Michał Piotr Kaszubski Jean Monnet Chair of European Constitutional Law Faculty of Law and Administration University of Łódź

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 Wheare’s 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 author’s 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.

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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 Fischer’s 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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while the other represents the collective of their citizens. Since this issue will be the focus of a separate presentation. there is a central seat of legislative authority.to comply with the Treaty rules. but I would only like to point out that such constructs are very typical for federalist institutional settings. The Parliament. 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. but according to which of the transnational party group they belong to. meaning that the Union’s decision no longer require the concurrence of all the Member States. Territories. administrative and budgetary acts. in this case the power to make the Commission step down. Does it mean that the Treaties created a new international order. Another important responsibility. The notion of the ‘rule of law’ is in my opinion of utmost consequence. albeit in limited fields. whose members are not anymore delegates of the Member States and sit not according to nationality. The Commission – a General Secretariat unlike no other 3 . the budget. not the aristocracy’s. a Senate of sorts. few in number. Gemeenschapen) of the federation. traditionally called the power of the purse. on the other hand. This authority is held jointly by the Council composed of ministerial officials of the Member States and a directly elected European Parliament. when one chamber represents the separate regions (States. First. since it allows protecting all other fundamental values. I shall not dwell on it too long. also lies with the Parliament. 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. It has always been the domain of the people to force the executive to quit. lies exclusively with the Parliament. which are proposed by the Commission. 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. The Council and the Parliament share the power of co-deciding legislative. This legislation. Länder. can be deemed to be a chamber representing the different ideologies shared by peoples of Europe. The “raw” legislative power of the Parliament is still minor compared to that of the Council. where the Member State plenipotentiaries. but the historically most important power of supervision.

The aim of the Commission is to secure the general European interest (providing we accept the existence thereof). the territory of the Union is a single and common market. pp. The European Nation-State and the Pressures of Globalization. pp. interpreted in a restrictive way. most of the Union is bound by a monetary union and uses the single common currency. Vol. Unbreakable bonds There are also certain important economic consequences of the Union. New Left Review 1999. Although usually establishment of the common currency is preceded by a formal act See for example: Mancini. First. It is noteworthy that always when an amendment of the Treaties is considered. Although it cannot be called “the European government”. while devotees to the Europe of Nations belief sought to depreciate it by turning the Commission into a secretarial servant of the European Council.Another factor that reinforces the inward pressure of the Community is the phenomenon of the Commission. also available at the Jean Monnet Program website. Jürgen. 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. wholly independent from the Member States after its appointment and parliamentary approval. services. the euro. 235. 29-42. Such a link exists in the Union in the form of the common market and the acquis pertaining to its implementation. protect the smaller Member States from majorisation and ensure lasting balance between the larger Member States. 8 4 . capital and payments. No. Modern federations.. the status of the Commission is discussed. Habermas. First. have established multiple economic ties between the regions which cannot be broken without endangering the very existence of the regions concerned. European Law Journal 1998. it nonetheless fulfils a role that has no counterpart with other international organisations. Federico G. the Commission enjoys a near-exclusive right of initiating legislation. the Commission is. Second. at least nominally. The federalists tried to strengthen the Commission by either subjecting it to parliamentary or even direct 8 (!) election. 4. The Member States can restrict those “four freedoms” only in very specific cases. even per analogiam. goods. 46-59. Europe: The Case for Statehood. Third. ensuring the free movement of persons. most notably the United States. What is even more important. the European Commission is the driving force of the European integration process.

