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Defining the EU: A Multi-Dimensional Approach Michelle Cini and Nieves Borragn define a federation as a way of organizing a political system which involves the constitutionally-defined sharing of functions between a federal centre and the states. A federation will usually have bicameral parliament, a constitutional court, and a Constitution.1 Those same authors define a confederation as a political model which involves a loose grouping of states, characterized by the fact that the centre has fewer powers than the states or regions.2 When we compare the two we see that the EU does have elements of both systems. This makes defining the European Union a daunting task. The first goal of this paper is to derive both a political and functional definition of the EU. The second goal will be to couple that analysis with analysis of the EUs history in order to project what shape the EU will take in the future. I would argue that the constitutionally derived corporatist elements that exist within the EUs bicameral legislative structure along with the Commissions ability to influence and ultimately enforce the resulting policies through the ECJ indicate very clearly that the European Union is first and foremost a unified regulatory institution with many federalist elements. Some scholars would contend that the EU is a loosely tied, intergovernmental confederacy because the states have more powers than the central government but that doesnt immediately delegitimize the claim that the EU looks and functions more like a federation than a confederation. I contend that the true power of the member states is at best equally limited when compared to the central powers within the EU. It is true that the national government of the member states do have more powers in the sense that they have more say in more policy areas. This is particularly
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Michelle Cini and Nieves Prez-Solzano Borragn, European Union Politics, 3rd ed., (New York : Oxford University Press, 2010), 444. 2 Michelle Cini and Nieves Prez-Solzano Borragn, European Union Politics, 3rd ed., (New York : Oxford University Press, 2010), 440.

exemplified with the day to day operations within in their respective domestic spheres. However, within the policy areas that fall under the purview of the EUs supranational institutions as a whole, it is undeniable that the central regulatory bodies have a great deal of enforcement power over the states. Under the codecision method that is contingent on the separation of powers and the Community method that is contingent on the level of activism seen by the Commission when states agree to a policy it is difficult for them to escape their commitments. In other words, the fact that it can sometimes be like herding cats to try to implement new policies the ability of the EU to enforce those policies is very strong. Despite the perception of Brussels being a weak central bureaucracy, member states are interconnected by so many different institutions and treaties that even though the EU may not functionally be a federation its regulatory capabilities and structure could make it function as a de facto federation. This is perhaps best exemplified by the fact that even though the member states can create gridlock and water down reforms to a point where they are granted opt outs and conditional agreements this process still lead to the Treaty of Lisbon which despite criticisms for being too moderate is actually fairly ground-breaking considering that it includes the Charter of Fundamental Rights, the power of citizens initiative, and new legislative policies. The biggest legislative change Lisbon brings is the establishment of an EU Constitution that does include legislative reforms that establish an official separation of powers between EU institutions. As suggested earlier, the biggest federal elements within the EU are the regulatory power it derives from the Commission and the function the ECJ plays in that process. With the exception of some directives and some policies enacted through some of the softer new modes of governance the Commission has enormous executive power. This power is largely derived

through the ECJ. Additionally the Commission as an enormous amount of legislative power and is the driving force behind the codecision and Community methods of policy making. If an interest group or another institution cries foul to the Commission then the Commission can exercise its executive power by dragging the states to the European Court of Justice. The ECJ then issues a binding ruling that member states are expected to respect. This is referred to as an infringement proceeding which is a type of direct action. 3 The mere fact that interest groups can and often do rely on the regulatory authority of the EU is great evidence that the EU functions in a semi-federal capacity. This is because of the efficacy of the EUs executive branch and the interest groups that serve as whistle blowers when states fail to live up to the EUs binding Community acts.4 If the Commissions executive and legislative authority proved to be inefficacious, then it would stand to reason that interest groups would devote their limited resources to lobbying their respective member states government. In addition to the obvious implications that can be drawn from the willingness of interest groups to take their concerns to Brussels, there is another prime example of the efficacy of the Commission as an executive body. Borragn and Cini cite the 1991 infringement proceedings against Greece as an example of the Commission and ECJs ability to regulate and enforce Community obligations: In 1991 the Commission initiated infringement proceedings [a form of direct action taken by the Commission when a state has failed to implement policies that are in concert with Community laws] against Greece, alleging the failure of the latter to comply with

Michelle Cini and Nieves Prez-Solzano Borragn, European Union Politics, 3rd ed., (New York : Oxford University Press, 2010), 181. 4 Michelle Cini and Nieves Prez-Solzano Borragn, European Union Politics, 3rd ed., (New York : Oxford University Press, 2010), 214.

