Jean Monnet Center at NYU School of Law


I. Introduction: Europe's Fateful Choice

In the vision of the great thinker and teacher of federalism, the late Dan Elazar, Europe is already a federalism. The federal principle, he rightly explained, should not be confused with its specific manifestation in the federal state.1 Echoing the same thought, Pescatore, the Marshall of European Law, observes

[T]he methods of federalism are not only a means of organising states. [F]ederalism is a political and legal philosophy which adapts itself to all political contexts on both the municipal and the international level, wherever and whenever two basic prerequisites are fulfilled: the search for unity, combined with genuine respect for the autonomy and the legitimate interests of the participant entities.2

It is, thus, not surprising that comparisons between the distinct federalisms in North America and Europe have constituted a staple feature in the ongoing discussion concerning European integration.3 Institutional arrangements have attracted a great deal of attention because of the apparent divergence of the European experience from the typical federation. In contrast with the classical model of the federal state, and despite considerable refinements, Europe's institutional structure still adheres to the original supranational design of Commission-Council-Parliament and continues to guarantee a decisive voice in European governance to the governments of the Member States. The formal empowerment of, say, the European Parliament over the years has been counterbalanced by informal empowerment of the Medusa-like Council. For its part, the Commission has had to struggle to preserve its own weight in the decisional process. Though superficially-and to some, optimistically-one could compare the Commission to a federal Executive Branch, the Council to a Senate-type State chamber and the Parliament to a popular chamber, the realities of an intergovernmental Europe are still forcefully in place. To use somewhat archaic language of statecraft, institutionally Europe is closer to the confederal than it is to the federal.

Constitutional arrangements, by contrast, have attracted considerable comparative attention because of their apparent convergence with the experience of the federal state. Typically federations allocate certain powers to federal institutions, and typically policies and laws emanating from the exercise of such power are the supreme law of the land, meaning they are the law of the land in the sense of operating without the intermediary of local government and in case of conflict they trump conflicting norms. Federal state constitutions create, always, a vertical hierarchy of a triple nature: a hierarchy of norms which, in turn, is rooted in a vertical hierarchy of normative authority which, in turn, is situated in a hierarchy of real power. Despite many original intentions, federations end up with a concentration of both constitutional and institutional power at the federal level.

As a result of a combination of express Treaty provisions-such as those stipulating that certain types of Community legislation would be directly applicable4-of foundational principles of international law-such as the general principle of supremacy of treaties over conflicting domestic law, even domestic constitutional law5-and of the interpretations of the European Court of Justice,6 a set of constitutional norms regulating the relationship between the Union and its Member States, or the Member States and their Union, has emerged which is very much like similar sets of norms in most federal states. There is an allocation of powers, which as has been the experience in most federal states has often not been respected; there is the principle of the law of the land, in the EU called Direct Effect; and there is the grand principle of supremacy every bit as egregious as that which is found in the American federal constitution itself.

Put differently, the constitutional discipline which Europe demands of its constitutional actors-the Union itself, the Member States and State organs, European citizens, and others-is in most respects indistinguishable from that which you would find in advanced federal states.

But there remains one huge difference: Europe's constitutional principles, even if materially similar, are rooted in a framework which is altogether different. In federations, whether American or Australian, German or Canadian, the institutions of a federal state are situated in a constitutional framework which presupposes the existence of a `constitutional demos', a single pouvoir constituant made of the citizens of the federation in whose sovereignty, as a constituent power, and by whose supreme authority the specific constitutional arrangement is rooted. Thus, although the federal constitution seeks to guarantee State rights and although both constitutional doctrine and historical reality will instruct us that the federation may have been a creature of the constituent units and their respective peoples, the formal sovereignty and authority of the people coming together as a constituent power is greater than any other expression of sovereignty within the polity and hence the supreme authority of the Constitution-including its federal principles.

