In its third line of investigation, the IACL’s Research Group on the New Frontiers of Federalism proposes to reflect, as the introduction to this symposium puts it, ‘on the role of federalism as a tool to deal with the growing complexity of a multilevel constitutional space’. The European Union, a multilevel constitutional space par excellence, seems an excellent case study for this area of research. As I will argue in this post, studying the EU from a federal perspective may help us in better understanding current challenges the EU and its Member States are facing. In turn, reflecting on federalism in the EU may also shed light on the nature and concept of federalism itself, and stimulate reflections on how federalist theories may evolve in the future.
Before focusing on a few possible research topics to be explored with a federal lens, I would like to start with a perhaps obvious premise. Still today, the constitutional charter of the EU - the two basic Treaties and the Charter of Fundamental Rights - does not contain the term ‘federalism’. Nor do these documents make any reference to explicit federal goals or to a federal finalitè of the integration process. From a more political point of view, the federalist ‘dream’, which has its roots in Altiero Spinelli’s work and was then promoted among others by Joschka Fischer in the early 2000s, never fully recovered after the collapse of the Constitutional Treaty of Rome. To this day, the ‘F’ word remains almost taboo in all debates on the future of Europe and the EU. Yet, the political setbacks to a federal transformation of the EU have not stopped the scholarly analysis, especially in the legal field. Continuing a trend that goes back decades – see, for example, the work of Eric Stein and Joseph Weiler – we (EU and comparative constitutional law scholars) have continued to reflect on whether the EU could be considered a federation, and, if so, what type of federalist model it adopts.
At the same time, competing views, considering the EU still first and foremost a product of international law, remain popular and relevant. Fundamentally, it is the very nature of the EU that is still debated and is uncertain. Taking for granted that the EU is not a state and thus also not a federal state, the question remains open of how to define in positive terms what the EU project is, or to situate it on the continuum between ‘traditional’ international organisations and federal states. The continuing coexistence of the two dimensions was evident in one of the landmark judgments of the last few months, the Wightman case. In this case the Court of Justice was called to decide whether or not a notification of withdrawal from the EU under Article 50 TEU was revocable. The Court, and earlier the Advocate General, swung between federal-constitutional thinking (the reference to the Treaties as ‘the basic constitutional charter’ of the EU, establishing ‘a new legal order’), and international law arguments (most importantly framing the right to withdrawal as a ‘sovereign choice’ of the Member States, but also making references to the Vienna Convention on the Law on the Law of the Treaties), well illustrating the persistence of both dimensions in the EU legal order.
In doing so, a decision like Wightman shows the need to push the ‘federal debate’ on the EU forward. The debate needs to acknowledge the coexistence of a federal-constitutional dimension with an international one. The international dimension certainly remains relevant for studying the EU, for example as an explanatory framework for (the limitations to) direct effect, recently underlined in the Popławski II case, but also for the largely intergovernmental system of the Common Foreign and Security Policy. On the other hand, denying the relevance of the federal comparison would deprive us of an equally meaningful perspective: regardless of whether or not they are sufficient for defining the EU as a federation, it remains that the EU does show several key features of federal systems. Many, if not all, basic principles of the EU system can be read with ‘federal goggles’ (see the volume on the Principles of European law edited by Robert Schütze and Takis Tridimas, defined by Xavier Groussot as an ‘exercise in “intellectual federalism”’). It might be that, for some, the EU-law translation of these federal principles could be considered quite rudimentary. To give an example, the idea of ‘institutional balance’ in the EU might be shallower than the idea of ‘separation of powers’ in national constitutional systems. But in this case too, the federal perspective may actually stimulate reflections on how to improve the EU system. If we move beyond the definitional battle, we can use federalism as a lens to observe the current ‘state of the Union’ and reflect on whether federal experiences can contribute to give answers to a number of open questions in EU law. Three broad areas seem particularly fitting for this type of analysis.
First, I see federalism as a meaningful tool for understanding, explaining, and proposing solutions to the big crises the EU has been facing in the last decade: the monetary and economic crisis of the Eurozone area, the constitutional crises in Hungary and Poland, and then also the migration and asylum crises. All these challenges have a federal dimension, both in the sense that many federations have been facing similar questions, and that the crises reveal tensions in the relationship between the centre (the EU level) and the periphery (the Member States, in this metaphor), as well as horizontally between Member States. Broadly speaking, these tensions arise from, on the one hand, the growing interdependence generated by the EU integration process, and, on the other, the lack of adequate tools to manage that interdependence. Looking at how federations have managed and resolved these tensions may offer a pattern for developing EU-solutions (for an example on fiscal federalism as a model for the Eurozone, see here). At the same time it should not be forgotten that there often remain profound obstacles for a radical implementation of federal solutions in the EU system, as for example when it comes to the Union’s reaction to constitutional crises in the Member States.
Second, federalism can help us in reflecting on the EU’s fundamental rights regime. As correctly anticipated, the introduction, a decade ago, of the Charter of Fundamental Rights generated federal-like questions. Two key provisions tried to address them: Article 51 of the Charter (the norm that limits the scope of application of the Charter to the Member States, stating that they are only bound by it when they implement EU law) and Article 53 of the Charter (dealing with levels of protection of fundamental rights). This federal balance, which can in any case never be set in stone, was upset soon after the entry into force of the Charter by the twin judgments in Akerberg Fransson and Melloni. Since then several questions remain open: for example, when are Member States free to maintain their own (higher) standards of protection of fundamental rights? What is the interplay between EU legislative provisions and (EU) fundamental rights standards? Should the EU harmonize fundamental rights? More generally, the division of responsibilities in the governance of fundamental rights, including their concrete implementation, remains to be settled, and would benefit from a clearer doctrine inspired by federal comparisons.
A third line of reflection is on the Court of Justice as a ‘federal court’. This issue is obviously related to the second theme suggested above, but there is more to it. On the one hand, the Court of Justice recently tried to further strengthen the position of national courts vis-à-vis domestic actors, most notably by protecting their judicial independence (ASJP, Commission v Poland). On the other, it has also tried to reinforce the ‘vertical’ dimension of EU judicial dialogue. Most remarkably, in an infringement action against France, the Court of Justice for the first time declared a breach of the duty to refer preliminary questions that is imposed by Article 267 TFEU on last instance courts. More generally, the Court of Justice is increasingly placing further demands on national courts under the system of Article 267 TFEU, also by putting stricter standards for the admissibility of preliminary questions. The picture that might be emerging is that of a Court of Justice working as the apex court of the EU judicial system, with national courts standing below it. By redesigning the system of the European judiciary, the Court of Justice might thus be acting again as an agent of federalisation, as it did in the first decades of integration to fight the political stalemate. Here too, a federal perspective can contribute to our understanding of the EU judicial system’s developments.
In conclusion, even if a federal transformation of the EU is not on the horizon, federalist studies and comparisons remain a key tool for understanding and assessing the project of European integration as well as for suggesting possible solutions to the unresolved challenges the EU and its Member States are facing today.
Matteo Bonelli is Assistant Professor of EU Law at Maastricht University.
Suggested citation: Matteo Bonelli, “Federalism & the European Union: Understanding current challenges through a federal lens” IACL-AIDC Blog (31 October 2019) https://blog-iacl-aidc.org/new-frontiers-of-federalism/2019/10/31/federalism-amp-the-european-union-understanding-current-challenges-through-a-federal-lens