at least do not officially do so. since the states refusing to enter the EMU do not accept the euro. because a democratic institutional setting presupposes equality 13 (in law and in fact) between its citizens. pp. 10 9 5 . 13 “A democracy is not only a representative or parliamentary political regime. Democracy and Constitutional Culture in the Union of Europe. the Citizens of Europe. Massimo (ed). in the European federal setting. We. Constitution and the European Union [in] La Torre. as regards their rights and duties in the common legal order. 11 ECJ Opinion 1/91. Thus. Lothian Foundation Press 1995. it does not serve a merely decorative function. “equality” and “citizenship” are inseparable. After all. Yet. The concepts of “democracy”. It is not wholly true in the Union. 6102. since it is a corollary to national citizenship of the Member States. decide… 12 The notion of “European citizenship” is one of the most obvious federal characteristics of the Union. tighter bonds between the nationals of various Member States can be forged and consequently. The Constitution of Europe: Rights or Democracy? [in] Richard Bellamy. e. The Court’s opinion seems to imply that the ultimate purpose of the Community is one of political integration.). as the democratic “The core of the core of national sovereignty”. Vittorio Bufacchi and Dario Castiglione (eds. Its main purpose is to safeguard equality of treatment between the nationals of different Member States. Kluwer Law International 1998. 435-457. as Lady Margaret Thatcher has once called it. 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. or perhaps better put. However. consequently. NAFTA or OPEC) clearly shows. Massimo. Richard. Citizen. Even where regional currency can be used as legal tender.introducing a federal union.g. p. We cannot forget though. since then it would be next to impossible to plan the expenditures and incomes. As James Madison suggested once. the animus foederationis is fostered. though. but also and above all. an association of equal citizens who are defined as such directly. the European citizenship is one of the ways to gradually lessen the democratic deficit in the Union 14 . „federalise their wallets and their hearts and minds will follow”. 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 . ECR 1991-10. 14 Bellamy. European Citizenship: An Institutional Challenge.g. in the United Kingdom. it cannot be denied that a monetary union can lead to an “upside down” formation of the European identity 10 . that economic ties by themselves cannot create true unity – as the example of other close trade pacts or cartels (e.” – La Torre. this citizenship does not come from membership in the European nation (more on this later). the federal currency has to be accepted as well. no federation can exist without a single currency.

those are the attributes of true citizenship. 317-343. Andreas. further endangering the stability of the European system 18 . fostering that loyalty on the federal level is the key to avoiding conflicts. ”In the Union We Trust”: Trust – Enhancing Principles of Community Law. Having a different outlook on the matter. Koen. Judicial protection on the European level There is also a specialised system of independent judicial protection for the Union citizens. pp. C. 12. The Federal Vision: Legitimacy and Levels of Governance in the US and the EU. Der Bundesstaat [in] Handbuch des Staatrechts der Bundesrepublik Deutschland. 6. Vol. Erin Delaney believes that European citizenship can be called “a nested citizenship” 17 .). Right to an Effective Remedy – Judicial Protection and European Citizenship. Federal-level institutions must work at creating an environment which will encourage and strengthen the individual citizen’s trust and thus willingness to comply with the law 19 . Erin. Royal Institute of International Affairs 2003. 41.equality of the Union’s citizens is generally considered essential for the federation’s survival 15 But can this abstract idea be compared to a national citizenship? The European citizenship “has been given attributes.cit. 19 Follesdal. op. the European Union must constantly strive to bind its citizens even closer to itself. the possibility of direct contact with. Achieving Stability? Forms and Arenas of Institutional and National Balances in the Draft Constitutional Treaty. Sujit. Oxford University Press 2001. 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). 377-402. p. assuming complex links between multiple loyalties. 17 Delaney. Massimo. According to J. pp.F. Joseph H. European Citizenship – Identity and Differentity [in] La Torre.Müller 1987. who can invoke their directly effective rights 21 or demand compensation for losses Kimminich. No. Common Market Law Review 2004. 21 C-26/62 Van Gend en Loos. Citizenship and Federations: Some Preliminary Reflections [in] Kalypso Nicolaidis and Robert Howse (eds. cit. 20 Compare Lenaerts. Unlike an established federal state. p. Federal Trust Constitutional Online Paper Series 2004. influence in and protection from the European institutions independently of the Member States became the essence of this citizenship. quoted in G. 18 Choudry.H. mechanisms and instruments that manifest in a manner not mediated through national. 16 Weiler. 1128. Consequently. since in times of strife the citizens of the Member States are keen to follow their national allegiance. Weiler. State institutions” 16 . ECR 1963. Federico Mancini. op. 15 6 .. 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.