Community law on the disposal of toxic waste in Crete, where a rubbish tip [or landfill] was situated at the mouth of the river Kouroupitos. The tip operated in breach of Community law, which required that toxic and dangerous waste be disposed of without endangering human health and without harming the environment. The Greek government cited popular opposition to its plans to create new waste sites in the area for its failure to close the tip. The Court rejected the argument and in 1992 issued a judgment declaring that Greece was in breach of its Community obligations. Five years later, after the Greek government fails to comply with the 1992 judgment, the Commission once again brought the case to the ECJ. The ECJ, with its 200 decision imposed a payment of 20,000 for each day of delay in implementing the measures necessary to comply with the 1992 judgment. The new ruling proved more effective and along with pressure exercised by other Community institutions the closure of the tip was secured.5 In our discussion of the federalist elements that can be seen from the functionality of the judicial and executive branches of the European Union it stands to reason that the next logical steps are to incorporate the role that the aforementioned bicameral legislature plays in contributing to the framework of a federation. This also requires detailed analysis of the constitutional elements Lisbon established and the overall policy making process. As mentioned before the roles of the ECJ and Commission vary depending on the policy area being discussed and on the specific method of policy making is being utilized.

Michelle Cini and Nieves Prez-Solzano Borragn, European Union Politics, 3rd ed., (New York : Oxford University Press, 2010), 181.

The role of the legislature and executive tends to be mixed and diversified depending on the particular policy area in question.6 With the movement toward complementing or substituting decision making methods from the Community method to codecision to new modes of governance that feature the Open Method of Coordination, we have a seen further dispersion of powers between the different EU institutions and the member states.7 The EU started by primarily utilizing the Community method that is prone to producing hard policies where the Commission tends to monopolize power.8 There has been a consistent trend toward strengthening the power of the Council through the extension of QMV and the double majority.9 Additionally the Council has an increased capacity to block legislation must adopt the act before it can go to parliament, then they get a second reading and the Council and the EP must both approve of the joint text before an act can be adopted.10 The EP has also grown in strength as the EP accepts a common position, rejects it, or proposes new amendments. If an act loses support in the EP, it cannot be adopted. The EPs power of second reading means even more emphasis has been placed on maintaining and improving the federalist structure of the EU. The reality is that even with the different policy areas being legislated through different means, the most crucial policies will still be handled largely through the Community method and in the future will expand to a limited extent to more co-decision processes.11 Even under Lisbon

Michelle Cini and Nieves Prez-Solzano Borragn, European Union Politics, 3rd ed., (New York : Oxford University Press, 2010), 214. 7 Michelle Cini and Nieves Prez-Solzano Borragn, European Union Politics, 3rd ed., (New York : Oxford University Press, 2010), 212-222. 8 Michelle Cini and Nieves Prez-Solzano Borragn, European Union Politics, 3rd ed., (New York : Oxford University Press, 2010), 213. 9 Michelle Cini and Nieves Prez-Solzano Borragn, European Union Politics, 3rd ed., (New York : Oxford University Press, 2010), 212-223. 10 Michelle Cini and Nieves Prez-Solzano Borragn, European Union Politics, 3rd ed., (New York : Oxford University Press, 2010), 212-223. 11 Michelle Cini and Nieves Prez-Solzano Borragn, European Union Politics, 3rd ed., (New York : Oxford University Press, 2010), 222

employment, social policy, cohesion policy, CAP, competition policy, immigration policy and macro-economic policy will still be driven mostly by the Commission, EP, and Council having more say more often and the role of the states actually being reduced in macro-economic policy.12 It is predicted that the Lisbon Treaty will alter the role the balance between the EU institutions in some policy areas, with a trend towards extending the use of QMV in the Council, whilst also adding to the range of policies subject to codecision. This is likely to increase the role and influence of the EP and standardize the formal balance of power between the Council, Commission, and EP, whilst also making it harder for national governments to use their veto.13 It would seem to me that in a system that was functionally a confederation would let such a reform pass. If anything this is an indication that there is widespread interest in improving the effectiveness of the policy-making in the various policy areas. Expanding on my analysis of the Lisbon Treaty will be my final piece of evidence to support my claim that the structure of the EU is indeed that of a federation. The Lisbon Treaty says a lot about the nature of the EU. In addition to the legislative reforms listed above it established the Charter of Fundamental Rights. The Lisbon Treaty also includes laid a road map for how to implement the tenants of CFSP and ESDP. Lisbon also serves as a springboard for the discussion of the second aim of this paper. At this point I would consider it hard for someone analyzing the EU from a purely structural perspective to argue that the EUs organizational structure does not closely mirror Cini and Borragns definition of a federation. If one wished to join me in making the leap that the