Of course, one of the great fallacies in the art of `federation building', as in nation building, is to confuse the juridical presupposition of a constitutional demos with political and social reality. In many instances, constitutional doctrine presupposes the existence of that which it creates: the demos which is called upon to accept the constitution is constituted, legally, by that very constitution, and often that act of acceptance is among the first steps towards a thicker social and political notion of constitutional demos. Thus, the empirical legitimacy of the constitution may lag behind its formal authority-and it may take generations and civil wars to be fully internalized-as the history of the US testifies. Likewise, the juridical presupposition of one demos may be contradicted by a persistent social reality of multiple ethnoi or demoi who do not share, or grow to share, the sense of mutual belongingness transcending political differences and factions and constituting a political community essential to a constitutional compact of the classical mould. The result will be an unstable compact, as the history of Canada and modern Spain will testify. But, as a matter of empirical observation, I am unaware of any federal state, old or new, which does not presuppose the supreme authority and sovereignty of its federal demos.

In Europe, that presupposition does not exist. Simply put, Europe's constitutional architecture has never been validated by a process of constitutional adoption by a European constitutional demos and, hence, as a matter of both normative political principles and empirical social observation the European constitutional discipline does not enjoy the same kind of authority as may be found in federal states where their federalism is rooted in a classic constitutional order. It is a constitution without some of the classic conditions of constitutionalism. There is a hierarchy of norms: Community norms trump conflicting Member State norms. But this hierarchy is not rooted in a hierarchy of normative authority or in a hierarchy of real power. Indeed, European federalism is constructed with a top-to-bottom hierarchy of norms, but with a bottom-to-top hierarchy of authority and real power.

You would think that this would result in perennial instability. As we shall see, one of the virtues of the European construct is that it produces not only a surprisingly salutary normative effect but also a surprisingly stable political polity. Member States of the European Union accept their constitutional discipline with far more equanimity than, say, Quebec. There are, surely, many reasons for this, but one of them is the peculiar constitutional arrangement of Europe.

This distinct constitutional arrangement is not accidental. Originally, in a fateful and altogether welcome decision, Europe rejected the federal State model. In the most fundamental statement of its political aspiration, indeed of its very telos, articulated in the first line of the Preamble of the Treaty of Rome, the gathering nations of Europe `Determined to the lay the foundations for an ever closer Union of the peoples of Europe'. Thus, even in the eventual promised land of European integration, the distinct peoplehood of its components was to remain intact-in contrast with the theory of most, and the praxis of all, federal states which predicate the existence of one people. Likewise, with all the vicissitudes from Rome to Amsterdam, the Treaties have not departed from their original blueprint as found, for example, in Article 2 EC of the Treaty in force, of aspiring to achieve ` . . . economic and social cohesion and solidarity among Member States' (emphasis added). Not one people, then, nor one State, federal or otherwise.

Europe was re-launched twice in recent times. In the mid-1980s the Single European Act introduced, almost by stealth, the most dramatic development in the institutional evolution of the Community achieved by a Treaty amendment: majority voting in most domains of the Single Market. Maastricht, in the 1990s, introduced the most important material development, EMU. Architecturally, the combination of a `confederal' institutional arrangement and a `federal' legal arrangement seemed for a time to mark Europe's Sonderweg - its special way and identity. It appeared to enable Europe to square a particularly vicious circle: achieving a veritably high level of material integration comparable only to that found in fully fledged federations, while maintaining at the same time-and in contrast with the experience of all such federations-powerful, some would argue strengthened,7 Member States.

At the turn of the new century, fuelled, primarily, by the Enlargement project, there is a renewed debate concerning the basic architecture of the Union. Very few dare call the child by its name and only a few stray voices are willing to suggest a fully fledged institutional overhaul and the reconstruction of a federal-type government enjoying direct legitimacy from an all European electorate.8 Instead, and evidently politically more correct, there has been a swell of political and academic voices9 calling for a new constitutional settlement which would root the existing discipline in a `veritable' European constitution to be adopted by a classical constitutional process and resulting in a classical constitutional document. The Charter of Human Rights is considered an important step in that direction. What is special about this discourse is that it is not confined to the federalist fringe of European activists, but has become respectable Euro-speak both in academic and political circles.