). Moreover. op.incurred because a Member State has violated Community law 22 . Even though. This “disciplinary” and Joined cases C-6/90 and C-9/90 Francovich and Bonifaci. 25 O’Keeffe. since not all federal states envision a judicial recourse to federal courts. Citizenship in a Federal System. Yale Law School Program for Studies in Law. David and Antonio Bavasso. Vicky. 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 . This method of shared competence is also typical for federations. we can consider the European Court of Justice to be the Constitutional Tribunal of the Union. It belongs to the courts of the Member States. the enormous influence and prestige attached to the Community judicature affect the state of European affairs and greatly influence the national courts. an operative system of protecting the common “European democratic values” 25 has been established. accessible also for individuals seeking annulment of acts of the Community institutions. 127-182. Peter. 251-265. The European system of judicial protection performs and additional task. pp. 23 22 7 . which became in this way provincial courts of the Community. Carnegie Endowment for International Peace 2002. including taking it to court and even having a fine imposed on it. p. pp. Citizenship Today: Global Perspectives and Practices. monitoring its uniform and effective application in the whole commonmarket area and preventing the Member States from overstepping the boundaries of their procedural autonomy. Economics and Public Policy Working Paper 2000. The Court of First Instance can be deemed to be the Supreme Administrative Court. Although precedent is not officially recognised as a source of obligatory norms. I-5237.cit. Citizenship and Federalism [in] Thomas Alexander Aleinikoff and Douglas Klusmeyer (eds. the institutions of the Community oversee the activities of the Member States to a great extent. 225. The Union courts enforce formal equality by ensuring the primacy of Community law. ECR 1991-9. 24 Schuck. Fundamental Rights and the European Citizen [in] Massimo La Torre. No. until now. The Commission supervises the implementation of European law and may take steps to ensure that a Member State fulfils its obligations under the Treaties. Jackson. whose interpretation of the Founding Treaties is exclusive and binding and which can arbitrate between the powers of the Union and the Member States. there is no Community judicial body serving as a court of higher instance for the Member State courts.. Thus.

para. The Community legislates exclusively within those fields. 274. After all. 26 8 . p. 29 According to Article 249. but there are also areas of shared competence and those of exclusive competence of the Community. What is even more important. one of Wheare’s criteria of federalism is fulfilled. This law has primacy over the law of the Member States 27 . even though their national law is silent on the topic or even actively contradicts those rights. 28 C-11/70 Internationale Handelgesellschaft. p. according to the established case-law of the Court. L’europe et le fédéralisme. if the regions were not bound by federal law. but nonetheless quite important for the collective economy of the Member States. since they include the common commercial policy. 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 . ECR 1964. 1134. The status of Community law The most obvious federal elements can be perceived in the very status of Community law. or derived from the Community case-law. 3. In this aspect. and quite often it does bend the Croisat. ENEL. p. 30 C-22/70 ERTA/AETR. 594. Montchrestien 1999. Under certain conditions. what reason would be in maintaining that federation? This way.harmonising activity of the Court “has made the Court – as in all federations – the motor of a community or federal integration” 26 . 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. a clear delimitation of their respective powers must be determined. ECR 1970. the Community enjoys “implied powers”. including their constitutional norms 28 . common competition policy and common customs policy. it can. Maurice and Jean – Louis Quermonne. barring the Member States from adopting internal legislation or concluding international agreements. The competence rests exclusively with the Member States by default. either explicitly stated in the Treaties29 . ECR 1971. If the federation and the regions are to function without unending disputes for jurisdiction over a given issue. the citizens of the Union can claim rights stemming from the common provisions. 27 C-6/64 Costa v. Although the Community does not enjoy that what the German doctrine calls “Kompetenz-Kompetenz” (more on this later). Contributions à l’émergence d’un fédéralisme intergouvernemental. The European Union is no exception to this rule. direct effectiveness is typical for Community regulations. The sectors of exclusive competence are few in number.

