Micha Piotr Kaszubski Jean Monnet Chair of European Constitutional Law Faculty of Law and Administration University of d

European Union as a Federal State

A word of introduction
Contrary to what the majority of the constitutional law doctrine claims, the notions of the federation and the state are not wholly inseparable. Our world is changing so quickly that precise definitions from years long past cannot convey the full meaning of certain complex factual constructs. That is why I suggest tackling the problem in a different way. First we shall try to find certain federalist elements in the European institutional setting and then we shall examine whether that setting can be called a state sensu stricto.

In this aspect, the theory of the federal principle will be followed. Vernon Bogdanor referred in his essay 1 to Wheares magnum opus 2 , in which the author had described federalism as a legal principle and not a political one. The federal principle implies that legal sovereignty is shared between at least two layers of government, divided territorially, of which one has the dominant role, but the rights of other are guaranteed by the federal constitution. According to Wheare, three conditions must be fulfilled for a federal setting to exist. Firstly, there must be a written legal text, containing the principles of power-sharing, a constitution of some sort. Secondly, that text cannot be arbitrarily changed, i.e. by only one part to said power-sharing. Thirdly, an independent arbitration institution must exist, whose interpretation of the primary text is uniform and binding; this is usually the domain of supreme or constitutional courts. In the authors opinion, no single state fully exemplifies this principle; perhaps it is even impossible to fully define how a federal government should look like since the concept is constantly evolving. Wheare seems to believe that the federal principle serves a special purpose. This purpose, which was first expressed by Dicey 3 , is to preserve a tenuous relationship between distinct regions which out of peculiar sentiment for each other desire union without seeking

Bogdanor, Vernon, Federalism and the Nature of the European Union, Royal Institute of International Affairs 2003. 2 Wheare, Kenneth Clinton, Federal Government, Oxford University Press 2003. 3 Dicey, Albert Venn, Lectures Introductory to the Law of the Constitution, Liberty Fund 1982.

unity 4 . He writes that a federal state is a political contrivance intended to reconcile national unity and power with the maintenance of state rights.

It has to be emphasised that the federal state is only one of the manifestations of the federal principle. D. Elazar 5 and P. Pescatore 6 believe that since federalism is a legal philosophy, it can be adapted to all political contexts the municipal, national and supranational settings. They formulate two basic prerequisites for practical application of the federal principle: the quest for integration and a genuine respect for the autonomy and legitimate interests of the participant entities. In their opinion, Europe has been implementing the federal principle for years and is on the verge of becoming a true federation the meditations over its statal character or the lack thereof are of no real importance. A more modern outlook on this topic has been proposed in the famous Joschka Fischers speech 7 . He seems to support the above authors and suggest that there is a possibility of the Third Way being a federation without being a state. In this way, he proposes to overcome the stylised dichotomy of the Confederacy of European States (Staatenbund) and the European Federal State (Bundesstaat).

I suggest trying and matching an amalgam of the above concepts to the political reality of the European Union.

Federal characteristics of the European Union

A new order of international law The European legal order is enshrined in the Founding Treaties which define the institutions, delimit their powers and compel them to respect the rule of law. Those texts have been jointly drafted by the governments of the Member States and approved in referenda or other popular vote instruments by their respective peoples. Just as the different organs of government have to comply with the national constitutions, so the Member States are obliged

Ex pluribus unum principle. Elazar, Dan, Options, Problems and Possibilities in Light of the Current Situation, in Dan Elazar (ed.), Self Rule - Shared Rule, Turtledove Publishing 1979. 6 Pescatore, Pierre, Preface - Courts and Free Markets [in] T. Sandalow & E. Stein (eds.), Courts and Free Markets, Oxford Clarendon Press 1982, Vol.1, pp. ix-x. 7 The German Foreign Affairs Minister gave his speech at the Humboldt University in Berlin on 12 May 2000.
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to comply with the Treaty rules. The notion of the rule of law is in my opinion of utmost consequence, since it allows protecting all other fundamental values. Does it mean that the Treaties created a new international order, typical for a federation in the making? The power to legislate There are certain characteristics typical for a federal state in the European institutional setting. First, there is a central seat of legislative authority. This authority is held jointly by the Council composed of ministerial officials of the Member States and a directly elected European Parliament. The Council and the Parliament share the power of co-deciding legislative, administrative and budgetary acts, which are proposed by the Commission. This legislation, albeit in limited fields, can directly shape the legal position of individuals and Member States without the medium of national law. The Council might be considered an upper chamber, a Senate of sorts, where the Member State plenipotentiaries, few in number, try to rule by common accord since their vetoing power is dwindling with every successive Treaty qualified majority voting became the norm in many areas, meaning that the Unions decision no longer require the concurrence of all the Member States. The Parliament, on the other hand, can be deemed to be a chamber representing the different ideologies shared by peoples of Europe, whose members are not anymore delegates of the Member States and sit not according to nationality, but according to which of the transnational party group they belong to. Since this issue will be the focus of a separate presentation, I shall not dwell on it too long, but I would only like to point out that such constructs are very typical for federalist institutional settings, when one chamber represents the separate regions (States, Territories, Lnder, Gemeenschapen) of the federation, while the other represents the collective of their citizens. The raw legislative power of the Parliament is still minor compared to that of the Council, but the historically most important power of supervision, in this case the power to make the Commission step down, lies exclusively with the Parliament. It has always been the domain of the people to force the executive to quit, not the aristocracys. Another important responsibility, the budget, traditionally called the power of the purse, also lies with the Parliament. The Commission a General Secretariat unlike no other

Another factor that reinforces the inward pressure of the Community is the phenomenon of the Commission. Although it cannot be called the European government, even per analogiam, it nonetheless fulfils a role that has no counterpart with other international organisations. First, the Commission is, at least nominally, wholly independent from the Member States after its appointment and parliamentary approval. Second, the Commission enjoys a near-exclusive right of initiating legislation. Third, the European Commission is the driving force of the European integration process. The aim of the Commission is to secure the general European interest (providing we accept the existence thereof), protect the smaller Member States from majorisation and ensure lasting balance between the larger Member States. It is noteworthy that always when an amendment of the Treaties is considered, the status of the Commission is discussed. The federalists tried to strengthen the Commission by either subjecting it to parliamentary or even direct 8 (!) election, while devotees to the Europe of Nations belief sought to depreciate it by turning the Commission into a secretarial servant of the European Council. Unbreakable bonds There are also certain important economic consequences of the Union. First, the territory of the Union is a single and common market, ensuring the free movement of persons, goods, services, capital and payments. The Member States can restrict those four freedoms only in very specific cases, interpreted in a restrictive way. Modern federations, most notably the United States, have established multiple economic ties between the regions which cannot be broken without endangering the very existence of the regions concerned. Such a link exists in the Union in the form of the common market and the acquis pertaining to its implementation. What is even more important, most of the Union is bound by a monetary union and uses the single common currency, the euro. Surrendering the pecuniary sovereignty (considered since the time of the medieval and Renaissance scholars one of the most important attributes of power) 9 and accepting the leading role of the European Central Bank in shaping the monetary policy was surely a step of profound importance and a sign of increasing federalist tendencies in the common economic area of the Member States. Although usually establishment of the common currency is preceded by a formal act
See for example: Mancini, Federico G., Europe: The Case for Statehood, European Law Journal 1998, Vol. 4, pp. 29-42, also available at the Jean Monnet Program website; Habermas, Jrgen, The European Nation-State and the Pressures of Globalization, New Left Review 1999, No. 235, pp. 46-59.
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introducing a federal union, it cannot be denied that a monetary union can lead to an upside down formation of the European identity 10 . After all, no federation can exist without a single currency, since then it would be next to impossible to plan the expenditures and incomes. Even where regional currency can be used as legal tender, e.g. in the United Kingdom, the federal currency has to be accepted as well. It is not wholly true in the Union, though, since the states refusing to enter the EMU do not accept the euro, at least do not officially do so.

