A federal state

Although the importance of the Treaty on European Union in attempting to develop an ‘ever closer union’ within Europe is obvious, it was the Treaty of Amsterdam (ToA) 1997 that brought the proposal of the 1992 Treaty into existence. Hilaire Barnett writes that the ToA ‘gives substance to many of the commitments undertaken in principle at Maastricht.’ It is believed that the Treaty of Amsterdam dealt with four key areas with regard to the European Union, however when considering this Treaty with reference to Europe as a federation it can be considered most important to concentrate on only one of the four issues; the alterations within the structure of the institutions of the Union. However, this is not the only important area of the federal debate covered by the ToA, closer co-operation and flexibility are also important concepts when considering the idea of a federation. The Treaty of Amsterdam dealt with structural changes within the third pillar of the European Union, at the time of its creation there was no legal obligation for any members of the Union to adhere to the policies within this column. The Treaty transferred areas of free movement of persons, asylum and immigration out of this third and into the central or second pillar. This central pillar is known as the European Communities and is governed by Community law, meaning that members now have a legal obligation to follow Union rules in these three areas. Regardless of the introduction of the federal concept of free movement, the Treaty of Amsterdam cannot be seen to have created or even moved towards a federal Europe. This is due mainly to two reasons; firstly the introduction of the concept of flexibility within the Union.  Due to this flexibility clause, a provision that allowed Member States to opt out of community institutions and procedures was created. This forced the beginning of a ‘multi-speed Europe’ in which domestic issues still took priority over Community ones. Secondly, the Treaty of Amsterdam did not signal the introduction of a codified constitution, a key principle in the existence of a federation.  

        The Treaty of Nice (ToN) 2000 was designed to deal with enlargement of the Union and institutional reform. It dealt with issues such as; the limitation of the commission and reduction in areas in which the power of veto could be exercised. The Member States agreed the proposals of the ToN in December 2000, however due to ratification problems in Ireland the Treaty did not come into force until February 2003. A special provision introduced by the ToN was that a Member State could be suspended from the Union if it was found to be in breach of human rights, with only a majority of four-fifths in the Council of Ministers. This had previously required a unanimous vote by the Council. With reference to the process of qualified majority voting; the ToN allocated the number of votes that each country received under the new system, consequently resulting in the enhancement of the relative strength of the larger Member States.

        With reference to the issues regarding the enlargement of the Union; Agenda 2000 outlined the necessary criteria for future entry into the European Union. In the Commissions opinion each applicant state should demonstrate; a respect for democracy and human rights, a viable economy with a capacity to cope with competitive market forces and the ability to adopt the Community legal system. Neither of the documents created in 2000 provided any of the necessary steps to change Europe into a federal entity. Although definite criterion for entry into the Union were laid out, which is a federal idea, Europe had still failed to create the obligatory constitutional charter, the central federal document.      

The most recent, and important, development in the movement towards a federal Europe comes in the form of the Treaty Establishing a Constitution for Europe (TECE) 2004. As mentioned previously, the EU is governed by several treaties that have been revised during its 50-year history. It has now been proposed that, to increase the power and efficiency of the EU these Treaties should be merged together, this is the idea behind the TECE. The Treaty Establishing a Convention for Europe was proposed as a move towards the renovation of the European Union at the end of the twentieth century. The purpose and agenda included proposals to; decide on a fair distribution of competencies and simplification and incorporation of a Charter of Fundamental Rights into European Union law. The Constitution provides a way of consolidating all the previous Treaties of the European Union, and the inclusion of a ‘Bill of Rights’, of sorts, shows its intention of developing a formal document to protect the rights of the European citizen. The European Council described the proposed constitution as a move towards ‘greater democracy, transparency and efficiency’, coupled with the aim to give Europe a ‘single legal personality’ under domestic and international law.

 The European Union met on several dates in an attempt to come to an agreement on a Draft Treaty for the Constitution. A Convention on the Future of Europe was held with the intention of developing the Draft Constitution. This proposal was first presented to the European Council on the 20th June 2003, and later presented to the Member States on the 18th July 2003. This preliminary idea was met with much enthusiasm and meetings were scheduled for later that year with the intention of developing a complete Draft Treaty. These meetings were known as Intergovernmental Conferences and were held in Rome on the 4th October 2003 and in Brussels on the 13th December 2003. It was at this stage that the problems with the Draft Treaty began to surface. Member States could not agree on the size and composition of the new Commission or on the definition and scope of Quality Majority Voting; a new idea that has changed the policy of unanimity within the council to the requirement of a qualified majority, a possible challenge to the sovereignty of individual countries. The Member States entered into a negotiation stage. Due to a push from the Irish Presidency it was decided that all negotiations should be completed by June 2004. The official expansion of the European Union on the 1st May 2004 meant that the Convention would need to be ratified by twenty five Member States in order to become fully operational throughout the European Union. The European Council finally reached an agreement on the content and purpose of the Treaty Establishing a Convention for Europe on the 18th June 2004. On the 29th October 2004 this Treaty was signed by all Member States in Rome; a historically important city with regards to the European Union as it was the city in which the first Treaty was signed in 1957.