3372. which until now has been only invoked in the context of a state. Joseph H. C-134/91 Beate Weber. since the Council Presidency and the President of the European Commission do not perform this function. The Court of Justice has more than once described the Founding Treaties as ‘the basic Constitutional Charter’ 32 . I think that such an assumption in the current state of affairs is unfounded. 12. the same way as the Councils of State in the socialist countries operated. p. Weiler 31 . p.html 32 C-294/83 Les Verts. Moreover.. the Union does not have a Head of State or a Head of Government. the allocation of powers in the Union “is in most respect indistinguishable from that which you would find in advanced federal states”. also available at the website http://www. Does this mean that the EU already has become a state in statu nascendi? After all. that the European Union’s institutional setting is clearly a federalist one. It is now prudent to consider the other element of the concept of the federal state.cit. Although is cannot be denied that such symbols bring the European peoples closer together. the notion of a “Constitutional Charter” implies some sort of constitutional norm. 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. 31 9 . para.org/papers/00/001001. ECR 1986-4. All the above reasoning is aimed at proving the fact. ECR 1993-I. 758 para. fulfilling almost all the criteria set by public international law. ECR 1977-I. op. p.jeanmonnetprogram. 23. I shall refrain from discussing the decorative elements like the blue flag with 12 stars. Federalism and Constitutionalism: Europe’s Sonderweg [in] Kalypso Nikolaidis and Robert Howse. the common anthem and the European Day. complete with the common problem in such states – frequent disregard for this allocation. Order in C-2/88 Zwartfeld. See also Opinion 1/76 of 28 April 1977. 1365. Failings of the Union administration Weiler. ECR 1990-7 I. p. It can be disputed whether the European Council fulfils the criteria for being considered a collective Head of State. their importance in the institutional systems is very limited. 1093. According to J. H. Since we established that the Union is “federal”. 8.limits set on its legal activism. para. 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.

Who is Afraid of a European Federation? How to Constitutionalise a MultiLevel Governance System. although surely extensive in scope. First of all. 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. Fourth. the States are very reluctant to divert more of their national funds to the common purse. Börzel 33 calls it. moreover. I shall now briefly describe the proofs for this assertion. a state without police cannot 35 … As Duchacek stated. it does not have the power to levy taxes and increase its revenue if needed – there is no “fiscal federalism”. 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. 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. In every state there are dissident individuals that do not accept the status quo. 10 . available at www. lack some of the essential elements necessary for a complete system of sovereign state governance. we have to remember that a state without armed forces can exist 34 . Even as the Union has its own resources and it does not depend on contributions from the participating members.The Founding Treaties. First of all. consequently. Third. is in reality underdeveloped and totally unprepared for the kind of effective governance that a modern state has to employ.jeanmonnetprogram. only the regional (cantonal) police forces. They are unable to function in the way the civil service of a state does. as it is sometimes called) remains exclusively with the Member States. as T. various small insular countries.g. the Union does not possess the coercive system that is required for state security. Japan. the European Public Prosecutor’s office might be established. the EU has to depend on their police. Second.org 34 E. Even taking that into consideration. the budget of the Community is only a fraction of the GDP of the Member States. resorting to crime and political subversion. Jean Monnet Working Paper 7/00. or where it lacks the 33 Börzel. Since ius puniendi (the power of the sword. 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 administrative apparatus of the Union. albeit denounced by euro-sceptics to be an allencompassing stifling force. judicial and penitentiary systems to protect its interests. Iceland. Tanja and Thomas Risse. The European Arrest Warrant has been adopted and implemented. 35 There is an exception to this rule – Switzerland has no federal police. I admit that the legislation in the Third Pillar is rapidly gaining momentum.