We cannot forget though, that economic ties by themselves cannot create true unity as the example of other close trade pacts or cartels (e.g. NAFTA or OPEC) clearly shows. The European Court of Justice has clearly stated that socio-economic integration is only one of the facets of the European desire for unity 11 . The Courts opinion seems to imply that the ultimate purpose of the Community is one of political integration. We, the Citizens of Europe, decide 12 The notion of European citizenship is one of the most obvious federal characteristics of the Union. However, this citizenship does not come from membership in the European nation (more on this later), since it is a corollary to national citizenship of the Member States. Yet, it does not serve a merely decorative function. Its main purpose is to safeguard equality of treatment between the nationals of different Member States, as regards their rights and duties in the common legal order, or perhaps better put, in the European federal setting. The concepts of democracy, equality and citizenship are inseparable, because a democratic institutional setting presupposes equality 13 (in law and in fact) between its citizens; consequently, the European citizenship is one of the ways to gradually lessen the democratic deficit in the Union 14 . Thus, tighter bonds between the nationals of various Member States can be forged and consequently, the animus foederationis is fostered, as the democratic

The core of the core of national sovereignty, as Lady Margaret Thatcher has once called it. As James Madison suggested once, federalise their wallets and their hearts and minds will follow. 11 ECJ Opinion 1/91, ECR 1991-10, p. 6102. 12 It was the subtitle of a European-wide discussion held on the Futurum webforum in the aftermath of the first draft Constitutional Treaty fiasco. 13 A democracy is not only a representative or parliamentary political regime, but also and above all, an association of equal citizens who are defined as such directly. La Torre, Massimo, Citizen, Constitution and the European Union [in] La Torre, Massimo (ed), European Citizenship: An Institutional Challenge, Kluwer Law International 1998. pp. 435-457. 14 Bellamy, Richard, The Constitution of Europe: Rights or Democracy? [in] Richard Bellamy, Vittorio Bufacchi and Dario Castiglione (eds.), Democracy and Constitutional Culture in the Union of Europe, Lothian Foundation Press 1995.
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equality of the Unions citizens is generally considered essential for the federations survival 15 But can this abstract idea be compared to a national citizenship? The European citizenship has been given attributes, mechanisms and instruments that manifest in a manner not mediated through national, State institutions 16 . According to J. Weiler, those are the attributes of true citizenship. Consequently, the possibility of direct contact with, influence in and protection from the European institutions independently of the Member States became the essence of this citizenship.

Having a different outlook on the matter, Erin Delaney believes that European citizenship can be called a nested citizenship 17 , assuming complex links between multiple loyalties. Unlike an established federal state, the European Union must constantly strive to bind its citizens even closer to itself, since in times of strife the citizens of the Member States are keen to follow their national allegiance, further endangering the stability of the European system 18 . Since the well-being of the Union depends on preventing falters in loyalty on the part of the Member States (and consequently of their nationals), fostering that loyalty on the federal level is the key to avoiding conflicts. Federal-level institutions must work at creating an environment which will encourage and strengthen the individual citizens trust and thus willingness to comply with the law 19 . The belief in the rule of law and the importance of trust-enhancing principles of Community law 20 are essential for the progressive development of the relationship between the Union and its individual citizen. Judicial protection on the European level There is also a specialised system of independent judicial protection for the Union citizens, who can invoke their directly effective rights 21 or demand compensation for losses

Kimminich, Der Bundesstaat [in] Handbuch des Staatrechts der Bundesrepublik Deutschland, C.F.Mller 1987, p. 1128, quoted in G. Federico Mancini, op.cit. 16 Weiler, Joseph H.H., European Citizenship Identity and Differentity [in] La Torre, Massimo, op. cit. 17 Delaney, Erin, Right to an Effective Remedy Judicial Protection and European Citizenship, Royal Institute of International Affairs 2003. 18 Choudry, Sujit, Citizenship and Federations: Some Preliminary Reflections [in] Kalypso Nicolaidis and Robert Howse (eds.), The Federal Vision: Legitimacy and Levels of Governance in the US and the EU, Oxford University Press 2001, pp. 377-402. 19 Follesdal, Andreas, Achieving Stability? Forms and Arenas of Institutional and National Balances in the Draft Constitutional Treaty, Federal Trust Constitutional Online Paper Series 2004, No. 6. 20 Compare Lenaerts, Koen, In the Union We Trust: Trust Enhancing Principles of Community Law, Common Market Law Review 2004, Vol. 41, pp. 317-343. 21 C-26/62 Van Gend en Loos, ECR 1963, p. 12.

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incurred because a Member State has violated Community law 22 . It belongs to the courts of the Member States, which became in this way provincial courts of the Community. Even though, until now, there is no Community judicial body serving as a court of higher instance for the Member State courts, we can consider the European Court of Justice to be the Constitutional Tribunal of the Union, whose interpretation of the Founding Treaties is exclusive and binding and which can arbitrate between the powers of the Union and the Member States. The Court of First Instance can be deemed to be the Supreme Administrative Court, accessible also for individuals seeking annulment of acts of the Community institutions. Although precedent is not officially recognised as a source of obligatory norms, the enormous influence and prestige attached to the Community judicature affect the state of European affairs and greatly influence the national courts. This method of shared competence is also typical for federations, since not all federal states envision a judicial recourse to federal courts.

The European system of judicial protection performs and additional task. Its role is to guarantee formal equality with respect to the federal-level government 23 even though there are certain variations allowed in the position of the citizen towards his or her respective national government 24 . The Union courts enforce formal equality by ensuring the primacy of Community law, monitoring its uniform and effective application in the whole commonmarket area and preventing the Member States from overstepping the boundaries of their procedural autonomy. Thus, an operative system of protecting the common European democratic values 25 has been established.

