Federalism: the EU's uncommon principle?
by Nikos Skoutaris
The EU is founded on a set of common princples – but also an uncommon one: federalism
During the past few years and especially in the aftermath of the signing of the Lisbon Treaty, a political and academic debate concerning the notions of constitutional identity, constitutional tradition and common constitutional principles has been taking place within the European Union public space.
To that effect, it is important to note that the Treaty on European Union itself, in Article 2, declares that the EU is founded on common values such as "the respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities".
At the same time, Article 4 informs us that the union shall respect the national identities of the member states inherent in their fundamental constitutional structures. So, it comes as no surprise that the debate on those terms has dominated the academic debate and has been in the limelight of the German and Polish constitutional courts in their judgments on Lisbon Treaty.
Despite the declarations concerning the foundation of the union on certain common constitutional principles, the treaty still fails to acknowledge that the EU is also founded on a not so common one: federalism. Federalism, which denotes -as Halberstam has said – any single polity with multiple levels of government each with constitutionally grounded claims to some degree of organisational autonomy, is a principle that characterises a rather limited number of constitutional orders within the EU.
With the exception of member states that are federations – Austria, Belgium, Germany – and arguably the regionalised ones – Italy, Spain, the United Kingdom – the sub-state levels of which enjoy wide-ranging autonomies and legislative powers, the other 21 members are either unitary in the Jacobin sense or decentralised. Still, it could be argued that the EU structure exhibits federal characteristics.
We'll focus on the EU's institutional structure. The EU consists of 27 member states which have either founded it or subsequently acceded to it. The competences that have been transferred to this constitutional order are enumerated in Title I of the Treaty on the Functioning of the EU on Categories and Areas of Union Competence.
Article 4 provides for a residual clause in favour of the member states while the following Article contains the principles of conferral, subsidiarity and proportionality suggesting that the member states possess a marked degree of legislative autonomy within this composite order. The participatory rights of the member states in the EU decision-making processes are guaranteed both directly through the Council and the European Council and indirectly through the European Parliament. Finally the Court of Justice is the arbiter inter alia in cases of competence disputes between the various levels of the EU construction.
In other words, the EU is a polity with multiple levels of government that retain legislative autonomy and jurisdictional authority. In that sense, one could argue that federalism is a union constitutional principle without being a common one. Is that surprising? To the contrary, if one takes into account the fact that the union constitutive fundament remains a series of international treaties under general public international law.
This paradox reminds us, though, that the EU might be founded on certain common values but it still is a functionalist project that strives at accommodating differences.
Nikos Skoutaris is assistant professor in the International and European Law Department of Maastricht University and participates in the European and National Constitutional Law Project
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