the highest political standing in the countries most deeply involved in the process who are perceptive enough to understand the gravity of the historical moment, and who have the capacity to rally support.
The Two-Stage Constituent Process.
From this perspective, the question arises of how the adoption and proclamation of a European constitution can be achieved. Taking for granted the fact that the exceptional historical moment in which the constituent phase will begin can neither be predicted, nor planned, there remains the need to try and identify the possible procedures through which, once the conditions have emerged that will render it possible, the constituent process might be carried through. These procedures can be split into two stages: the first will be the decision, by some governments, to found a European federation, and the second the drawing up, by a body whose legitimacy will be based on its election by the people, of a constitutional document.
The Federal Core.
The transfer of sovereignty will depend, first of all, on a decision reached by the governments. However, the need to relinquish sovereignty will not be perceived with the same degree of urgency by all the governments of the European Union, to say nothing of an enlarged Union, and it is this which will constitute the main problem destined to arise in this phase. On the other hand, putting the decision on hold indefinitely, until the necessary awareness should develop in all the states of the Union, is no answer to the problem because the process of European unification is already at the crossroads, and the choice is between federation and disintegration. The only way to get over this impasse is to form, within the Union, a federal core that is made up of the countries that have advanced furthest along the road towards integration and towards the maturation of a European outlook among their politicians and citizens — a core destined progressively to enlarge until, eventually, it includes all the Union’s member countries. The formation of a federal core would allow the countries joining it to opt for relinquishment of their sovereignty without being impeded in this course by the veto of countries that will not wish, or will not be able, to be included in it. The core could be born of negotiations culminating in an agreement between the Union’s member states on how the new institutions of the federal core could be made to coexist with the old Union institutions, or alternatively it could be born of a break-away action carried out outside the framework of the Treaties by the countries that wish to form it. It can also be hypothesised, in abstract terms at least, that the mere threat of a split would allow unanimous support for a federal design to be generated among all the states of the Union. In any case, an in-depth analysis of the measures through which the structure of the federal core might be rendered compatible with that of the Union would become a vital negotiating tool in this decisive stage of the process. These measures should allow the federal core to remain part of the Union (constituting one of its member states) and they should allow countries which wish to join the core, and which accept its constitution unreservedly, to do so. Furthermore, provision should be made for countries not wanting to join the federal core from the outset to preserve, should they wish to do so, the acquis communautaire.
The Constituent Assembly.
As far as the drawing up of the constitution is concerned, the main problem concerns the nature of the assembly that will be entrusted with the task. The alternatives that can, at the present time, be contemplated are: the European Parliament, an assembly comprising the European Parliament and representatives of the national parliaments, or a constituent assembly, specially elected for the purpose. This latter option appears to be the most realistic, bearing in mind both that the issue will probably be raised within a narrower framework than that of the current Union and that the European Parliament, being an institution of the Union, could not legitimately draw up a constitutional document relating to a different group of states; it must also be recalled that the European Parliament, in spite of the exception constituted by the Draft Treaty drawn up upon the instigation of Spinelli at the start of the 1980s, is still only a legislative body, and as such does not have a constituent role to fulfil. This does not exclude, however, the possibility that the assignment of the constituent mandate could be restricted to MEPs elected in the countries making up the federal core, on their own or together with members of the national parliaments.
II) The General Principles of the European Constitution.
The European Constitution.
The fact remains that the procedure, whatever it is, must culminate in the drawing up of a constitutional document by an assembly that represents the European people democratically. It is therefore necessary to examine the most important problems relating to its content and to issue a series of proposals. Some of these, being conditions necessary for an effective transfer of sovereignty, will have to be considered mandatory, while others will serve to highlight problems and to prepare a platform for debate. Some concern the general principles that must underlie the constitution, some the institutions of the federation and their relative powers.
The Preamble.
The preamble to the constitutional document should make reference to the course of history within whose context the foundation of the European federation can be viewed, in other words, the progressive overcoming of the barriers between peoples in pursuit of peace. To this end, it should include an explicit declaration that the European federation is ready to work for the transformation, in a democratic and supranational sense, of the United Nations and, on an equal footing with the other member states, to transfer powers to it.