Moreover, the institutions of the Community oversee the activities of the Member States to a great extent. The Commission supervises the implementation of European law and may take steps to ensure that a Member State fulfils its obligations under the Treaties, including taking it to court and even having a fine imposed on it. This disciplinary and

Joined cases C-6/90 and C-9/90 Francovich and Bonifaci, ECR 1991-9, p. I-5237. Jackson, Vicky, Citizenship and Federalism [in] Thomas Alexander Aleinikoff and Douglas Klusmeyer (eds.), Citizenship Today: Global Perspectives and Practices, Carnegie Endowment for International Peace 2002, pp. 127-182. 24 Schuck, Peter, Citizenship in a Federal System, Yale Law School Program for Studies in Law, Economics and Public Policy Working Paper 2000, No. 225. 25 OKeeffe, David and Antonio Bavasso, Fundamental Rights and the European Citizen [in] Massimo La Torre, op.cit., pp. 251-265.
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harmonising activity of the Court has made the Court as in all federations the motor of a community or federal integration 26 . The status of Community law The most obvious federal elements can be perceived in the very status of Community law. This law has primacy over the law of the Member States 27 , including their constitutional norms 28 . Under certain conditions, either explicitly stated in the Treaties29 , or derived from the Community case-law, the citizens of the Union can claim rights stemming from the common provisions, even though their national law is silent on the topic or even actively contradicts those rights. In this aspect, it has to be reminded that the primacy of federal law over regional law is one of the most important aspects of the federalist setting. After all, if the regions were not bound by federal law, what reason would be in maintaining that federation? This way, one of Wheares criteria of federalism is fulfilled.

If the federation and the regions are to function without unending disputes for jurisdiction over a given issue, a clear delimitation of their respective powers must be determined. The European Union is no exception to this rule. The competence rests exclusively with the Member States by default, but there are also areas of shared competence and those of exclusive competence of the Community. The sectors of exclusive competence are few in number, but nonetheless quite important for the collective economy of the Member States, since they include the common commercial policy, common competition policy and common customs policy. The Community legislates exclusively within those fields, barring the Member States from adopting internal legislation or concluding international agreements. What is even more important, according to the established case-law of the Court, the Community enjoys implied powers, allowing it to exercise its public international law personality and negotiate international treaties in order to further the objectives assigned on the internal level 30 . Although the Community does not enjoy that what the German doctrine calls Kompetenz-Kompetenz (more on this later), it can, and quite often it does bend the

Croisat, Maurice and Jean Louis Quermonne, Leurope et le fdralisme. Contributions lmergence dun fdralisme intergouvernemental, Montchrestien 1999. 27 C-6/64 Costa v. ENEL, ECR 1964, p. 594. 28 C-11/70 Internationale Handelgesellschaft, ECR 1970, p. 1134, para. 3. 29 According to Article 249, direct effectiveness is typical for Community regulations. 30 C-22/70 ERTA/AETR, ECR 1971, p. 274.

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limits set on its legal activism. According to J. Weiler 31 , the allocation of powers in the Union is in most respect indistinguishable from that which you would find in advanced federal states, complete with the common problem in such states frequent disregard for this allocation.

All the above reasoning is aimed at proving the fact, that the European Unions institutional setting is clearly a federalist one, fulfilling almost all the criteria set by public international law. It is now prudent to consider the other element of the concept of the federal state. Since we established that the Union is federal, can we also find the elements typical for a state?

Can the European Union be considered a state?

When considering the structure of the Union, I shall refrain from discussing the decorative elements like the blue flag with 12 stars, the common anthem and the European Day. Although is cannot be denied that such symbols bring the European peoples closer together, their importance in the institutional systems is very limited. Moreover, the Union does not have a Head of State or a Head of Government, since the Council Presidency and the President of the European Commission do not perform this function. It can be disputed whether the European Council fulfils the criteria for being considered a collective Head of State, the same way as the Councils of State in the socialist countries operated. I think that such an assumption in the current state of affairs is unfounded.

The Court of Justice has more than once described the Founding Treaties as the basic Constitutional Charter 32 . Does this mean that the EU already has become a state in statu nascendi? After all, the notion of a Constitutional Charter implies some sort of constitutional norm, which until now has been only invoked in the context of a state. Various important judgments of the ECJ have clearly proven that the Founding Treaties go far beyond classic international treaties and contain certain elements typical for modern constitutions. Failings of the Union administration

Weiler, Joseph H. H., Federalism and Constitutionalism: Europes Sonderweg [in] Kalypso Nikolaidis and Robert Howse, op.cit. also available at the website http://www.jeanmonnetprogram.org/papers/00/001001.html 32 C-294/83 Les Verts, ECR 1986-4, p. 1365, para. 23. See also Opinion 1/76 of 28 April 1977, ECR 1977-I, p. 758 para. 12; Order in C-2/88 Zwartfeld, ECR 1990-7 I, p. 3372; C-134/91 Beate Weber, ECR 1993-I, p. 1093, para. 8.

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The Founding Treaties, although surely extensive in scope, lack some of the essential elements necessary for a complete system of sovereign state governance. First of all, the administrative apparatus of the Union, albeit denounced by euro-sceptics to be an allencompassing stifling force, is in reality underdeveloped and totally unprepared for the kind of effective governance that a modern state has to employ. I shall now briefly describe the proofs for this assertion. First of all, the Union does not have the legal means to implement its decision the fate of Community law lies in the hands of national administrations and courts. The Commission does not have the administrative and technical capability to monitor effectively the implementation process and has to resort to random checks and information of misappropriation. Second, the budget of the Community is only a fraction of the GDP of the Member States; moreover, the States are very reluctant to divert more of their national funds to the common purse. Even as the Union has its own resources and it does not depend on contributions from the participating members, it does not have the power to levy taxes and increase its revenue if needed there is no fiscal federalism, as T. Brzel 33 calls it. Third, the civil servants of the EC are relatively few and number about half of the municipal staff of a large European city like Paris or London. They are unable to function in the way the civil service of a state does. Fourth, the Union does not possess the coercive system that is required for state security. In every state there are dissident individuals that do not accept the status quo, resorting to crime and political subversion. Since ius puniendi (the power of the sword, as it is sometimes called) remains exclusively with the Member States, the EU has to depend on their police, judicial and penitentiary systems to protect its interests. I admit that the legislation in the Third Pillar is rapidly gaining momentum. The European Arrest Warrant has been adopted and implemented; consequently, the European Public Prosecutors office might be established. Even taking that into consideration, we have to remember that a state without armed forces can exist 34 , a state without police cannot 35 As Duchacek stated, one of the ten yardsticks of federal state government is that there is no federal government known to me where the central authority does not have this exclusive control, or where it lacks the
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Brzel, Tanja and Thomas Risse, Who is Afraid of a European Federation? How to Constitutionalise a MultiLevel Governance System, Jean Monnet Working Paper 7/00, available at www.jeanmonnetprogram.org 34 E.g. Iceland, Japan, various small insular countries. 35 There is an exception to this rule Switzerland has no federal police, only the regional (cantonal) police forces.