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Michelle Cini and Nieves Prez-Solzano Borragn, European Union Politics, 3rd ed., (New York : Oxford University Press, 2010), 222. 13 Michelle Cini and Nieves Prez-Solzano Borragn, European Union Politics, 3rd ed., (New York : Oxford University Press, 2010), 223.

EU could considered functional level to be a de facto federation, one must accept that the close ties between member states and the central bureaucratic institutions are chiefly the result of voluntary unification over social and economic issues rather than strictly political ones. The EU could be said to be a political institution where the regulatory capacity that results from the EUs political structure is merely a consequence rather than the source of an economically and socially integrated community. This idea fits nicely with Hixs writing that the European Union is a quasi-federal regulatory state (Bulmer 1994; Majone 1993a; McGowan and Wallace 1996). 14 There are some reasons to wonder to what extent the EU is a federation at the functional level. I would posit that the substantial amount of input that interest groups have through the various channels of EU policy-making indicate both that there is faith among lobbying groups that Brussels is strong and that the institutions within the EU are very interested and receptive in hearing the concerns of the entire EU. Integration has been the result of necessity, convention and most importantly, a common desire for an integrated Europe.15 The fact that the EU has enlarged as rapidly as it has speaks volumes. Cini and Borragn argue that: The motive for states joining [the EC] is largely associated with changing political and economic circumstances The Southern European states were looking to enhance their economic development and consolidate their democracies after the fall of fascism. The 1995 enlargement was largely associated with Sweden, Finland, and Austrias attraction to a growing and dynamic Single Market and the commitment that membership would not compromise their neutrality. As for the European Union, its motives for accepting

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Debates on Euopean Integration , ed. Mette Eilstrup-Sangiovanni, and ed., (Hampshire: Palgrave Macmillan), 346. 15 Michelle Cini and Nieves Prez-Solzano Borragn, European Union Politics, 3rd ed., (New York : Oxford University Press, 2010), 419.

new members have varied over time, but at its root has been the wish to maintain and spread liberal democratic ideals and the market economy principle across the mainland of EuropeSome members have also been keen to see the EU grow bigger and stronger as a consequence of the enlargement has been supported by the current members as a means of deepening the EUs political and economic integration.16 The argument listed above indicates an overall trend of continuous political integration and undoubtedly implies that Europe is at least moving in the direction of the United States of Europe. The question of whether or not they will ever actually reach that end is another matter entirely. For the United States of Europe to happen the EU would need a true common defense policy complete with a unified European Army. Lisbon does lay the groundwork for future development of more common security and defense policies but its hard to know to what extent those will reach given that the parts of Lisbon that deal with defense are merely amendments and consolidation of the CFSP and the ESDP. The biggest indicators that further political integration are the Euro, the Single Market, the Euro Zone, and the existence of CAP. The existence of the Euro Zone signals a commitment among at least most member states to have a socially and economically integrated Europe. This is true because the Euro Zone suggests that states are willing to sacrifice a great deal of sovereignty by voluntarily weakening their borders to allow the freer movement of goods, services and people across Europe. The mere fact that the EU has a common currency with such limited exception indicates a certain level of trust and unity. When on top of that we consider that even countries like the UK and Denmark are willing to contribute financially to CAP despite having their own currencies and virtually

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Michelle Cini and Nieves Prez-Solzano Borragn, European Union Politics, 3rd ed., (New York : Oxford University Press, 2010), 419-420.

non-existent agricultural sectors is another indicator that even some of the most staunch advocates for state sovereignty are willing to relinquish that sovereignty to ensure the economic success of their fellow European states. This is especially inspiring for those that are proponents of further integration when we consider that CAP makes up approximately 40% of the EU budget. The Single Market program is a defining component of the European integration process.17 In summary the goals of the Single Market are to establish market-oriented policies aimed at removing barriers to trade and the integration of national markets; and marketinterventions aimed at ensuring [competitiveness].18 This policy not only illustrates a commitment to common social and economic policies but the fact that enforcement and management of the behavior of the member states falls on the shoulders of the ECJ is another indication that the regulatory functions of the EU still closely mirror the framework of a federation.