Rights and Duties.
A topic normally dealt with in the introduction to, and in first articles of, the modern constitutions is that of the citizens’ rights (and duties). This is an issue that cannot be divorced from the question of the institutions and their powers. Any declaration of rights that is separated from the constitutional document in which the structure of a state is defined is nothing other than a rhetorical artifice that serves only to skirt around the decisive issue of sovereignty. Moreover, the reason why a list of rights must be incorporated into the constitution is not so much the existence of a serious human rights problem within the Union’s present member states, as the fact that openness towards the outside is destined to be one of the distinctive features of the European federation, both because the Union is bound to expand through the addition of new states, and because it will continue to be an area that attracts immigrants. The federation’s power of irradiation, like its capacity to spread the values of federalism throughout the world, will depend on its openness. But it must be an openness that is regulated by strict conditions. Some of these must, realistically, be economic, while the nature of others will be political. And these will regard, essentially, respect for the rules of democracy and acknowledgement, both in the legal systems of the states wishing to join the federation, and in the daily reality of cohabitation with immigrant communities, of the fundamental rights (and of the relative duties) that have gradually taken shape in the course of the evolution of law in Europe. The anchoring in the constitution of certain fundamental principles — such as the equality of the sexes and the dignity of women — would clarify beyond doubt what the standards of behaviour demanded of any state or individual wishing to become member or citizen of the European federation would be. Respect for religious pluralism and the secular character of the state need not, in fact, signify neutrality of the same towards basic values of civil cohabitation which, in fact, represent the very condition of its survival.
Citizenship.
One issue closely bound up with the question of rights and duties is that of citizenship. There must only be one citizenship for the whole of the federation, in other words, European citizenship must not be, like the form sanctioned by the Maastricht Treaty, a mere adjunct to national citizenship. What this principle will mean is that the rules to which the citizens of Europe shall be subject, as regards the matters falling within the jurisdiction of the national (as well as regional and local) legal systems, will depend exclusively on their place of residence which, in turn, they will be free to choose.
Community Service.
The constitution should make provision for the introduction of compulsory community service, whose purpose would be, essentially, to contribute to the fulfilment of tasks linked to the protection of the environment and of European cultural heritage, to the provision of social services, and to collaboration with less developed countries. Community service would play an important part in legitimising the new federal political community, allowing young people to become deeply acquainted with the social reality of regions of the federation other than those of their birth, and to represent the federation beyond its own confines. In this way, loyalty to the European federation would be founded, in the minds and spirits of the young, more on social solidarity and on a readiness to embrace the outside world than on the duty, prevalent in the nation-state, to defend one’s country in arms.
The Right of Secession.
A final problem that falls within the sphere of the fundamental principles is that of the right of secession. The right of secession is one of the elements that allows a distinction to be drawn between the federation and the confederation. Only an entity that has retained its own sovereignty (and that is thus founded on a distinct people) preserves the right to withdraw from an agreement entered into with other sovereign states. The member states of a federation, on the other hand, renounce their sovereignty definitively, and the new entity that is born of their agreement to unite is no longer founded on distinct peoples, but on a single people. The member states thus lose, definitively, their right to withdraw from the federation. In Europe’s case, secession would be a negation of the very identity of the European people, in other words, of the very foundation of the validity of the federation’s constitutional order. Thus, such an event would, clearly and intrinsically, go against the constitution.
III) The Institutions and the Division of Powers.
The Form of Government.
