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As stated, I have made two points in order to defend Fischer's vision. First, that any fruitful analysis of the democratic deficit should start by analysing the concept of democracy itself. By doing so, we realise that European integration helps to increase the legitimacy of the scope dimension of democracy. This does not hide the fact that there are other dimensions of democracy in which much needs to be done. The Union as a polity still needs to find better ways of increasing political participation; it has an insufficient commitment towards certain substantive values and it provides individuals with insufficient access to judicial protection. But this cannot be solved by a move towards a non-Europe or a conception of the Union as a free trade area. Second, that a careful analysis of the process (or lack of) of tax harmonisation confirms the previous analysis. The mixed record of tax harmonisation shows that the lack of a supranational framework for personal taxes has led to a considerable narrowing of the tax policy options open to national political processes. The only way of rescuing national sovereignty is by means of increasing supranational arrangements.
It seems to me that this provides a bit more solid ground for the general insight of Fischer. In such a light, one should construct him as making a modest plea for constitution-making.
After all, he is openly arguing for a federal Europe. The problem with federalism is that it means very different things to different people, and it is not always the case that everybody is eager to learn what others mean by it. According to classical constitutional thinking, what is at stake here is where sovereignty rests, or-amounting to the same thing-who has the last word, the power of last resort (in legal jargon, the competence-competence). States can establish different frameworks of co-operation. In a confederation, states retain their original sovereignty, while delegating a limited number of powers to the new central power, which is a mere creature of the states. In a federation, sovereignty moves to the centre, and states have their powers enshrined and limited in the federal constitution. Eurosceptics very much share this view; consequently, they see Fischer's plea for a federation of states as a recipe for depriving member states of sovereignty. However, one could doubt whether this mode of conceptualising sovereignty makes sense any longer. For one, Neil MacCormick has shown how the present structure of European law cannot be explained with such conceptual tools. The Union makes it clear that we have go beyond sovereignty. The relationship between European and national law cannot be said to be one based on the unconditional supremacy of any of the systems over the other. We have a plurality of overlapping legal systems, and a pluralistic relationship between them.32 The last word does not belong to the European or the national legal system, but to the dialogue that exists between the two. Under such an understanding, federalism is not a formula to determine where the power of last resort rests, but to describe the foundations of the Union. Structures of international law are exclusively based on the commonality of interests and the functional need of finding common action norms. They resemble a modus vivendi, in which parties tolerate each other. A Federal Europe is based on something else. Common action norms deal with areas in which we need to solve conflicts and achieve co-operation, but they are also inspired by common values. The right model is that of the overlapping consensus, of a normative consensus on which the whole integration process seems to be founded.33
Such a conception of federalism makes it clear why Fischer has felt in need of reopening the debate on the finalité of the Union. We could interpret him as saying that citizens should realise that the Union is already based in an overlapping consensus that transcends a mere modus vivendi. In this sense, and to use Ackerman's terminology once again, Europe is not facing a radical new constitutional beginning in which it has to redefine its identity. It is just entering a constitutional moment, in which important reforms will be adopted.
This implies, among other things, reconsidering the division of competences between the Union and member states, but this is not necessarily a recipe for a super-state (actually, it could be just the opposite). However, it seems to me that Fischer might be too optimistic. It is not realistic to expect that we could make a one-page list to sort all things out. Anybody familiar with policy processes at the European and at the national level within federations knows that things are far more complex. As regards tax matters, the efforts to establish an Anti-Fraud office (surprisingly baptised as OLAF in the Euro-jargon) show that different schemes of cooperation are needed, no matter who is mainly responsible for doing what.34 But nothing prevents making things as clear as possible, even if complexity is to be accepted as the price for sophisticated governance.
32 See, Neil D. MacCormick (1999).
33 See, Massimo La Torre (1999:188).
34 See, the First report on the operational activities of OLAF, Brussels, 23 May 2000. Available at http://europa.eu.int/comm/anti_fraud/documents/rapport_en.pdf.