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coercive machinery which is the form in which most people in fact experience the power of the state. 36 This lack of direct imperium over an individuals fate might be the reason that the majority of the population in the majority of Member States retain a far stronger sense of common citizenship within the `nation-state' than with the EU as a whole. If this is so, it is hardly surprising since states have far greater power over people's lives than the EU. 37 No Kompetenz-Kompetenz The Community and the Union act on the principle of conferral. All their powers must be explicitly or implicitly bestowed by the Member States. It is contrary to the classic definition of a state, which has the self-sufficient source of political power, from which all specific political powers are derived 38 . Consequently, an independent state may legislate in all fields except for those that are specifically barred by its constitution 39 . The Community has no powers of its own. All its actions must be based on the specific provision in the Treaty 40 and follow the principles of proportionality and subsidiarity41 . As the jurisprudence of the ECJ shows, this requirement is no mere formality and many an act of the institutions has been declared null and void because it had lacked the proper legal basis. This problem corresponds with the clash between the hierarchy of norms and the hierarchy of real power in the European Union. Although the law of the Union is the supreme law of the land, executive authority remains with the Member States, who have to confer additional competence on the Union in order for it to exercise its law-making powers. The blurred executive power The present institutional setting of the Union, governed by the principle of institutional balance, does not really correspond to the classic principle of the separation of powers 42 . The complex interplay of checks and balances does not necessarily weaken the whole, but instead gives a different result the executive and the legislature are entwined and the borders

Duchacek, Ivo D., Comparative federalism: the territorial dimension of politics, University Press of America 1987. 37 Newman, Michael, Democracy, Sovereignty and the European Union, Hurst 1996, p. 174 et seq. 38 Gamer, Bryan A. (ed), Blacks Law Dictionary 8th Edition, West Group 2004. 39 E.g. the US Constitution forbids the United States to grant titles of nobility or issue ex post facto laws, the Japanese Constitution forbids the Empire to maintain armies of any kind or to declare war. 40 See, in this aspect, e.g. ECJ Opinions 1/94 (ECR 1994-11/12, p. I-5267) and 2/94 (ECR 1996-3, p. I-1788) curbing the extensive abuse of the Article 308 EC, which served the Council previously as the rubber clause for external EC powers. 41 As defined by the Article 5 EC, Protocol 30 to the EC Treaty and Article 9 of the Draft Treaty. 42 de Secondat, Charles (Baron de Montesquie), The Spirit of Laws, public domain edition at the website http://www.constitution.org/cm/sol.htm

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between them blur. Since all the Community institutions (even the Court of Justice, to a certain extent) participate in the legislative process and both the Council and the Commission perform the executive duties it would be very difficult to reorganise the UE in such a way as to ensure the separation of powers in the classic sense. Even if the Commission were furnished with the powers and responsibility that come with the concept of a states government it would not solve the present problems. Considering that there are three fields of executive power that are believed to develop significantly in the future (Economic and Monetary Union, Police and Judicial Cooperation in Criminal Matters and Foreign Security and Defence Policy) and taking notice of the fact that the Founding Treaties quite clearly show that the Commission should not be the main decision-making body in these areas it seems unreasonable to try and disturb the present setting in order to make it more similar to national institutions, as this would not reflect the political reality43 . No single European nation It is generally accepted that a state has to be populated by one or more nations (although there are also dissenting opinions 44 ). In the modern world, states are inhabited by citizens of different cultures and origins, speaking different mother-tongues and having multiple affinities. It is acceptable and unavoidable. Moreover, retaining of linguistic diversity could be the key to saving the state from secession, as it was the case with Belgium, Switzerland, India and the Republic of South Africa. Thus, contrary to what some researchers believe 45 , the lack of the European lingua franca does not really prevent from establishment of the European nation. However, the nationals of such multi-lingual states are still bound by common duties and desire a common goal. Can it be said that such a mindset exists in the case of the European citizens? The Treaty of Rome decided that the Community strives to create an ever closer union. However, the said union was to happen among the peoples of Europe to ensure the economic and social progress of their countries. The brave federal visions of the European Defence Community and the European Political Community had failed miserably. I think that the framers of the EEC Treaty did not want to follow those footsteps. It also seems reasonable to remind that while drafting the Treaty of Maastricht, the draft treaty presented to the
MacIntyre, DavidMaking Europe more democratic will also make it too powerful, The Independent, 19 March 1999. 44 J.H.H Weiler suggests comparing the following essays of Neil MacCormick: Sovereignty, Democracy & Subsidiarity [in] Richard Bellamy et al., op.cit.; Beyond the Sovereign State, Modern Law Review 1990, vol. 56, p. 1; The Maastricht Urteil: Sovereignty Now, European Law Journal 1995, vol. 1, p. 259.
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European Council in December 1991 opened with the words This Treaty marks a new stage in the process leading gradually to a union with a federal goal. The vocal British opposition led to the change into leading to create an ever closer union among the peoples of Europe where decisions are taken as closely as possible to the citizens. It was undisputed that at the time of Maastricht Europe was composed of peoples and not of a single people. Those sovereign peoples, or perhaps better put, those peoples assembled in their sovereign Member States did fulfil the federal principle (as demonstrated in the first part of this essay), but they did not create a federal state.

Even if a feeling of community exists now in the population of certain Member States (most notably the Netherlands and Luxembourg), maybe also in the shared consciousness of the European youth 46 , it is not yet universally accepted. It cannot be disputed that notwithstanding its cultural richness and diversity, its deep divisions and differences in collective mentality, the European population is clearly quite distinct from other continents, bound by common Judaeo-Christian roots and political traditions dating from Ancient Greece and Ancient Rome, while the European social model is the most important difference between Europe and America. However, such ties are not enough to speak of the single European nation that can legitimise the single European state; contrary to e.g. V. Bogdanors beliefs, the implication cannot be that the European Parliament does not represent different peoples brought together into a kind of confederal Diet, but rather that it represents a single people divided by ideologies 47 . Furthermore, the last year saw a sudden rise in power of the separatist and nationalist movements in the Member States, revival of extreme-right wing populism and burgeoning of identity politics and xenophobia. The ideas of Le Pen, Haider, Bossi, Kjargard, Hagen, de Winter and Giertych are disquieting monuments built upon the ruins of the old ideologies, as E. Hobsbawn would have called it 48 .

The other method of inspiring national or supranational loyalty, establishing a nation from the top down - the belief in the common institutions - also did not succeed as hoped. Neither the Commission nor the Council, nor the Community judicature had proven to be the factor that bolstered European loyalties. The feeling of disappointment is especially strong in
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Grimm, Dieter, op.cit. Wallace, William, op.cit. He writes: large numbers of young people across Europe treat their Continent, rather than their country, as the space within which they expect to move. 47 Bogdanor, V., op. cit.

