JURIST Guest Columnist Sedef Asli Topal of The University of Szeged, Hungary discusses the affairs of the European Union …

The European Union surely cannot be simply identified as an international organization. It holds both particular confederative and federal characteristics within its institutional structure. Generally, it is described as an ‘unprecedented supranational organization’ which is neither a complete federation, nor only a confederative entity; but somewhere between these two. Accordingly, to figure out to what extent the ‘Federation of European States’ is likely to be established in the future; the line between the federation and confederacy on which the EU is currently standing will be discussed in more detail in this article.

Firstly, Europe had made remarkable progress on the road to federation with the application of a joint economic and monetary policy in ten years (1992-2002). The enforcement of four freedoms – free movements of labour, capital, goods and people – via the Single European Act [PDF] (1987) accelerated the process heading the political unity, which created a powerful federating force: the common internal market. The Economic and Monetary Union (EMU) was the first attempt required to turn the ‘negative’ barrier-removing mentality in domestic markets into a ‘positive’ one for the achievement of full integration in Europe (Wincott 1996).

During the Intergovernmental Conference on Economic and Monetary Union in 1988, the European Monetary System (EMS) was revised for the regulation of exchange rate management, stabilization of prices and provisions of Single European Act. Also, the ‘Delors Report‘ [PDF] published by the Delors Committee – which was chaired by Jacques Delors – set three main stages of the EMU: (1) full membership of the participatory states with their loyalty to common goals, (2) common institutions protecting common interests and monitoring common policies, and (3) establishment of a single currency.

The Delors Committee decided to apply working principles of the central banking systems of the US and the Federal Republic of Germany as a model. The European System of Central Banks (ESCB) and European Central Bank were created in 1998 as the Euro was accepted as a common currency in the same year and launched on the 1st of January 2002. In relation, Patrono states (2004, 337) that “briefly, what distinguishes European integration from its counterparts is the fact that the ever greater degree of economic integration, which has now reached a peak that will not easily be equaled, had made use of the combined and contemporaneous action of structures and legal tools already provided for in the founding Treaty.”

The establishment of the European Economic Community (EEC) by the Treaty of Rome (1957) was an exciting improvement for functionalists who thought that integration in particular areas such as economy and finance would bring more integration in different areas (spill over effect). They assumed that the completion of economic integration would result in political integration, and finally EU would turn into a ‘pure’ federation. However, the EU still seems to continue to be far away from representing a political unity rather than a monetary union. It couldn’t go much beyond an economic integration to coordinate a mutually advantageous liberal market policy within the continent. In a federation, the central government follows a common trade and fiscal policy binding all participatory states in respect of their domestic regulations and activities. Although it is restricted by the national constitution to a large extent at the regional level, it is authorized to set common standards and rules – regarding taxation, pensions and social security- all sub-units are bound to. Similarly to the system in federations, the EU has a joint economic and monetary policy at the supranational level, but in contrast to the federation, it is nearly absent in fiscal policies concerning the distribution of social justice.

According to Moravcsik (2001,165), “the union is completely excluded from the major function of developed industrial democracies, namely ‘the provision of social welfare.’ National welfare systems provide direct income support, unemployment insurance, various forms of medical care, retirement and pension benefits, assistance for children hardly any of which is directly regulated by the EU. In the related area of labour regulation, the EU has provided weak labour standards.” This exacerbates the lack of trust between the EU institutions and European people – low turnouts in Parliamentary elections (%43 in 2014) have already revealed this fact – and considerably weaken the union’s legitimacy.

Secondly, EU lacks significant defense, military and police powers and underlying policies as a most fundamental activity of a modern state. “Even if the ambitious plan currently on the table for European defense coordination were realized, North Atlantic Treaty Organization (NATO) would remain the preeminent international institution in European Defense.” (Patrono 2004, 334) Although there is strict coordination between the internal and external national security forces of the member states to prevent cross-border crime such as human trafficking and illegal migration, EU does not have its own armed force and central decision-making body, unlike a federation. When the guideline for CFSP is set by the European Council as the highest political authority of the union; the Council of European Union follows the guideline for implementation of the policy, and the High Representative of The Union for Foreign Affairs and Security Issues – who is appointed by the European Council – advocates the union in the international political arena. It shows that, the weight of national governments in settlement of CFSP is dramatically high. The European Parliament – which is the voice of EU citizens, and the European Commission – which is the only politically disinterested organ and executive branch of the union – have nearly no role in CFSP, which indicates that EU is not fully competent in policy making on external affairs and security issues as a ‘supranational’ political entity with its independent and democratically elected institutions.

In contrast, a federation has its own military forces directly authorized by a central government which is executed by a ‘unique’ authority in the top of hegemonic hierarchy rather than a group of governmental branches which are executed by different presidents, and which are horizontally ordered in terms of political power. This brings us to the third major point: the absence of a central government represented by a ‘single’ person. For this reason, it would not be wrong to claim that in terms of the distribution of powers, the EU is considered to be more similar to confederacy governed by an assembly which is composed of Heads of participant states’ instead of federation and undoubtedly, this obviously results from the unwillingness of its member states to transfer their sovereignty to a supranational decision-making body due to their protectionist attitudes when it comes to their national interests. The Committee of Permanent Representatives (COREPER) deployed in the Council of European Union is one of the most significant state intentions in this attitudinal tendency.

Finally, EU law is always superior to the domestic law if a legal contradiction occurs between the union’s legislation and national constitutions. Similar to federal constitutional systems, EU member states have to comply with the obligations of a common legislation in which the EU is exclusively competent when they are free to legislate in policy areas EU is partially competent or non-competent. In addition, EU has specific punishment mechanisms for the member states that do not obey the EU legislation. Whereas European Commission acts as the guardian of the treaties with its jurisdiction to start infringement procedure against the member state which violated the EU law, Court of Justice of European Union (CJEU) may sentence relevant state if the breach is not remedied in a given time. Its decisions are binding as primary source of law and cannot be reversed unless the opposite is stated by itself.

Nevertheless, the EU law has been formed by the ‘treaties’ rather than an exclusive common constitution in contrast to federations. New laws are made via ‘ordinary legislative procedure’ started by the European Commission and concluded with collaboration of European Parliament and The Council of European Union. However, this collaboration is not easily achieved. Their individual decrees on adoption of new acts are determined through majority voting, qualified majority voting or unanimity according to the importance of issue in European Parliament and The Council. It requires a strict compromise among most of the member states or all member states, or sometimes even the majority of EU population regardless the necessary number of member states is reached to adopt a decision. Instead, constitutional identity of a federation is self-directed, in other words, completely independent from its sub-units.

Consequently, with its present form, the EU seems to have fulfilled vital requirements from the point of economic integration, constitutional sovereignty and institutional structure so as to turn into a political unity as well as it cannot go beyond a confederacy or an international organization in terms of specific conditions under same policy areas. In my opinion, in one way or another, as long as it cannot achieve its constitutional self-governance, EU is unlikely to cope with the obstacles to full economic integration and its institutional structure such as the lack of common regulation on taxation, pensions and distribution of wealth and lack of a central government based on a single authority and vertical distribution of powers.

Sedef Asli Topal graduated from the University of Szeged in Hungary with a Masters in International Relations with Legal and Business Aspects. She finished the program ranked first in her class and is currently seeking her PhD.

Suggested citation: Sedef Asli Topal, The Future of Europe: Is Europe really moving forward to Federalism?, JURIST – Professional Commentary, Oct. 25, 2017, http://jurist.org/professional/2017/10/sedef-topal-future-of-europe.php.