Jean Monnet Center at NYU School of Law

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V A Federal Europe

A European federal State capable of steering clear of the excesses and the abuses which have marked the history of its constituent units is in short conceivable. If - and this is a big if - the force of circumstances were to kindle the necessary political will, it could even be feasible.[49] But how desirable is it? So far I have not faced this question squarely. I shall do so now: if, as promised by the Treaties of Rome, Maastricht and now Amsterdam, the march towards an ever closer union between the peoples of Europe is to continue and if, in the course of this march, the peoples of Europe are to preserve the constellation of values informing their ways of life, then Europe needs those well-tested institutions and procedures which only statehood can provide.

The federalists of the thirties and forties - the Marquis of Lothian, Lionel Robbins, Altiero Spinelli, François Bondy - raised a number of arguments in favour of this proposition, many of which are still topical. Of course, they could not predict the most topical issue, namely the threat which a denationalisation of the economy, especially of the financial markets and of industrial production itself, would pose at the end of the century to Europe's employment policies and social security schemes.[50] It has become almost a commonplace to state that, under the thrust of international competition, our countries are faced with a dramatic choice: either to retain the generous entitlements resulting from the welfare state and thus to accept a permanently high level of unemployment, or to speed up deregulation and `corporate rightsizing, `[51] leaving profit as the sole arbiter of virtue and so marginalising the least skilled and least educated or the most vulnerable of our citizens.

These remarks should not be taken as a reflection of a hostile attitude on my part towards globalisation. I am aware of its benefits and I find it extraordinary that within the European left even respected scholars such as Eric Hobsbawm voice regret that we no longer have recourse to protectionism as a means to counter its social effects.[52] Those effects cannot be denied, however, nor is it possible to ignore the fact that they do tend to undermine the loyalty of large segments of the population. How else, indeed, might one explain such highly visible developments as the revival of extreme right-wing populism, the rampant egotism of most interest groups and the burgeoning of identity politics and xenophobia (Le Pen, Haider, Bossi, Kjærsgård, Hagen), disquieting movements built upon the ruins of the old ideologies?[53] Forced with their backs to the wall by a world economy which they cannot control, some of our nation states are at a loss to manage the aftermaths of the upheaval which globalisation has brought about without resorting to coercion. A European state, by contrast, were it only because of the broader vision and the single-mindedness which it could bring to the exercise of Europe's vast economic power, would probably be able to influence the global market. Our social contract would still have to be restyled, but its core values might thus be salvaged with the possible result of toning down the loyalty crises which seem to have arisen by virtue of their impairment.[54]

Forceful as this argument is, however, it is not the most cogent one which can be advanced in support of statehood for Europe. It is in fact based on the social rights of the European citizens, while something even more precious is at stake: their political rights or,in one word, democracy. Some data will cast light on the magnitude of this problem both in quantitative and qualitative terms. The prediction usually attributed to Jacques Delors that, by the year 2000, 80% of the economic and social regulation applicable in the Member States will originate in Brussels is probably spurious[55] and surely exaggerated. Nevertheless, according to a study by the Conseil d'Etat, of the 2981 legal measures which came into force in France in 1991, 1564, that is almost 53%, emanated from the Community's capital,[56] while a more recent statistic shows that 30% of the legislation produced in the Netherlands is composed of provisions implementing Community directives.[57] On the other hand, it is true that the members of the body (the Council of Ministers) which enacts those directives and the more important regulations possess a proper legitimacy, having been elected to their national Parliaments or deriving their mandate from them; but, as everyone knows, they often confine themselves to rubber-stamping, in most cases behind closed doors, drafts prepared by an ambassadorial college (COREPER) and, at a lower level, by numberless,[58] faceless and unaccountable committees of senior national experts.[59]

[49]Schmitter, loc cit, n 10, suspects instead that an integrated Europe will move increasingly in the direction of a multi-layered government, without clear lines of demarcated jurisdiction and identity, for which he coins the term `condominio.'

[50]Habermas, `Remarks on Dieter Grimm's `Does Europe Need a Constitution?'' (1995) 1 European Law Journal 303, at 304.

[51]Cf, Hughes, Culture of Complaint. The Fraying of America, (OUP 1993), 27.

[52]Hobsbawm, Age of Extremes. The Short Twentieth Century 1914 - 1991, (Michael Joseph 1994), at 572-574.

[53]Régis Debray has brilliantly telescoped the relation between globalisation and the upsurge of identity politics with the phrase: `les objets se mondialisent, les sujets se tribalisent'; cf, Mancini, S., op cit, at 4.

[54]Cf, also O'Leary, op cit, at 314, who suggests that to proceed, even at this stage of integration, without deepening the social legitimacy of the Community would be a grave error.

[55]Weiler, `The European Union Belongs to its Citizens' (1997) 22 European Law Review, at 151.

[56]Conseil d'État, Rapport Public 1992, Etudes et documents, no.44.

[57]For an interesting comparison of the legislative output of the Council of Ministers and the German Bundestag and Bundesrat between 1958 and 1993 see Rometsch and Wessels, `The Commission and the Council of Ministers' in G. Edwards, and D. Spence, (eds.), The European Commission, (Cartermill 1997), at 212.

[58]According to F. Hayes-Renshaw, and H. Wallace, The Council of Ministers, (MacMillan 1997), 97: `The exact dimensions of the base of the Council hierarchy is one of the EU's great unsolved mysteries. Hardly anyone knows how many working groups exist at any one time.'

[59]Mancini and Keeling, loc cit, at 190. According to Wessels, `The EC Council: the Community's Decisionmaking Center' in R.O. Keohane, and S. Hoffmann, (eds.), The New European Community. Decisionmaking and Institutional Change, (Westview 1991), 133, at 140: `[i]n a rough estimation, 80% of the Council's acts are decided on a professional bureaucratic basis. Some documents ... can even pass the Council without a political debate.' Hayes-Renshaw and Wallace estimate that `in practice [the] committees are the last actual arbiters in Council negotiations of roughly 70% of the legislative output, ` op cit, n 58 at 15. It is interesting to note that, although obviously aware of this state of affairs, national governments have done little if anything to improve it. According to J. Lodge, `Transparency and Legitimacy' (1994) 32 Journal of Common Market Studies 343, some of them prefer to lay the blame on the Commission, depicting it as an autocratic and distant Eurocracy which dictates policy to the Member States and ignores the public's desire for openness.

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