European Union and Federalism

Résumé du document

In 1948, federalists formulated a project of United States of Europe at a Congress in La Haye. But they were defeated by unionists who wanted mere intergovernmental cooperation between European states. Nowadays, this continues to be a recurrent debate: is the European Union (EU) a federal state?
Concerning the definition of a federal state, the only point on which authors agree is that there is not just a single definition . But it can help to try and define this concept by opposition to the one of intergovernmental cooperation, where a group of sovereign states assemble to deal with common problems on the basis of a treaty. Decisions are taken unanimously and only create rights and obligations for the member states. Conflicts between them are settled by a political organ .
A federal state is also a group of states, but the states composing it have surrendered a part of their sovereignty in favor of an entity having its own legal system and competences, such as foreign affairs and monetary policy. The repartition of powers is made according to a constitution, which is, at least formally, a unilateral act of the people . Federal authorities are able to create executive law with direct effect on the citizens of each state. Federal institutions are independent from the member states even if the latter may be represented in them. If a member state infringes on federal law, it can be sued by its citizen before the courts. Besides, a federal state has symbols like a national day, a currency, etc and its citizens are united by a national feeling.

Extraits

[...] Others go ahead, thanks to the provisions on closer cooperation[21]. This differentiation would not be possible in a federal state. Furthermore, the existence of an EU constitution is still in discussion. Admittedly the Court of Justice refers to the Treaties as basic constitutional charter” of the Community[22], because of their primacy over the acts adopted by institutions. The treaties, like a constitution, set the institutional framework. They cannot be reviewed by the Court[23]. Damage caused by their application cannot render the Community liable[24]. [...]

[...] Another example is the new role given to national Parliaments. Between other attributions, they will be able to refer to the Court of Justice any draft act that they consider infringes on the principle of subsidiarity[40]. Furthermore, the LRT brings the EU no closer to a constitution. It is true that the treaty will give the EU a legally binding declaration of rights[41]. However, it will not be a declaration of rights as it exists in a federal constitution: it will only apply within the scope of EU law, with no effect on the law of member states[42]. [...]

[...] The EU is then closer to a federal state and has the means to get closer still. However, the new version of the treaties will still contain many of those conservatory elements described by Dashwood. One of the most symbolic safeguard may be the provision acknowledging essential state functions of member states, mainly defence and law and order[37]. Yet, in a federal state, theses competences are normally the ones of federal authorities. There are also more technical safeguards. Within the foreign and security policy area, even if the structure in pillars has disappeared, the unanimous voting rule still applies[38]. [...]

[...] In particular, national security remains the sole responsibility of each Member State. Faihurst p New article 83 of the Treaty on the Functioning of the EU: Where a member of the Council considers that a draft directive as [concerning approximation of criminal laws] would affect fundamental aspects of its criminal justice system, it may request that the draft directive be referred to the European Council. In that case, the ordinary legislative procedure shall be suspended. After discussion, and in case of a consensus, the European Council shall, within four months of this suspension, refer the draft back to the Council, which shall terminate the suspension of the ordinary legislative procedure. [...]

[...] Besides, a federal state has symbols like a national day, a currency, etc and its citizens are united by a national feeling. According to these definitions, the EU is more than an organization of intergovernmental cooperation. Indeed, acts are in principle adopted by a majority of the Council's members[4]. This means that states have surrendered their veto right, thus that transfers of sovereignty have been made to the Union. The Court of Justice acknowledged it and deduced from it the primacy[5] and direct effect[6] of community law. Besides, some EU institutions are independent from the states. [...]