CAN WE DELEGATE THE FOUNDING OF THE EUROPEAN FEDERATION?

by Francesco Rossolillo

The Federalist, 1994, Number 1

The Karlsruhe constitutional court's decision removing the last hurdle to Germany's ratification of the Maastricht Treaty is a complex document which touches on certain key points concerning the European unification process. Many commentators have interpreted it as applying the brakes to the German government's European policy. In fact it does no such thing. Rather, the decision clearly aids those working for European political unification since the Court has undertaken an in-depth examination of the phase which the process has currently reached and the constitutional problems raised by its present state of development. In this way the decision provides very useful information about the direction in which to move and the nature of the obstacles to be faced.

The basic observation the Karlsruhe judges make is that the Maastricht Treaty establishes a grouping of states (defined with an unusual term in German constitutional language Verbund) based on the European peoples, and not a state based on a single people (Staatsvolk). This means that the grouping's legitimacy derives primarily from the national peoples through their respective parliaments; to this is added, "in measure depending on the deepening of interdependence between European nations," a legitimacy deriving from the European Parliament, elected by the citizens of the member states.

The above establishes that as long as the Union maintains this characteristic, the member states will be the masters of the Treaty through the organs delegated to negotiate and ratify its formal modifications. The Federal Republic, by ratifying the Maastricht Treaty, "thus does not submit to a self-propelling mechanism, free of any supervision or control.... The Treaty opens the way to further gradual integration based at each subsequent step either on conditions that the Parliament should be capable of foreseeing, or on the further consent of the federal govern-ment, influenced by the Parliament."

Hence the court denies that an entity which has yet to assume the character of a state, and which offers democratic guarantees at the European level of a subsidiary nature (under any circumstances totally insufficient), can arrogate to itself the "competence of competences", the power to decide the scope of its own powers. The Treaty can be modified in order to turn the Union into a state, but this will only be possible with the approval of the member states and their parliaments.

The underlying message of the judgement hence seems to be that it will be impossible to create the European federation by sleight of hand. The foundation of a state presupposes a clear and explicit act of will. In the opinion of the Karlsruhe Court, which examined the question within the legal framework of the Treaty, this is represented exclusively by the explicit approval of the member states. For the federalists, this also presupposes the impact of a new actor on the process the European federal people. Clearly, the European federal people are not yet a real Staatsvolk, the citizens of a new state, but they do exist embryonically as an ideal fact and as a nascent political entity. Undeniably the moment for a conscious democratic choice can not be avoided. This point must be satisfactorily addressed in the debate about a strategy for the struggle for Europe, and in particular when discussing the argument that tends to identify the key moment in the process as a decision of a purely pro-cedural nature, tha

t is reform of art. 236 of the EEC Treaty (which sets down that each reform of the Treaty must be agreed unanimously by an intergovernmental conference and ratified by all the member states). Supporters of this interpretation argue that it is possible in practice, by introducing majority decision-making into the mechanism provided for in art. 236, to attribute the competence of the competences to an organ which, precisely since it could take decisions against the will of some of the community's member states, would not be identified with them. Moreover this change would be carried out without simultaneously transforming the Community into a real federal state and without determining beforehand which changes of the Treaties can be decided with the new procedure.

Such a proposal can be formulated in many different ways in an effort to increase its acceptability. In particular it is possible to imagine that majority-voting in the Council when modifying the Treaties be coupled with the opportunity for dissenting states to opt out of the obligations which an alteration would impose. Yet, regardless of the form it takes, the idea that Europe can be constructed by introducing the majority-voting principle into art. 236 is a non-starter, since the proposal in which this is expressed is destined to remain useless or even unachievable in practice. In reality only two possibilities exist. The first is that alterations of the Treaties by majority-voting are restricted to issues which do not involve institutional questions, and in particular do not lead to the renunciation of sovereignty. In this way there exists the contradiction of having rendered the proposed procedure incapable a priori of achieving the goal for which it was thought up. In any case, the significance of the

innovation would be minimal. The Rome Treaties have in fact been incessantly modified from the moment of their coming into force through the extensive use of art. 235 of the EEC Treaty (which exonerates from ratification by the national parliaments the attribution to Community organs of powers necessary to achieve one of the Community's goals but not provided for in the Treaty) and the interpretative work of the Court of Justice. This will continue whether the text of art. 236 is modified or not. Opting out, for its part, is already granted on a case-by-case basis (as happened for Great Britain and Denmark for some clauses in the Maastricht Treaty) without changing the mechanism of art. 236. Whether this happens by majority or unanimous decision does not alter the substance of the issue.

The second option is that a new drafting of art. 236 establishes that the transfer of control over the Treaty (the competence of competences) from the states to a body which is largely free of their influence be not restricted to secondary issues, but include institutional alterations, and particularly those which involve a renunciation of sovereignty. This is vital if the proposal is to have any significance. But if this is the object of the proposal, the Karlsruhe Court reminds us that, within the current legal framework based on the Treaties, this represents an inalienable prerogative of the member states. This prerogative must be exercised by the member states through the organs designated by their respective constitutions to carry out this task; they can not delegate it to institutions different from themselves, which would in this way be authorised to deprive them of their sovereignty by stealth, outside of all democratic control.

In reality the creation of the European federation is outside the logic of reforming the Treaties. It presupposes the creation of a new constitutional structure and a break with the existing confederal order. This can only be the result of a dramatic political confrontation which will occur in a moment of crisis, pressurising the forces involved to take sides and deeply involving citizens. No legal artifice will ever permit Europeans to avoid the moment of truth. In any case the Karlsruhe Court expressly declares that any such artifice would be incompatible with the German constitution, and that Germany would be unable to accept it. This is not to deny that the adoption of a federal constitution for the European Union would nevertheless have a procedural aspect, but this aspect would concern solely the ways and means in which the nascent European people will assume control over the process and provide the basis for legitimising the constitutional outcome. Nor is this to deny that some states may be excluded,

or exclude themselves, from this process. But this would represent an exclusion, or self-exclusion, which it would be wrong to interpret as an opting out, since this process would represent a dramatic break with legal continuity (possibly obscured by cosmetic clauses aimed at a pretence of agreement between the contracting parties after the event). Member states which remain outside the federal constitution will not avail themselves of a special regime in a particular sector, within a framework which would remain the same for all, but will be excluded from a completely new constitutional order founded on the exercise of popular will.

The Karlsruhe Court decision reminds us that in any process of creating a state, and particularly in this case of the passage from a confederation to a federation, there exists the crucial moment of the constituent decision. It reminds us in other words that Europe will not drop into our laps.