Jean Monnet Center at NYU School of Law


3. Division of Sovereignty

The EU is based on co-operation among sovereign states. They are all members of the United Nations and they possess sole competence to shape the treaties that the EU is based on. Transferring competences to European level does not mean giving up the claim of the individual Member States to sovereignty, but the willingness to exercise sovereign rights in an associative system. Fischer's call to transfer `core sovereignty' to the Federation is, to that extent, in clear contradiction with French President Jacques Chirac's formula of `joint exercise of part of the national sovereign rights.' The consequences are clear. As long as the Member States exercise `sub-competences' jointly, they remain the central units of the system to which sovereignty is attributed. If, however, `core sovereignties'-however defined-are transferred to the `Federation', then it becomes the bearer of the central sovereign rights. In order to achieve this, a confederation with original sovereignty would have to be founded. Only then would an accountable entity that could form a `federal state' be constituted; for `federation' is, after all, without doubt just a euphemistic expression for what is really meant, namely, the European federal state. To constitute an autonomous bearer of sovereignty, the population of the EU would have to be constituted into a European people as the possessor of the sovereignty. This would indeed be the `great leap' that would transcend the EU's existing order. Whether such a `leap' is desirable and in what circumstances it could succeed would have to be considered in detail. Whether this `leap' is necessary for the integration process is another question.

In the course of deepening the integration, a `pillar architecture' has been formed in the European Union, with various tasks allotted to a supra-national system of decision and administration on the one hand, and to international co-operative systems on the other. Various systems exist alongside each other: the system for the internal market, the system for the `Schengen Area', the system for the `Euro Area', and the common foreign and security policy. EU Members do not all belong to the same systems. The desired `flexibility' has already found expression in the `pillar architecture'. If integration policy is to be advanced in this way, then the loose construction of the `pillar architecture' should not be given up. The successes in European integration to date have been achieved through an evolutionary process of segmental co-ordination. The `leap' into a sovereignty association with `core sovereignties', and correspondingly a competence for jurisdictional conflicts, would interrupt this evolutionary process and demand a density of normative integration that would have to lead to considerable increases in the claims on the regulatory and redistributive power of European level. The resulting conflicts and disappointments are easy to see, and would lead European integration into a politicisation that would intensify conflicts. It does not seem advisable to constitute a political system that, in all likelihood, cannot meet the expectations held of it in such areas as employment and harmonisation of standards of living, therefore itself running into legitimation problems. So far, success with integration has been based on deciding the individual steps towards it consensually, adequately legitimising them through domestic systems of the Member States and, in the long run, making them capable in the upshot of meeting the expectations aroused. The competence for jurisdictional conflict is exercised consensually by the European Council in the name of the national sovereign rights. The European Council would lose this competence for jurisdictional conflicts if there were a separate bearer of sovereignty alongside it. While Fischer writes `the concept of a European Federal State replacing the old nation-states and their democracies as a new sovereign is a synthetic construct going beyond existing realities', a `division of sovereignty between Europe and nation-state' must lead to the establishment of a new bearer of sovereign rights, a `European people': exactly to what he calls a `synthetic construct'.



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