When studying groupings of states, and the European Union is undoubtedly a grouping, classical constitutional theory knows only two possible types: the confederation of states and the federal state. Can there be a third type, a federation but not a federal state, as Joschka Fischer's speech seems to suggest?
As from the end of the Nineteenth Century, German (Laband and Jellinek) and French constitutionalists, starting from L. Le Fur's theories that inspired the ideas of Esmein, Hauriou, Duguit and Carré de Malberg, formulated a clear legal distinction between two great formulas for groupings of states: confederations and federations.2 The confederation of states does not constitute a new state but just an association of sovereign states (Staatenbund), while the federal state (Bundesstaat) is, as its name indicates, both Staat and Bund, state and federation. As L. Le Fur writes:
The federal state, in virtue of being a state, has sovereignty' (p. 590), whereas `the confederation of states is only an association of sovereign states [and] does not itself possess sovereignty, nor, consequently, the character of a state. (p. 498)
In the Twentieth Century, Hans Kelsen, while incorporating his theory of federalism into a more general theory of the centralisation and decentralisation of legal orders,3 confirms the distinction between the federation of states, which is a grouping of states, not itself a state, but a `purely international union of states ... on the model of the League of Nations,' and the federal state which is, as its name indicates, a state within the meaning of international law. The members of the federation are, in contrast, collectivities that are no longer states within the meaning of international law. This is because their foundation is to be found in the constitution of the federal state, and not directly in the international legal order.4 Consequently, Joschka Fischer is quite right to call the present Union a confederation. But what exactly does he mean by a federation?
There is evidence of the fact that the choice of the term `federation' raised a problem for the German Foreign Minister. In the Chevènement-Fischer dialogue that appeared in Le Monde on 21 June 2000 (p. 15-17), the French Minister of the Interior said, in connection with the European Union, that `It is neither a federation nor a confederation. It is something that has never been described anywhere, and does not even resemble the Holy Roman Empire of the German Nation.' Joschka Fischer clarifies as follows: `We sought a neutral word in German instead of, and in place of, federation. Translated into French or English, it still remains federation; so we resigned ourselves. We have to accept the fact that federation is the word that best suits.'5
It is easy to see why the word federation embarrassed the German Minister: in ordinary language, just as in the language of constitutionalists, `federation' immediately evokes the `federal state,' and this is what has to be avoided, even at the cost of a polemical vocabulary which is absent from the rest of his speech at the Humboldt University. Thus, he says:
Only if European integration takes the nation-states along with it into such a Federation, only if their institutions are not devalued or even made to disappear, will such a project, in spite of all the difficulties, be workable. In other words, the existing concept of a federal European state replacing the old nation-states and their democracies as the new sovereign power reveals itself to be an artificial construct which ignores the established realities in Europe. (p. 9-10, our emphasis).
But, at first sight, the solution Fischer offers to the Community's problem looks enormously like a federal state. Thus, again on page 9, he writes that for all the problems of enlargement of the Union:
There is a very simple answer: the transition from a Union of states to full parliamentarisation as a European Federation .... And this means nothing less than a European Parliament and a European government which really do exercise legislative and executive power within the federation. This federation will have to be based on a constituent treaty.
If it is added that this European Parliament is to have two chambers, one to represent the Europe of nation-states (a `senate' on the American or German model, p. 10), with a European government able to be formed from the national governments (p. 10) or else opting for the direct election of a president with `far-reaching executive powers,' distinct from the Commission, which would become a mere administrative body,6 one may legitimately ask what would really separate this federation, which, like Jacques Delors, he calls a `federation of nation-states' (p. 13), from a classical federal state.
This point is a capital one politically, as his French colleague H. Vedrine showed in his `reply to Joschka Fischer' published in Le Monde on 11-12 June 2000, by dotting the i's as follows:
The core of the ideas is the concept of federation and of federation of nation-states. Does this, at the end of the day, amount to one and the same thing, classical federalism? In that case, we are moving towards an impasse.
Everything in the constitutional model presented by the German minister, thus depends on the survival of the nation-states. They would not disappear as in a federal state, or rather, taking up what might be a slip of the pen, not disappear `complètement'.7 It is one thing to affirm the co-existence of the federation and the nation-states, but quite another to present a convincing picture of it. But we have seen that, in this federation, there is to be a European Parliament made up of two chambers and endowed with legislative powers, a European government (perhaps under the aegis of a President of the Union) to act as an executive, and also a `constituent treaty which lays down what is to be regulated at European level and what has still to be regulated at national level' (p. 11).
But instead of what the Minister rightly calls `inductive communitarisation,' there will be `a clear definition of the competences of the Union and the nation-states respectively in a European constituent treaty, with core sovereignties and matters which absolutely have to be regulated at European level being the domain of the federation, whereas everything else-the least essential bits, let us not forget-would remain the responsibility of the nation-states' (p. 11).
To know what this `finalised federation' (p. 11) might look like, one can again go to the description Fischer gives of the federation that might be set up among the Member States belonging to the `centre of gravity' that are resolved to go forward without waiting for all EU states to be ready to do so. Here is how the Minister sees the action of the states belonging to the centre of gravity:
Such a group of states would conclude a new European framework treaty, the nucleus of the constitution of a federation. On the basis of this treaty, the Federation would develop its own institutions, establish a government which within the EU should speak with one voice on behalf of the members of the group on as many issues as possible, a strong parliament and a directly elected president. Such a centre of gravity would have to be the avant-garde, the driving force for the completion of political integration, and should, from the start, comprise all the elements of the future Federation. (p. 14).
Without dwelling on the feasibility of this sort of federation within the Union, one should note that the `militant' aspect of this federation, that might be called `interior' and would still, in principle, fail to be a federal state, is, after all, hard to reconcile with a constitutional model in which the nation-states conserve their sovereignties: the federation speaks with a single voice on as large a number of questions as possible, and has a strong parliament and a directly elected president.
But this interior federation foreshadows the European Federation which is the last stage of European integration (p. 15). Can one, in these circumstances, be satisfied with the assertion that:
... All this will not mean the abolition of the nation-state. Because even for the finalised Federation, the nation-state, with its cultural and democratic traditions, will be irreplaceable in ensuring the legitimation of a union of citizens and states that is wholly accepted by the people' (p. 11).
The completion of European integration can only be successfully conceived if it is done on the basis of a division of sovereignty between Europe and the nation-state. So what must one understand by the term `division of sovereignty'? As I said, Europe will not emerge in a political vacuum, and so a further fact in our European reality is, therefore, the different national political cultures and their democratic publics, additionally separated by linguistic boundaries (p. 10).
2 See, L.Le Fur, Etat fédéral et confédération d'Etats, Paris, Thesis 1896, reprinted, 2000, with a foreword by Charles Leben (Le Fur 2000); for a survey of German scholarship on the question, see, Beaud (1999).
3 For a tentative analysis of the European Community in the context of Kelsen's theory, see, Leben (1991)
4 H.Kelsen, Théorie générale du droit et de l'Etat, French transaltion of 1997, (Kelsen 1997:367).
5 Le Monde 21 June 2000, p. 17, 6th column. On the comparison, curious if nothing else, between the Union and the Holy Roman Empire of the German Nation, see p. 16, 1st column.
6 This is the solution he prefers: see his declaration before the European Parliament's Committee on Constitutional Affairs, Le Monde on 8 July 2000 and International Herald Tribune on 7 July 2000. But the idea has been rejected by Chancellor Schröder, who calls it a `perfect illusion,' in Le Monde on 18 July 2000, p. 3.
7 Translator's note: see quotation above-in the French version; neither the English nor the German original contain this adverb.