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the case of the European courts. Direct judicial enforcement at the level of the Union has not been developed; in its place, the national legal systems carry the burden of providing legal protection for their citizens. Thus, even the European-level derived rights are protected by the Member States. That is why the citizens of the Member States do not feel a bond of trust, and consequently, a need for loyalty to and compliance with the European institutions. Erin Delaney strongly advocates the idea that an individuals direct links to a federal-level court which protects her rights can inspire federal feeling and encourage the growth of a federal level citizenship 49 . This opportunity in the Union has clearly been lost, as the clumsy and slow preliminary reference method seems to be the favoured way of protecting the individual rights stemming from the European legal order. Since direct access is the means of testing the meaningfulness and hence the integrative power of formal rights 50 , it is unavoidable that a prospective European national feels left alone and perhaps even deceived by the lack thereof 51 . In such a case, it is difficult to build a society of citizens which could substitute for the European nation. Europe might become much more relevant to its citizens if they were allowed to pursue their Community Law rights to the maximum extent 52 .

The conclusion is that the Union did not obtain its legitimacy from a European nation (which according to Blacks Law Dictionary is one of the attributes of state sovereignty 53 ). Although I would like to believe Jerome Vignon 54 , who claims that a new quality in the European mentality will emerge from the networking of multiple citizens inititatives and decentralised democratic movements and actions, I think that the time of the European identity (perhaps the first supranational identity?) time is not yet come. It may take years before the lay Europeans internalise the common principles and desire achieving the common supranational objectives.

Hobsbawm Eric, Age of Extremes. The Short Twentieth Century 1914-1991, Michael Joseph 1994, pp. 572574. 49 Delaney, Erin and Barani, Luca, The Promotion of Symmetrical Citizenship: A Federal Perspective, Journal of European Integration 2003, Vol. 25, No. 2, pp. 95-114. 50 Shaw, Jo, Citizenship of the Union: Towards Post-National Membership?, Harvard Jean Monnet Working Paper No. 06/97, available at the address http://www.jeanmonnetprogram.org/papers/97/97-06-.html 51 Shaw, Jo, Citizens Rights and Access to Law, [in] Reich and Micklitz (eds.), Public Interest Litigation in European Courts, Nomos Verlag 1996. 52 Szyszczak, Erika, Making Europe More Relevant to its Citizens: Effective Judicial Process, European Law Review 1996, Vol. 21, No. 5, pp. 351-364. 53 A state derives its whole authority from the governed.

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The unclear role of Parliament Some critics also doubt the legitimising role of the European Parliament. Since all states must possess a legitimate base for the exercise of their powers, the Parliament has often been invoked as the true representative of the will of the European peoples (since, as it will be demonstrated below, there is no single European people). Sadly, the theory does not match reality in this aspect. Although the Parliament is a directly democratic body, at least in theory, it is also more remote and difficult to understand for the citizens of the Union. As the last Polish European MP elections clearly have proven, even the MPs themselves do not fully comprehend their role in the process of government. It is even more obvious when considering that the European Parliamentary elections are only a sort of sophisticated domestic political poll. Both the voters and the prospective members do not focus on the European issues and do not try to build a supranational understanding in the fold of an European party 55 .

Moreover, the present function of the Parliament is different that the one of the domestic legislating body. The most obvious reason to believe so is that the Parliament cannot initiate binding legislation. It has been described as a critical body set over a distinct whole against, or alongside, the confederal government 56 ; the Parliament inspects facts and asks questions, but has little possibility to shape its conclusions into binding norms. The solution may look easy we could furnish the Parliament with manifold new powers and try to create the European nation the other way around (the new true seat of power would create centripetal force which would in turn lead to greater interest and selfidentification of the European voters). In my opinion, that hope is futile. The real game of thrones and the true clash of kings still happen on the national plane. There is no true political debate and power struggle on the European level 57 . Perhaps I am overly cynical, but might the reason be that it is not really worthy? After all, it is the national voter who decides on the Council members fate, not the European one, William Wallace seems to point out. In his opinion, the self-preserving interests of the political and bureaucratic lites in the fifteen states and, in a worthier vein, the awareness of the latter that, in the eyes of their constituencies, the national community remains the broadest focus for political life and group
Jerome Vignon (ed), Draft Memorandum to the Commission. Approaches to European Governance: For Democratic European Governance, Brussels 2001, COM 2001 (428). 55 This way, they become second-order elections. See Reif, Karlheinz (ed), Ten European Elections: Campaigns and Results of the 1979/1981 First Direct Elections to the European Parliament, Aldershot 1985. 56 Forsyth, Murray, Unions of States, Leicester University Press 1981, p. 186.
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identity 58 do not encourage them to empower the European Parliament. Consequently, since the Council does not answer to the Parliament, while the Commission does so only in theory 59 , the rare individual that followed its European hearts desire and took part in the elections, does not really have the feeling of influencing the European policy choices. On the other hand, many esteemed researchers believe that further empowering the Parliament may actually lead to efficiency problems 60 . A huge parliamentary assembly, divided into artificially-constructed European party fractions, does not really strike us as being overly effective in reaching important decisions quickly. Investing too much power in that voluminous structure might as well be the Unions downfall The Eurocracy phenomenon Furthermore, the Council does not really help to legitimise the Union. Although the Community regulates an important part of the Member States economic and social life, it does not usually perform its duties in a democratic way. It is true that the members of the Council possess proper legitimacy, but its works do not. As F. Mancini has been pointed out, the legislating activity confines itself to rubber-stamping, in most cases behind closed doors, drafts prepared by an ambassadorial college (COREPER) and, at a lower level by numberless 61 , faceless and unaccountable committees of senior national experts. It is also interesting to note, that although aware of this state of affairs, national governments of the Member States have done little to improve it 62 . Having the above reasoning in mind, there is no true source of the Unions legitimacy other than the Founding Treaties, concluded by the Member States in their public international law capacity. Although such legitimacy is not really essential for an economic union, it is indispensable for a modern state to function.

The reasoning above leads to the conclusion that the EU does not have a state-like institutional system, because it is not a fully sovereign entity. The powers of the Union are
Grimm, Dieter, Does Europe Need a Constitution?, European Law Journal 1995, vol. 3, p. 295 et seq. Wallace, William, Rescue or Retreat? The Nation State in Western Europe, 1945-1993 [in] Peter Gowan and Perry Anderson (eds.), The Question of Europe, Verso 1997, pp. 21-50. 59 Though, the case of the Barroso Commission seems to contradict such a statement. 60 Both Dieter Grimm and Joseph Weiler warned against simple faith in the European Parliament being the Deus ex machina solution to the legitimacy problem. 61 According to F. Hayes Renshaw and H. Wallace, The Council of Ministers, MacMillan 1997, p. 97: The exact dimensions of the base of the Council hierarchy is one of the EUs great unsolved mysteries. Hardly anyone knows how many working groups exist at any one time. 62 Lodge, Juliet, Transparency and Democratic Legitimacy, Journal of Common Market Studies 1994, vol. 32, p. 343/
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conferred upon it by the Member States and exercised on its citizens through the medium of their governments. No true foreign policy Any state, regardless of its form, almost always leaves exclusive external competence to the government. Even when the institutional system of a given federal state allows the constituent regions to negotiate and conclude international agreements or even establish its independent external relations, as it is the case with Belgium (whose communities and regions wield the ius tractatuum that is parallel to their internal competence). Every true state, however, no matter how decentralised, possesses the exclusive power to negotiate in the fields of external security and defence.