Four factors seem to drive the renewed interest in a formal constitution rather than the existing `constitutional arrangement' based on the Treaties. The first factor is political. It is widely assumed, correctly it would seem, that the current institutional arrangements would become dysfunctional in an enlarged Union of, say, 25. A major overhaul seems to be called for. In the same vein, some believe, incorrectly in my view, that the current constitutional arrangements would not work. In particular, the absence of a formal constitution leaves all important constitutional precepts of the Union at the mercy of this or that Member State threatening both the principle of uniformity of, and of equality before, the law as well as an orderly functionality of the polity. One is forever worried: `What will the German/Italian/Spanish, or whatever, constitutional court say about this or that.' A formal constitution enjoying the legitimacy of an all-European pouvoir constituant would, once and for all, settle that issue.

The second factor is `procedural' or `processual'.10 The process of adopting a constitution-the debate it would generate, the alliances it would form, the opposition it would create-would all, it is said, be healthy for the democratic and civic ethos and praxis of the polity.

The third factor is material. In one of its most celebrated cases in the early 1960s, the European Court of Justice described the Community as a `. . . new legal order for the benefit of which the States have limited their sovereign rights, albeit in limited fields'. There is a widespread anxiety that these fields are limited no more. Indeed, not long ago a prominent European scholar and judge wrote that there `. . . simply is no nucleus of sovereignty that the Member States can invoke, as such, against the Community'.11 A constitution is thought an appropriate means to place limits to the growth of Community competences.

Of greatest interest to me is the final normative and conceptual drive behind the discussion. Normatively, the disturbing absence of formal constitutional legitimization for a polity that makes heavy constitutional demands on its constituent Members is, it may be thought, problematic. If, as is the case, current European constitutional discipline demands constitutional obedience by and within all Member States, their organs and their peoples even when these conflict with constitutional norms of the Member State, this, it is argued, should be legitimized by a constitution which has the explicit consent of its subjects instead of the current pastiche which, likeTopsy, just `growed'.

Conceptually, the disquiet with the current European constitutional arrangement must be understood against a European constitutional discourse, which for years has been dominated by a strange combination of Kelsen12 and Schmitt.13 It is Kelsenian in its attempts, under many guises to describe, define and understand the European Grundnorm-the source whence the authority of European constitutional disciplines derives. The search for this Kelsenian holy grail, whether or not acknowledged explicitly, underscores the great bulk of the academic literature theorizing European constitutionalism. And this holy grail is, typically, understood in Schmittian terms: the search is for the ultimate source of authority, the one that counts in the case of extremity, of conflict.14 That is the true criteria of the real Grundnorm.

Early `Europeanists' liked to argue that the Grundnorm, typically expressed in, say, the principle of supremacy of European law over national law in case of conflict, had shifted to the `central' or `general' power: that is, to Europe. That view is less in fashion today and is contested by those who point out that, both in fact and in law, ultimate authority still rests in national constitutional orders which sanction supremacy, define its parameters, and typically place limitations on it.

According to this latter view, the statal Grundnorm would shift. Only if one were to take the existing constitutional precepts and enshrine them in a formal constitution adopted by a European `constitutional demos'-the peoples of Europe acting on that occasion as one people-would constitutional authority in fact and in law shift to Europe. For the most part, both for friends and foes of European constitutionalism the debate is conducted on this Kelseno-Schmittian turf.

I am far from certain whether the constitutional discussion will actually result in the adoption of a formal constitution and I am even more doubtful whether we will see in the near future a European state even of a most limited core. My interest in this debate is, thus, that of neither the international relations expert nor the social scientist trying to explain or predict the course that European integration has taken or will take. I am, instead, mostly interested in the normative values of which the constitutional and political discourse is an expression.

I want to explain why the unique brand of European constitutional federalism-the status quo-represents not only its most original political asset but also its deepest set of values. I also do not think that a formal constitution is a useful response to other concerns such as the issue of competences.

1 D. Elazar, Options, Problems and Possibilities in Light of the Current Situation, in idem (ed.), Self Rule - Shared Rule (1979), 1-13, at 3 and 4. Ramat Gan, Turtledove Publishing.

2 Pierre Pescatore, Preface, Courts and Free Markets, in T. Sandalow & E. Stein, Courts and Free Markets (1982). Oxford, Clarendon Press, Vol.1, at ix-x.