The TECE merges the three "pillars" which unifies the Member States and gives the Community a more federal structure. However special procedures are maintained in the fields of foreign policy, security and defence. 'Permanent structured co-operation' will be put in place in the area of defence enabling a group of Member States to build closer co-operation and to jointly undertake more complex military tasks. Again this structure could quite conceivably form a more federal structure. Other federalist ideas have been introduced, with qualified majority voting now applicable to most community areas, including asylum, immigration and judicial co-operation in criminal matters. However, as with most other areas in Europe a functionalist idea has been introduced to protect the interests of the Member States. A system widely known as ‘emergency brakes’ has been inserted, allowing a Member State to appeal to the European Council if it feels that its national interests are at stake. The UK requested that this was introduced in order to prevent any upcoming legislation infringing on the fundamental principles of its legal system. It is still therefore common practice that Member States regard their interests as more important than a united federation.

The inclusion of this Treaty into domestic law is still subject to its ratification by all Member States. Many countries have decided to hold a referendum to decide whether the Constitution will be included in their domestic law, probably most surprisingly was Tony Blair’s announcement on the 20th April 2004 that this would be the method by which the Constitution would face ratification in the UK. This proposal has caused widespread concern among the European Union as it is believed ‘that the UK will reject the Constitution, jeopardising the ratification process’. It has also been suggested that there is a high possibility of the UK pulling out not only of the Constitution but of the European Union altogether.

Many theorists have commented on their views of how the Constitution will develop Europe. Henrik Persson argued that there are four possible outcomes for the future of Europe; a network Europe, the European state, the corrosion of Europe and co-operating nation states. He defined these scenarios as; firstly, a network Europe where the borders of the Member States fade away and citizens become more integrated, a system based on that of the Swiss Republic. He described Europe in this case as ‘an umbrella organization’ and argued that it would lead to a growth in worldwide human relations, economy and communication. The next scenario, the European state, sees the movement of Europe in a more federal direction; with the creation of the president and foreign minister and the differences in power of the larger Member States. ‘Policies regarding economics and foreign and security matters are all controlled from Brussels.’ The Union becomes a major global player in international trade that can compete with the United States and China. Thirdly, the corrosion of Europe, sees the breakdown of co-operation between the Member States, especially with regard to foreign policy and security matters. This theory argues that domestic issues resulting their ‘undermining the legitimacy of the union’. This ‘friction and frustration’ of the Member States subsequently causes the collapse of the European Union. Finally, co-operating nation states, describes a Union where political and economical co-operation continue much as they are today. In other words the existence of the TECE makes very little difference to the foundations of the European Union, this is the outcome that seems to be most likely after considering the Constitution in light of the findings of our research. Dr. Patrick Dixon has also published his views on the future of Europe. He has developed a theory he has called ‘Tribalism’, which argues that due to the variance of culture within the European Union, a federation simply wouldn’t work. He says that the cultures are too widely diverse for them to successfully integrate.

On the surface of it, this Treaty Establishing a Constitution for Europe, certainly looks like the creation of a federal Europe, however on closer examination it is far from that. Although this provides the most fundamental of federalist documents, a codified constitution, the content of this constitution contains many proposals that cannot exist in a federation. For example, the provision introduced in the TECE permitting a Member State to leave and the protection of a Member State’s ability to veto proposals in fields of foreign policy and taxation. Even with the introduction of the Constitution the importance of Intergovernmental co-operation is still highly significant; domestic government and issues are still very much at the forefront opposed to European institutions and Union proposals. This is highlighted by the fact that the introduction of the TECE relies on its ratification by all Member States. The introduction of a president and foreign minister are also federal ideas, however their introduction poses the question of whether the Treaty Establishing a Constitution for Europe is purely a movement towards a more federal system within the political institutions of the European Union; are we simply becoming structurally more federal? Evidence can be found to support this idea by considering the more functionalist parts of the European Union that still exist, even after the creation of the TECE, such as the ‘multi-speed Europe’ introduced by the ToA. Finally, and most importantly, the Treaty Establishing a Constitution for Europe cannot constitute the development of a federation due to the questionable legal status of the document itself, how can it signal such a fundamental change in the existence of the European Union when there is no certainty of the implications of such a document?

In conclusion it could be said that Europe is not a federation. However the introduction of the TECE definitely signals a movement towards the future existence of one, through the alterations it has made to the institutions and political make-up of the Union. Therefore I would finish by saying that even nearly twenty years on it can be said that ‘the European Community is not a federation, though it may one day become one.’