Without any doubt, regardless of the lofty ideals invoked by the framers of the Maastricht Treaty, there is no such thing as a common foreign policy of the Union, let alone the exclusive power of the Union to shape the fate of the Member States on the international scale. Everything in this regards remains with the Member States, who have to reach a unanimous settlement in the Council and are loath to make any concessions to the Union. The accession of the new Member States will only make this problem more obvious, as we have had the opportunity to observe during the Iraqi crisis, when the notion of Common Foreign and Security Policy could be only perceived as a form of black humour.

That being so, it is indisputable that, when it comes to security and defence, the most vulnerable elements of foreign policy, the Union has no say whatsoever. Since the Union is comprised both of states who belong to a tight military alliance and of states who pledged eternal neutrality, there is no prospect of any significant progress in this area and any exclusive powers conferred without endangering the uniformity of the Union. On the other hand, it cannot be disputed that the Union or the Community can take certain steps, which are considered unfriendly and disruptive in public international law, for example imposing a trade embargo or other sanctions on a third state. These powers are not even remotely comparable with the sovereign states ius pace et bellum, though.

To sum up, the European Union has no significant common foreign policy that would prevail over the particular interests expressed by its Member States and no common external security and defence policy worthy of its name. Since there is no state devoid of those 17

attributes, the failures of the Second Pillar show clearly that the European state does not exist. The Union might well be a federation, but a federation of a very peculiar kind - a commercial federation. Moreover, as the experience of other federations shows, the division between politics and economy should be only transitory, either leading to the formation of common foreign policy in the European federalist framework, or getting even deeper, consequently leading to The Second Fracture 63 of the evolving political community. No catalogue of human rights Lastly, the modern concept of a state based on the rule of law clearly presupposes that there exists an extensive catalogue of human and citizen rights which are recognised and protected by that state. The judicial construct of the fundamental rights of the European Union, stemming from the constitutional traditions of the Member States, can only be considered a provisional solution, since the list of fundamental rights and their legal effect varies greatly from State to State. Even the adoption of the Charter of Fundamental Rights and the extensive jurisprudence of the ECJ did not change that situation too much. The Charter was proclaimed as a solemn declaration, binding only the Community institutions and not the Member States, while the judicial activity of the Court clearly confines its jurisdiction over Member State transgressions to matters of Community law execution. The inclusion of the Charter in the Draft Treaty Establishing the Constitution for Europe cannot be considered conclusive, since the character of that inclusion is still under dispute. To sum up, the Union cannot be deemed an entity able to provide its citizens with rights that cannot be better protected at the national level. Thus, we cannot but assume that the Union does not fulfil one of the most important state functions protecting own citizens from abuse. Moreover, the Member States did not want to substantially expand the catalogue of the rights of the Union citizens. Although economic freedom is now a universally accepted axiom, the technological and social progress should have resulted in bestowing additional rights, mostly of a political and public nature. That did not happen, instead the Member States have insisted on maintaining a stingy catalogue of rights no more than mirrors and beads

Sidjansky, Dusan, The Federal Future of Europe, From the European Community to the European Union, The University of Michigan Press 2000.

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for the natives 64 , leading some members of the European law doctrine to believe that the Citizenship Clause in the TEU is little more than a cynical exercise in public relations 65 . On the other hand, the curtness of the catalogue may prove the ideas of certain authors, according to which the Member States were genuinely afraid that a shift of social loyalty from the national to the European level may occur if the rights obtained are tempting and important enough 66 .

Other elements of the state definition (territory and population) are unquestionable. It is clear that the European Union has a territory (composed jointly of the territory of the Member States with certain derogations) and a population (all the citizens of the Member States are ex lege and inseparably citizens of the European Union, though this citizenship only complements and does not replace national citizenship67 ). The European Union is not a state All the above-mentioned factors demonstrate that a European State (regardless of the formula chosen) does not yet exist. Although it cannot be disputed that the scope of limitations on Member States sovereignty and freedom to act has no equal in the case of other international organisations, it is not enough to prove that the EU has become a state. The European Union can at most be considered a Community of States (a sui generis entity), whose double legitimacy is derived both from the nations of the Member States and the autonomous national will of the Member States themselves 68 . For that reason the Union does not seek to dismantle the current national framework in order to create a European nation-state 69 .

F. Mancini, op.cit., commenting on Hans Ulrich Jessurun dOliveira, Union Citizenship: Pie in the Sky? [in] Allan Rosas and Esko Antola (eds.) A Citizens Europe in Search of a New Integration, Sage 1995, p. 64. Compare also Siofra OLeary, The Evolving Concept of Community Citizenship, Kluwer Law International 1996. 65 Weiler, J.H.H. et al., Certain Rectangular Problems of European Integration [in] Political Series vol. 1, European Parliament General Directorate for Research 1996, p. 20. 66 F. Mancini, op.cit., suggests comparing the analyses by Grainne de Brca, The Quest for Legitimacy in the European Union, Oxford Journal of Legal Studies 1996, vol. 16, p. 359 with Koen Lenaerts et al., The Question of Democratic Representation [in] Bruno de Witte (ed), Reforming the Treaty on European Union: the Legal Debate, Kluwer Law International 1996, p. 177. 67 See Article 17 1 EC and Article 8 of the Draft Treaty. 68 P. de Schoutheete in Une Europe claimed that the democratic legitimacy is divided between the European Parliament and the national parliaments of the Member States. The EP does in a certain way control, or rather oversee, the Council and the Commission through the means of parliamentary debates, commissions of enquiry and question time. The national parliaments influence their respective governments in the way prescribed by their national constitutions. 69 See Article 6 3 EU and Article 5 of the Draft Treaty.