A brief analysis of the problem of the institutions must start with the observation that the transfer of sovereignty from the nations to Europe hinges on one essential point: the need to make Europe the fundamental framework within which the political contest is conducted and political will formed, rather than merely a sphere in which positions already developed at national political level clash. To this end, the main problem to be solved is that of creating the institutional conditions that will allow a European executive to rest upon the democratic consensus of the citizens. This aim could be achieved in different ways — through the institution of an American-style presidential government, the institution of a parliamentary government, or of an executive committee appointed for the whole period of the legislature according to the Swiss model. The latter formula — which betokens a body of a substantially technical nature — would not appear to be applicable to a state of continental dimensions, which will shoulder considerable responsibility internationally, and in which strong internal tensions cannot fail to surface. The choice is thus between the presidential formula and the parliamentary one. It is a choice that must be made bearing in mind the fact that the European federation will constitute a new political community which will bring together, in a single, pluralistic people, national peoples who have different languages, cultures and traditions, and whose loyalty to the federal constitution will, in an initial phase, be weak. The federation’s institutions will therefore be faced with the task of attenuating, not accentuating, opposing positions, while at the same time attracting the greatest possible consensus. And these are objectives that would appear to be easier to achieve by means of the parliamentary rather than the presidential formula. The latter, in fact, would set individuals of different nationalities — candidates for the presidency of the federation — against one another, thus encouraging dangerous nationalistic clashes. The opposite effect would, on the contrary, be produced by enhancing the standing of the parliament, and this could be achieved by entrusting it with the power to express confidence in the executive or to withdraw the same (a power that, to ensure its responsible use, would have to be carefully regulated), because in the parliamentary setting, national differences would be tempered by the collective nature of the institution and by the affinities, in terms of political orientation, that would unite the major political families of Europe represented in it. Furthermore, it must not be forgotten that a parliamentary system, since it is already prefigured by the present institutional structure of the Union, would more readily be accepted.
Legislative Power and Executive Power.
Having made this choice, clearer indications could be given as to the form that the legislative power and the executive power must assume within the federal union. In short, the Council of Ministers would need to be relieved of the concentration of legislative and executive powers that it currently holds (and that have come to symbolise the Union’s authoritarian character) and the body transformed into a High Chamber of the Union; full legislative powers would need to be transferred to the European Parliament, to be exercised on an equal footing with the High Chamber of the Union; the present Commission would have to become the government of the Union, answerable to the Lower Chamber, and attributed with full executive powers. Decisions reached by the two chambers would have to be simple majority decisions on all matters except that of constitutional reform, where a qualified majority would be needed as well as some form of participation in the process on the part of the legislative bodies of the lower levels of government, or the direct intervention of the electorate through recourse to the referendum mechanism. The High Chamber of the Union should be elected by the parliaments of the member states (in order to avoid transforming the High Chamber of the Union into a duplicate of the Parliament and, at the same time, to make it possible for each member state to be represented not only by its governing parties, but also by its opposition forces, this method would be preferable both to election by universal suffrage and to direct representation of the governments of the member states). Representation of the member states in the High Chamber should make provision for an increased weighting of the votes of the smaller states in relation to the larger ones, without however, in order to avoid over-penalising the larger states, going so far as the equal representation that is in force in the United States. In this framework, the present European Council would assume the role of collective Head of State of the Union, with the power to elect the head of government and to dissolve the Lower Chamber. The institutions of the federation would have to be invested — possibly after a transitory period, whose duration would nevertheless have to be predetermined — with responsibility for foreign policy and security.
The Multiplicity of Tiers of Government.
The question of the organisation of the Federation into several tiers of government deserves a particular mention. This multiplicity of tiers, albeit limited to those of its member states which already have a federal, or quasi-federal, structure, such as Germany, Belgium, Austria, Spain and, later on, Italy and Great Britain, would already be realised upon the birth of the federation. On the contrary, it is certainly impossible to imagine states like France being ready immediately to adapt their internal institutions to this model. The constitution must, however, contain a preparatory provision that outlines a subdivision of the entire federal territory into a number of spheres of varying dimensions on whose basis the functions of government would be divided. This subdivision should not end at regional level, as regional centralisation is more dangerous and more suffocating than national centralisation; instead, it should extend to local level, the level at which there can be said to be a true participatory democracy. It must be underlined that it is only in the ambit of an out-and-out federal state, organised into a number of tiers of government, that any significance can be attributed to the so-called principle of subsidiarity, according to which all decisions must always be taken at the lowest level compatible with effective action: nowadays, this principle is used, surreptitiously, as a pretext for the nation-states’ refusal to found a federal state. In this same context, it is important to stress how totally unfounded the claim is that local and regional governments can be represented at European level (the present Committee of Regions is an attempt to do just this). Regional and local bodies need to be given, by the constitution, a broad sphere of responsibilities, whose exercise must be guaranteed not only by the Court of Justice, but also by the presence of these bodies in the higher chambers of the tiers of government immediately superior to them. In fact, the representation of local and regional governments at continental level would (were it anything more than purely symbolic, and thus useless) produce only a shifting towards greater centralisation of decisions of regional and local import, creating confusion over the division of powers and causing the decision-making process to seize up.