3 See, for example, Robert R. Bowie & Carl J. Friedrich (eds.) Studies in Federalism, (Boston Little Brown & Co. 1954) and Arthur Whittier Macmahon (ed.), Federalism Mature and Emergent, (Columbia University Press, 1955) for early comparative analysis in the formative years. For subsequent analyses of the more mature system see, for example, Terrance Sandalow & Eric Stein (eds.) Courts and Free Markets (Clarendon Press-Oxford, 1982), 2 volumes, Mauro Cappelletti, Monica Seccombe & Joseph H. H. Weiler (eds.) Integration Through Law - Europe and the American Federal Experience (Walter de Gruyter, 1986 Berlin and New York et seq.), Koen Lenaerts (ed.), Two Hundred Years of U.S. Constitution and Thirty Years of EEC Treaty (Brussels, Kluwer, 1988).

4 Originally Article 189 EEC (Treaty of Rome)

5 The general rule of international law does not allow, except in the narrowest of circumstances, for a state to use its own domestic law, including its own domestic constitutional law, as an excuse for non-performance of a treaty. That is part of the a, b, c of international law and is reflected in the same Vienna Convention Article 27. Oppenheim's International Law is clear: "It is firmly established that a state when charged with a breach of its international obligations cannot in international law validly plead as a defense that it was unable to fulfill them because its internal law . . . contained rules in conflict with international law; this applies equally to a state's assertion of its inability to secure the necessary changes in its law by virtue of some legal or constitutional requirement . . . " Oppenheim's International Law, Vol. I: Peace 84-85. Sir Robert Jennings & Sir Arthur Watts eds., 9th ed. (1992 Harlow, Essex).

6 See generally Weiler, The Transformation of Europe in The Constitution of Europe (1999) Cambridge University Press, Cambridge, New York.

7 See three classics: A.S. Milward et al., The European Rescue of the Nation State (Berkeley University of California Press 1992); Stanley Hoffmann, Reflections on the Nation-State in Western Europe Today, in Loukas Tsoukalis, The European Community - Past, Present & Future (Oxford, Basil Blackwell, 1983); A. Moravcsik, The Choice for Europe (Cornell University Press, Ithaca, NY, 1998).

8 See e.g. the IHT Op.Ed by Giscard d'Estaing and Helmut Schmidt, International Herald Tribune, April 11th, 2000. For a more honest discussion, admitting the statal implications of the new construct, see for example G. Federico Mancini, Europe: The Case for Statehood, 4 European Law Journal (1998), 29-42, and Harvard Jean Monnet Working Paper 6/98, and see, of course, Jürgen Habermas's suggestions in The European Nation-State and the Pressures of Globalization, New Left Review no. 235 (May 1999), 46-59, and Die Einbeziehung des Anderen, Chapter III "Hat der Nationalstaat eine Zukunft?", 128-191, Suhrkamp, Frankfurt, 1996. There is an interesting political-legal paradox here. A `flexible' Europe with a `core' at its center will actually enable that core to retain the present governance system dominated by the Council-the executive branch of the Member States-at the expense of national parliamentary democracy. Constitutionally, the statal structure would in fact enhance even further the democracy deficit.

9 In the political sphere see, for example, the over-discussed Berlin speeches of Joschka Fischer and Jacque Chirac. For text and comments on these interventions, see the special symposium on the Harvard Jean Monnet site:

10 I am grateful to Professor Günther Frankenberg, University of Frankfurt, for his idea.

11 Koen Lenaerts, Constitutionalism and the many faces of Federalism 38 A. J.Com. L 205 (1990) at 220. The Court, too, has modified its rhetoric: in its more recent Opinion 1/91 it refers to the Member States as having limited their sovereign rights ` . . . in ever wider fields.' Opinion 1/91, [1991] ECR 6079, Recital 21.

12 Hans Kelsen, On the Pure Theory of Law 1 Israel Law Review 3 (1966).

13 See C. Schmitt, The concept of the Political (The University of Chicago Press, 1996) at, for example, 35, 43 et seq.

14 Whether the Grundnorm is internal to the legal order or outside, it is a contested matter. Insightful in this genre is Pavlos Eleftheriadis, Begging the Constitutional Question, 36 JCMS 255 (1998); Aspects of European Constitutionalism 21 E.L.Rev. 32 (1996).



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