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if it is not a state, then what it is? In the light of the two issues discussed above, it is appropriate to ponder what the European Union actually is. Can it be a mere international organisation? Some believe that the answer must be no and put forward certain arguments that support that thesis. Paradoxically, the issue of the democratic deficit and the lack of institutional transparency in the European Union is the key to its supranational and not international character. International organisations are non-democratic in the classic sense, since they operate by unanimity 70 or at the very least by common accord, or else their norms are nonbinding on the addressees. The United Nations, for example, have never been seriously accused of undemocratic ways or secretive manipulations. The Security Council has been variously described as overpowered, obsolete, badly composed and inefficient, but there were never complaints about the lack of democracy (which in the case of the Security Council is obvious at the first sight) or demands as for introducing the principle of the separation of powers in the UN institutional setting 71 . The principle of the UNs decision making process is diplomacy, and not democracy, while, as I. Pernice claims the European Union, in its very substance, is not only an organisation of states, but, above all, an organisation of citizens although it has the appearance, at first sight, of an organisation between states 72 . This author seems to favor the approach of D. Thym and W. Eijsbouts73 , who believe that the European Union is a Constitutional Federation. As Judge Mancini has written, summarising the various authors, insisting on defining [the European C o m m u n i t y] as an international organisation and describing all that does not fit well with that definition as frills and rhetorics 74 is much like trying to push the toothpaste back into the tube 75 . Those, who indulge in such an exercise are either die-hard acolytes of the neo-realist school in political science, eager to prove that any further progress

Mancini, Federico G. and D.T. Keeling, Democracy and the European Court of Justice, Modern Law Review 1994, vol. 57, p. 175 et seq., quoted in F.G. Mancini, op.cit. 71 Leben, Charles, A Federation of Nation States or a Federal State?, Jean Monnet Working Paper no. 7/00, available at www.jeanmonnetprogram.org 72 Pernice, Ingolf, Multilevel Constitutionalism in the European Union, European Law Review 2002, vol. 27, p. 518. 73 Thym, Daniel, European Constitutional Theory and the Post-Nice Process [in] Mads Andenas and John Usher (eds.), The Treaty of Nice and Beyond, Enlargement and Constitutional Reform, Hart 2003, pp. 147-180; and also W.T.Eijsbouts, Classical and baroque constitutionalism in the face of change (Review essay), Common Market Law Review 2000, vol. 37, p. 213; both quoted in Ingolf Pernice, op.cit. 74 Pinder, John, European Community. The Building of a Union, Oxford University Press 1991. 75 Weiler, J.H.H. and Ulrich R. Haltern, The Autonomy of the Community Legal Order Through the Looking Glass, Harvard International Law Journal 1996, vol. 37, p. 423.

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on the part of the Union will falter in the face of unsurmountable barriers 76 or professors of international law anxious to maintain their hold on a luscious province increasingly coveted by constitutional lawyers 77 . At the same time, F. Mancini admits that the intergovernmentality of the second pillar, without any judicial or popular control could prove that the U n i o n can still fulfil the criteria of an international organisation 78 .

Given the above, I would strongly oppose M. Croisat and J.-L. Quermonnes view that the European Union is an international organisation because of its intergovernmental, limited federalism 79 . The intergovernmental elements and the resulting unanimity argument are important, but not decisive. In my opinion, the notions of federal and intergovernmental are very different in scope if not opposite in meaning. Since we established the federal character of the Union, we cannot contradict the facts by stating that it is only an intergovernmental forum and in this way contaminate the system by treating an essential element as the dominant dimension. Another concept, that of inverted federalism, has been advocated inter alia by D. Sidjansky. He maintains that the European Union practices the sectoral approach to federalism. This approach has been forced by the First Fracture, the fall of the European Political Community idea 80 . Since then, the Member States for a number of reasons do not wish to engage in a global partnership, instead preferring to surrender their sovereignity part by part. This process has been started with the strategic commodities of coal and steel and has been continued since the days of the European Coal and Steel Community. In D. Sidjanskys opinion, the inverted federation will be complete once the Union overtakes all the important functions. At present, the Union is a consensual democracy, which according to the author is the search for middle ground by means of negotiation and compromise. Participation in
76

F. Mancini refers to Harold Hongju Koh, Why Do Nations Obey International Law, Yale Law Journal 1997, vol. 106, p. 2615, who devoted a highly sophisticated analysis to the origins, the development and the recent decline of this group of scholars. 77 F. Mancini believes that perfect examples of this attitude can be found in Alain Pellet, Les fondements juridiques internationaux du droit communautaire [in] Academy of European Law, Collected Courses of the Academy of European Law, Kluwer Law International 1997, p. 193 et seq. or Theodore Schilling, The Autonomy of the Community Legal Order: An Analysis of Possible Foundations, Harvard International Law Journal 1996, vol. 37, p. 389. 78 F. Mancini suggests comparing Antonio La Pergola, L'Unione europea tra il mercato comune e un moderno tipo di confederazione. Osservazioni di un costituzionalista, Rivista trimestrale di diritto e procedura civile 1993, vol. 5, p.19. 79 Croisat, M. and J. L. Quermonne, op.cit. 80 For more details regarding the institutional setting of the EPC, see F. Dehousses Constitutional Commission, Projet de Trait portant statut de la communaut europenne, Paris 1953.

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decisions, adherence to common solutions and the importance of minority opinions make the burden of qualified majority voting lighter to be borne. Arbitration and long consultation with the interested parties allows the legislative process to be relatively painless and facilitates the national implementation of Community legislation. The proponents of the 1996 Luxembourg Compromise would have never suspected that it would echo in the future federal decisionmaking process.

I think that combining the federal elements with the lack of state aspects and the supranational character of the Community leads to assumption that the Union is a constitutional order of states or a union of Free States. This union functions mainly in the commercial dimension, having converted external trade relations into internal trade relations on the common market 81 . What is even more important, such trade relations basically do not interfere with the domestic political and institutional setting of the Member States, be they monarchies, presidential or cabinet republics; moreover, membership of an economic union is perfectly compatible with membership of other bodies 82 . Observation of the political reality in the Union seems to prove the above idea. The Member States belong to different supranational organisations, like the WTO, the UN and the NATO. There are even smaller groups of closely tied states within the Union like the Nordic Union and the Benelux. The prospective State of European affairs There might be a way to create a wholly new basis for the future Union. If the Treaty is adopted directly by a majority of the European voters and at the same time by a majority of voters in each Member State, it will be a big step forward, as the Union would then derive its authority directly from its citizens and no longer from the Member States. This collective will of the wilful collective (as Karl Marx would have put it) may be the spiritus movens of the future European Federal State. Another possibility is to conclude a federal pact, as Olivier Beaud 83 (and Hendrik Brugmans 84 many years before him) seem to propose. This pact assumes that establishment of
In a way similar to the German Zollverein in the 19th Century. See more for this aspect List, Friedrich, The National System of Political Economy, Ch. 36, Longmans, Green and Co. 1909, public domain edition at the website http://www.econlib.org/library/YPDBooks/List/lstNPEtoc.html 82 Neuchtel, one of the cantons in the similarly set Swiss Confederation of 1815, was a monarchy (other cantons were republics); it belonged both to the Eidgenossenschaft and to the German Bund. 83 Beaud, Olivier, Fdralisme et souverainit. Notes pour une thorie constitutionnelle de la Federation, Revue du Droit Public 1998, vol. 1, pp.99-101.
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the federation will not necessarily mean abandoning the current nation-state structure. The Member States would not be absorbed in the future Federation, but will continue to function alongside it. The Federation would not wholly succeed the Member States. The true pouvoir constituant, wielded by the nationals of the Member States, would also be the driving force of the Federation.