The Judicature and the Supremacy of the Constitution.
The judicature should be headed by the Court of Justice as the tribunal of last resort. Furthermore, in view of how difficult it is to distinguish clearly between the task of interpreting laws and that of determining their constitutionality, the latter should fulfil the dual role of Constitutional Court and Supreme Court of Appeal. There should be a single judicature (rather than two, as in the United States) which would apply federal, state, regional and local laws. This would serve to prevent conflicts of jurisdiction and to avoid creating a cumbersome and costly judicial machine. It is also important to note that the judicature would not belong to any specific tier of government, but would, instead, be entirely independent of the territorial organisation of legislative and executive powers, precisely because its function would be, applying the rules of the constitution, to settle constitutional disputes arising between the different tiers. There is no reason why the European judicature should not be born of the fusion and adaptation of the national judicatures currently in place, providing all referred in the last instance to the Court of Justice and providing the circulation of judges (possessing the necessary language skills) between states were guaranteed. From a disciplinary and career standpoint, the European judicature would have to be subordinate to a Council, elected by the judges themselves. The remuneration of judges would have to be guaranteed, on a proportional basis, by all the tiers of government, and decided by a body in which all the tiers of government would, on an equal footing, be represented. It must be noted that within this framework there would be absolutely no justification for the so-called supremacy of Community law over national law. The rules of the constitution would be the only ones that would prevail over all other laws. The federal, state, regional or local laws would, in each particular case, prevail over all the others, according to the criteria established by the constitution and on the basis of the interpretation of the same by the courts. This would thus eliminate a flaw in the Community’s present legal system that is a direct consequence of the lack of a federal constitution.
The Division of Powers.
This still leaves open all the questions linked to the division of powers between the various tiers of government and that of the instruments for the exercising of the same. In the present context, only a few brief indications can be given. The close interdependence between all aspects of political, social and economic life that has been produced by the rapid rate of technological progress, throws into question the very criterion according to which powers are shared among different levels of government. The division of powers according to policy areas no longer seems adequate in view of what is required of a modern federal state — in fact, there is no area of civil cohabitation left that can be regulated at a single territorial level. This criterion for the division of powers must thus be replaced by a division by territory, on the basis of which all the tiers of government look after all the aspects of economic, social and cultural life, and are restricted only by the geographical confines of their jurisdiction. This implies the need for close interaction between the different tiers of government, and thus a co-operative interpretation of federalism; it also renders more difficult and more delicate the role of the courts which, among other things, is to settle disputes over powers.
The Federal Budget and the Apportionment of Taxes.
The overall amount of the income and expenses of the different tiers of government should thus be determined by a financial instrument that forms part of a multy-year programme (modifiable annually) approved by the two federal chambers in a joint session with representatives of lower tiers of government; it should take into account the programmes of the state, regional and local governments. Taxes should not be freely imposed by the different tiers of government and the latter should not compete with one another in their imposition, since this would, depending on the circumstances, lead to over-taxation of the citizens or to forms of fiscal dumping. Instead, the revenue from taxes should be shared among the different tiers of government, and this should be done by their mutual consent, and in any event in accordance with the minimum quotas to which each tier of government would be entitled. This financial decision-making structure would be complemented by the presence of a single fiscal administration, controlled by an independent authority that should be elected, and revoked, by a body in which all the tiers of government would be represented. The remuneration of its officials should be regulated by the same criterion proposed for judges.
Publius
* This is the text of the European Letter No. 18, published in English, French, German and Italian by the Luciano Bolis Foundation in support of the “Campaign for European Constitution”, run by the Union of European Federalist and the Young European Federalists.
