Effectiveness vs. Sovereignty: The Catch Twenty Two of the European Union

The European Union faces a number of problems that are inherent in the forming of a Union out of disparate member states. One such problem is the integration of the various states without causing a loss in the individual vigour of each member state that is involved. There is also the problem of creating an effective European government whilst avoiding over centralisation and the progression to a Federation of European states. In a sense the progression to a ŒUnited States of Europe‚. The notion of this sort of Union is one that sits on the edge of any discussions of the European Union and its further integration. The temptation to move in this direction however needs to be rejected, to create a New Europe in this image would be to destroy the unique contributions that each member state brings on its own. For the purpose of this paper I will be focusing primarily on the Draft treaty of the European Union which was adopted by the European parliament on the 14th of February 1984, and reflects the continuing preoccupation with the problem of a Community that is too weak in relation to its member states, whereas once a Union is established with competent abilities and powers and majority voting, the problem will then become a Union the is too strong in relation to its states. This balancing act between creating a European Union that is effective, while at the same time respectful of its local governments and the integrity of its member states will be discussed further in this paper. Looking at the last three decades of European integration we can see a remarkable exercise in integration and an example of effective shared rule and participation. In the European Union this goal has gone from myth to reality. Historically most federations or unions of member states have either dissolved or become full fledged Federal states, with the central government being the dominant power over the affairs of the various member states. While the European Union is still young, it is a remarkable exercise in the making of a working federation. Thus far the individual nation state has retained its vigour, and actually been sustained by the wider structure of the Union. In the Union, sovereignty has become truly shared. Most commonly the typical expressions of sovereignty are the control of ones own currency, diplomacy, policing, and defence. Currently the member states of the European Union are in the process of subscribing to a common currency, a European court that is to have jurisdiction over selected areas of law, and a common defence policy has been to an extent and is still being formulated. An interesting point to the process of the union is however is that by the very preamble of the treaty it is never supposed to arrive at the logical end point of a centralised federation. ŒDetermined to lay the foundation of an ever closer union among the peoples of Europe.‚

The implication in the phraseology is that the process of integration is to go on for Œever‚, never actually arriving at the end point of a foundation of a union among the peoples of Europe. The idea of a European union is not to be a substitution, but a balance between the individual nation states and the supranational structure. This balance is a difficult one to establish and maintain. As was mentioned in the opening paragraph the European Union must avoid over centralisation, whilst still being an effective supranational structure. For a quarter of a century Europe operated under the policies and political capital that was invested in the Treaty of Rome. Many economic sectors were transformed by the common market that was established within that treaty. The European community has also done an exemplary job at resisting the market fragmentation that dogged the member countries in the thirties. This resistance of fragmentation has allowed the European bloc to move towards becoming a trading bloc that is on the level of the United States. A problem however was that the Institutions of the European Union were not effective to promote development. The right of veto, while a reassuring safeguard for countries to keep them from being pulled into agreements or institutional constructs that they were unhappy with, hampers the ability for the European Union to take effective actions. Rather than discussing issues and problems for extended periods of time and taking weak or late action, the Draft Treaty proposed that a system of majority be required to make, or enact economic changes. The Draft treaty did not go so far as to remove the need for unanimity when it comes to amendments to the treaty itself and to the aspects of defence and foreign policy, but in the issues of economics, one of the primary aspects of the Draft Treaty was that it was no longer necessary for the Union to have one hundred percent support in order to enact changes. "

If the system of the Union is to be uniform, the law of the Union must take precedence over national law... this is not a question of political supremacy, but simply a condition of consistency."

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If the system of the Union is to be uniform, the law of the Union must take precedence over national law... this is not a question of political supremacy, but simply a condition of consistency."

In order to establish the essential elements of an economic union the economic laws of the union must have supremacy over the laws of the individual member states. It is not possible to have a working union if all of the member states are not in accordance to the overlying economic policy. This requirement makes it pretty much a given that the economic laws must all be under the control of the European Parliament and not left to the individual member states to enact as they see fit. In order to have competence in the system this aspect must be centralised.

One of the points that we are coming to is that the two critical aspects of government in the EU are effectiveness, or competence, and sovereignty. The need for the EU to be effective and not just another toothless international entity is a major argument for increasing the authority of the EU in as many aspects as possible, thus allowing the EU to be able to address problems and issues that cross the national borders of its member states. What the EU must do is create and design institutions and procedures that allow it to make these kinds of supranational policy decisions while still allowing for sovereignty of its Member States within that framework. The other big question is accountability. Previous to the election of the European Parliament by the people of Europe, there was great concern about the accountability of the decision makers at the EU level. The decision makers were essentially appointed and then left to their own devices. This situation did however seem to keep the decision makers partially in check for a while, knowing that they were not there with the authority of being elected by the people. With the recent election, ministers are making larger changes and greater moves towards policy, feeling that they now have the approval of the people and the mandate from the people of Europe, which in a sense they do, however the turn out rate for the elections was much lower then the average rate for national elections. So the ministers do have the mandate of the people, but not the sweeping mandate that they may have wished for. This mandate has however given the European Parliament licence to move towards being more of an effective government. The problem with effectiveness though is that in the case of the European Parliament it leads towards a loss over sovereignty once again on the level of the Member States. This catch twenty two is likely the most significant problem that the EU faces.

Another of the major questions is what policies need to be essentially integrated and which ones can be left to the individual member states? At what point does the effectiveness and competence of the European Parliament lead to over centralisation and a loss of the level of self determination that each state should enjoy? It appears from the statement above that in order for the Union to be competent it should be able to regulate the tax rate of any member country, to tinker with individual economies, to have a say in any of the budgets of any government organisation, and have jurisdiction over school curriculum in order to insure that all students within the Union enjoy the same sort of privileges. Regulate the heath system within any country in order to allow European citizens the ability to access heath care where ever they are working, and to put a road through any part of a member country in order to create a even level of infrastructure throughout the union. While the Union is a long, long way from being at the level of this sort of control and would never presume to go so far as to attempt to regulate all of these aspects, it is something that needs to be discussed as a significant policy in the future of integration of the Union. This over centralisation is a distinct possibility and has occurred in other Federations past.