Sadly, I very much doubt it. Such a tremendous change in the perception of the Union would be impossible for most politicians; moreover, the Member States consider themselves masters of the Treaties and intend to remain in that capacity 85 , though some would insist that in modern democracies States are not masters but instruments of the self-organisation and self-ruling of the society 86 . What is even more important, there are some nations of the Union which would accept the creation of and accession to a new supranational state-like entity only with great reluctance, if ever. It is out of the question to even consider a majority vote to establish the Federation 87 . So what can be done with the results of the British, Danish, Swedish and Polish vote? The citizens of those states will almost surely reject the Treaty in popular vote. Does that mean that those states have to withdraw or be excluded from the Union? Such problems of monumental importance lead to the conclusion that there is presently no clear vision of the European future Apart from a few euro-centric Member States, the common European mentality is not strong enough to warrant transforming the Union into a true federal state. The divisions between the Member States might run so deep that the creation of a federal state is unlikely for decades to come. It is wholly possible that the European Union will never become a state, since even its greatest proponents are wary of disrupting the current balance of power 88 .

Brugmans, Hendrik and Pierre Dusclos, Le fdralisme contemporain; critres, institutions, perspectives, A. W. Sijthoff 1963, p. 41. 85 See e.g. the German Bundesverfassungsgerichts Brunner judgment of 12 October 1993. Similarly the Danish Hjesteret in the Carlsen judgment of 6 April 1998. 86 Pernice, Ingolf, op.cit. who also suggests comparing the critical remarks to the Maastricht judgment in U. Everling, Sind die Mitgliedstaaten der Europischen Gemeinschaft noch Herren der Vertrge? [in] Festschrift fr H.Mosler, p. 173. 87 Even though the second Swiss Confederation was established that way most of the so-called Sonderbund (rebel alliance) cantons were outvoted and forced to join the new state. 88 Joschka Fischer said: 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.

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Then the Community of States, a provisional confederal institutional setting, will have to be an enduring solution, a unique combination of the intergovernmental and the supranational, as Tony Blair said. Other selected sources: Basta, Lidija R., The Nation-State Federalism and European Integration Two Different Strategies of Diversities Accomodation? [in] Antonio Jyrnki (ed.), National Constitutions in the Era of Integration, Kluwer Law International 1999, pp. 151-162; Bellamy, Richard and Dario Castiglione, Building the Union: The Nature of Sovereignty in the Political Architecture of Europe [in] Neil MacCormick (ed.), Constructing Legal Systems: European Union in Legal Theory, Kluwer Law International 1997, pp. 91-115; Bermann, George A., Harmonisation and Regulatory Federalism [in] Ingolf Pernice (ed.), Harmonization of Legislation in Federal Systems, Nomoc Verlagsgesellschaft 1996, pp. 37-46; Blokker, Niels M. and Ton Heukels, The European Union: Historical Origins and Institutional Challenges [in] T.Heukels, N.M.Blokker, Marcel Brus (eds.), The European Union After Amsterdam. A Legal Analysis, Kluwer Law International 1998, pp. 9-50; Bothe, Michael, Constitutional, Federal and Subsidiarity Issues [in] Ingolf Pernice, op.cit., pp. 57-60; Briffault, Richard, Paradoxes of Federalism [in] Ingolf Pernice, op.cit., pp. 47-56; Brownlie, Ian, Principles of Public International Law 6th Edition, Oxford University Press 2003; Dashwood, Alan A., The Limits of European Community Powers, European Law Review 1996, p. 113; Davis, Rufus, Theory and Reality: Federal Ideas in Australia, England and Europe, University of Queensland Press 1995; Grimm, Dieter, Does Europe need a Constitution, European Law Journal 1995, vol. 3, p. 296; Hartley, Trevor C., Constitutional Problems of the European Union, Hart 1999; Holzinger, Katharina and Christoph Knill, A Constitution for the European Federation: A Steady Development of Existing Achievements, Harvard Jean Monnet Working Paper 7/00, www.jeanmonnetprogram.org ; 24

Kokott, Juliane, Federal States in Federal Europe: The German Lnder and Problems of European Integration [in] Antonio Jyrnki, op.cit., pp. 175-199; Konopacki, Stanisaw, Dylematy federalizmu europejskiego, Kwartalnik Prawa Europejskiego 1998, vol. 4, Centrum Europejskie Uniwersytetu Warszawskiego; Kramer, Larry, Understanding Federalism [in] Antonio Jyrnki, op.cit., pp. 127150; Lehmann, William, Liis Jaansalu and Sergiusz Waplak, Attribution of Powers and Dispute Resolution in Selected Federal Systems, European Parliament DirectorateGeneral for Research Working Paper 2002; Lepsius, Rainer M., The European Union as a Sovereignty Association of a Special Nature, Harvard Jean Monnet Working Paper 7/00, www.jeanmonnetprogram.org ; MacCormick, Neil, Democracy, Subsidiarity and Citizenship in the European Commonwealth [in] Neil MacCormick, op.cit., pp. 1-26; Nicolaidis, Kalypso and Justine Lacroix, Order and Justice Beyond the Nation State: Europes Competing Paradigms [in] Rosemary Foot, John Gaddis and Andrew Hurrell (eds.), Order and Justice in International Relations, Oxford University Press 2003, pp. 125-154; Pernice, Ingolf, Harmonization of Legislation in Federal Systems: Constitutional, Federal and Subsidiarity Issues [in] Ingolf Pernice, op.cit., pp. 9-36; Piris, Jean Claude, Does the European Union have a Constitution? Does it need one?, Harvard Jean Monnet Working Paper 5/00, www.jeanmonnetprogram.org ; de Schoutheete, Philip, Une Europe pour tous, Editions Odile Jacob, Paris 1997; Schwartz, Bernard, From Confederation to Nation, 1835-77, Johns Hopkins University Press 1973; Soar, Camilla, Governing Together in the New Europe: Division of Competences and Federal Models, Royal Institute of International Affairs 2003; Wallace, Willam, Less than a Federation, More than a Regime: the Community as a Political System [in] Helen Wallace, W. Wallace and Carole Webb (eds.), Policy Making in the European Community, John Wiley & Sons 1983, pp. 403-436; Weiler, Joseph H.H., Europe: The Case Against the Case for Statehood, www.jeanmonnetprogram.org ; Weiler, Joseph H.H., Parlement europen, intgration europenne, dmocratie et lgitimit, Le Parlement europen, V. Louis and M. Waelbroek (eds.), Brussels, 1988, p. 340 25

de Witte, Bruno, The Pillar Structure and the Nature of the European Union: Greek Temple or French Gothic Cathedral? [in] T.Heukels, N.M.Blokkers and M.Brus, op.cit., pp. 51-68;

The Annual Report on the State of the European Union, www.isae.it

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