The changing role that the EU plays in the management of the financial sectors of the member states will be quite a telling test of the success of the European experiment. This is perhaps best exemplified by the fact that Germany bailed out Greece following their financial crisis. This is further exemplified by the fact that Germany just declared an end to debate over what to do with Ireland. According to Bloomberg News, lawmakers in Berlin backed Germanys contribution to the [ 85 billion] ($112 billion) bailout for Ireland as Finance Minister Wolfgang Schaeuble said that additional measures to calm financial markets are not

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Michelle Cini and Nieves Prez-Solzano Borragn, European Union Politics, 3rd ed., (New York : Oxford University Press, 2010), 259. 18 Michelle Cini and Nieves Prez-Solzano Borragn, European Union Politics, 3rd ed., (New York : Oxford University Press, 2010), 259.

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needed.19 The article goes on to point out that the debt crises within Ireland and Greece have both posed a risk to engulfing the entire euro-area.20 On the bright side the market for the euro, bonds, and stocks has rallied in the past two days following a positive reaction to the comments made by European Central Bank President Jean-Claude Trichet as a signal policy makers may step up their response.21 When one considers the history of the European Union from the Treaty of Paris that established the ECSC to the Treaty of Rome that established EURATOM and the European Economic Community to Copenhagen and Nice laying out the ground work for enlargement and then finally the establishment of an EU Constitution via Lisbon makes the European experiment one of the most fascinating developments of the 20th century. The debate over the nature of the EU and how to define it has no end in sight. Once again, my argument is that in status quo the European Union still operates under a federalist framework but serves predominantly in a regulatory capacity. The fact that it has the structure of a federation with a strong executive, a strong judicial branch, and has ever-increasing role the European demos gets to play in the process of policymaking via the EP indicates the strengthening of these principles of federation. The everexpanding regulatory capacity of the supranational European institutions would appear to indicate that the confederal elements of the European Union are waning by the second so to speak; in reality they are waning with each consecutive treaty which means there is a lag time between the dispersion policy making power that erodes national sovereignty. This to me proves that regardless of whether it is in the near or distant future there will eventually be consensus that the definition of the EU.

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Germany Backs Aid for Ireland as Schaeuble Resists Extra Steps, Bloomberg News, accessed December 7th,

2010, http://www.bloomberg.com/news/2010-12-02/germany-backs-aid-for-ireland-as-schaeuble-resists-extrasteps.html.
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Germany Backs Aid for Ireland as Schaeuble Resists Extra Steps, Bloomberg News, accessed December 7th, 2010, http://www.bloomberg.com/news/2010-12-02/germany-backs-aid-for-ireland-as-schaeuble-resists-extrasteps.html. 21 Germany Backs Aid for Ireland as Schaeuble Resists Extra Steps, Bloomberg News, accessed December 7th, 2010, http://www.bloomberg.com/news/2010-12-02/germany-backs-aid-for-ireland-as-schaeuble-resists-extrasteps.html.

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This definition will be contingent on the member states views of enlargement, the level of continued economic, social and political ties between member states, and the state of international affairs as a whole. The other major factor will be the timeframe under which the conditions on the ground will change and alter mind-set of the countries that prioritize sovereignty over integration. The terminal result of these factors will at some point alter the popular understanding of the EU. Finally, this new understanding of the EU will likely take the form of an inter-governmental federation and possibly, a full blown and centralized federation known either officially or colloquially as the United States of Europe.

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Bibliography:

Buergin, Rainer. "Germany Backs Aid for Ireland as Schaeuble Resists Extra Steps Bloomberg ." Bloomberg - Business & Financial News, Breaking News Headlines . http://www.bloomberg.com/news/2010-12-02/germany-backs-aid-for-ireland-asschaeuble-resists-extra-steps.html (accessed December 7, 2010). Cini, Michelle, and Nieves Perez-Solorzano Borragan. European Union Politics. 3rd ed. New York: Oxford University, 2010. Hix, Simon. "The Study of the European Union II: The 'New Governance' Agenda and its Rival." In Debates on European Integration. New York: Palgrave Macmillan, 2006. 350355.