In order for the European Union to protect the cultural, social, and sociological differences of the various member states of the EU it must stay relatively decentralised. . However in order to insure that the EU functions smoothly and effectively many would side for a more centralised, this however leaves the door open for the central government to more easily move in to more and more areas of regulation, sliding closer and closer towards an over centralised government, that loses the diversity of the individual nation states. Most Europeans are aware of the dangers of over centralisation and resist it at any level of government. Slogans such as "small is beautiful" are a reflection of this feeling. Thus we come to one of the great dilemmas of the EU. How to create a union that is effective, but does not disrespect the need for decentralisation. Over centralisation would undermine the civic order, and suppress the vitality of the national, and local governments under it. The Draft Treaty makes provisions that;

"The Union shall only act to carry out those tasks which may be undertaken more effectively in common then by the member states acting separately, in particular those whose execution requires action by the Union because of their dimension or effects extend beyond national frontiers.‚

The problem arises with the interpretation of such an article. Some will interpret the article in a manor which follows the idea of "small is beautiful" where as others may see the flexibility of such an article as licence to increase centralisation. History in the United States shows just how liberally this sort of flexible authoring can be stretched The US constitution was designed to allow the federal government to "regulate commerce" among the several States.‚ This was only intended to allow the federal government control insofar as to help it regulate the economy. In the US these two words have been interpreted so liberally by the Supreme Court that the Federal Government is in complete control of all aspects of the economy. While it is possible to ask what the problem is with this, it bears ominous tidings for the EU considering how similar the wording is. By 1942, the courts in America had moved that any activity be it local or not, that exerted an substantial effect on inter-state commerce, irrespective of the distinction of "direct" and "indirect" that was originally placed upon the option of government control.

The question of whether or not a task can be "undertaken more effectively in common" is a statement that also opens the door for more and more moves towards centralisation. The Federal Republic of Germany had a similar set of legislation that stated that "In so far as is necessary for regulation by federal law exists because" the preservation of legal or economic unity demands it, in particular the preservation of uniformity of living conditions extending beyond the territory of and individual Land." This provision has been interpreted liberally also, allowing more and more power to be taken from the individual territories and placed in the control of the German Federal government. The Draft Treaty also has the same sort of wording in it. "the progressive elimination of the existing imbalances between its regions." There are also similar statements in Article 45.2, "policies of the Union shall ' promote' the progressive elimination of the existing imbalances between its various areas and regions." While it is optimistically possible to say that the preamble of the treaty does help to protect the over centralisation of its member states by stating the need to respect the assorted cultural and historical identities of its various member states, this sort of statement is often not enough protection against central governments who are often more concerned with regulating economies as seamlessly as possible, and not concerned so much with maintaining diversity, and historical identity of those areas.

The Treaty of Rome, contains within it provisions which are also relevant to this situation both in its wording, and in the results that have come out of it.

"If any action by the Community appears necessary to achieve, in the functioning of the Common Market, one of the aims of the Community in cases where this treaty has not provided for the requisite powers of action, the council, acting by means of a unanimous vote on a proposal of the Commission and after the Assembly has been consulted shall enact the appropriate provision."

This provision has allowed the Council of Ministers through initiatives started by the commission, and on the condition of unanimity of the council to enter into areas not originally envisioned by the treaty. A major example would be the movement of the European Parliament into areas of the environment, and the domain of environmental policy. The move was justified in collaboration of this article and the references towards improving the "quality of life" and the raising of living standards that are in the opening of the treaty. Through this interpretation the Council enacted legislation designed to protect ground water against pollution caused by dangerous substances. While this is not a bad action from examination of just this situation without consideration of the implications of such a move, the implications lead to some undesired possibilities in the future. The ability of the council to enact legislation based on the equalisation of member countries, and the "improvement" of the quality of life in various member states, or across member states leads straight to a over centralised government, where Member States become nothing more then provinces of a Federal Europe. This trend is also visible in some of the actions of the judges in The European Court of Justice who have used article 235 as a means to expand power. Member governments who have failed to take actions wished by the Council have been declared treaty violators in that they are encroaching on the authority of the original European Community institutions as was granted, or implied by the wording of the Treaty of Rome. Some of the decisions of the European Court of Justice have created a environment that facilitates the movement of power from the individual Member States to the European Union.

The Maastricht Treaty contained within it some provisions designed to hamper the ECJ and the ability of the EU to enter into certain areas. Specifically the areas of justice and home affairs. These steps were taken to counter balance and prevent the Union from moving to far towards a centralised government.

The positive aspect is that currently the European Union seems to be the exception to the trend towards over centralisation. The steps towards integration are moving on step by step with little resistance to the actual process. A point in favour of the Union from a population that is wary of centralisation. The truth is also that against all of the theoretical and natural progressions towards over centralisation the European Union has remained a Union of Member States in which none have lost their identity, and all have maintained their sovereignty. The steps towards integration have helped to create a more internationally powerful coalition of states as opposed to a single European Federation. What must be borne in mind however is that the European Union is still relatively young and there is still a long road ahead. We are just now getting into some of the more tangible and visible aspects of integration, with the phasing in of the new currency. The next ten years will show whether or not the EU is able to create the Union of unique member states that all contribute to the Union while maintaining their individual identity. So far however the European Union has been a successful example of a federation of member states, without over centralisation.