39 E. Protocol 30 to the EC Treaty and Article 9 of the Draft Treaty. Michael. public domain edition at the website http://www. but instead gives a different result – the executive and the legislature are entwined and the borders Duchacek. University Press of America 1987. 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. Comparative federalism: the territorial dimension of politics. Hurst 1996. 174 et seq. If this is so. All its actions must be based on the specific provision in the Treaty 40 and follow the principles of proportionality and subsidiarity41 .. executive authority remains with the Member States. 40 See. in this aspect. p. does not really correspond to the classic principle of the separation of powers 42 . it is hardly surprising since states have far greater power over people's lives than the EU. Bryan A. The complex interplay of checks and balances does not necessarily weaken the whole. All their powers must be explicitly or implicitly bestowed by the Member States. Democracy. 38 Gamer. I-1788) curbing the extensive abuse of the Article 308 EC.g. Consequently. the US Constitution forbids the United States to grant titles of nobility or issue ex post facto laws.org/cm/sol. 41 As defined by the Article 5 EC.” 36 This lack of direct imperium over an individual’s 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. 42 de Secondat. an independent state may legislate in all fields except for those that are specifically barred by its constitution 39 . Ivo D. (ed). The Spirit of Laws.htm 36 11 . the Japanese Constitution forbids the Empire to maintain armies of any kind or to declare war. Black’s Law Dictionary 8th Edition. 37 Newman. p. I-5267) and 2/94 (ECR 1996-3. from which all specific political powers are derived” 38 . As the jurisprudence of the ECJ shows. governed by the principle of institutional balance.g. Charles (Baron de Montesquie). Although the law of the Union is the supreme law of the land.constitution. West Group 2004.coercive machinery which is the form in which most people in fact experience the power of the state. which has “the self-sufficient source of political power. e. which served the Council previously as the “rubber clause” for external EC powers. p. ECJ Opinions 1/94 (ECR 1994-11/12. The Community has no powers of its own. This problem corresponds with the clash between the hierarchy of norms and the hierarchy of real power in the European Union. Sovereignty and the European Union. 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.” 37 No Kompetenz-Kompetenz The Community and the Union act on the principle of conferral. It is contrary to the classic definition of a state.

the draft treaty presented to the MacIntyre.H. The brave federal visions of the European Defence Community and the European Political Community had failed miserably. Switzerland. Modern Law Review 1990. In the modern world. retaining of linguistic diversity could be the key to saving the state from secession. p. contrary to what some researchers believe 45 . Thus. 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. states are inhabited by citizens of different cultures and origins. DavidMaking Europe more democratic will also make it too powerful. 1. Moreover. The Maastricht – Urteil: Sovereignty Now.H Weiler suggests comparing the following essays of Neil MacCormick: Sovereignty. speaking different mother-tongues and having multiple affinities. India and the Republic of South Africa. vol. as this would not reflect the political reality43 . It is acceptable and unavoidable. 43 12 . The Independent. However. It also seems reasonable to remind that while drafting the Treaty of Maastricht. as it was the case with Belgium. 44 J.between them blur. the said union was to happen among “the peoples of Europe – to ensure the economic and social progress of their countries”.. p. 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 ). Even if the Commission were furnished with the powers and responsibility that come with the concept of a state’s government it would not solve the present problems. vol. Beyond the Sovereign State. 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.. 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”. 19 March 1999. Democracy & Subsidiarity [in] Richard Bellamy et al. op. I think that the framers of the EEC Treaty did not want to follow those footsteps. 56. However. Since all the Community institutions (even the Court of Justice. Considering that there are three fields of executive power that are believed to develop significantly in the future (Economic and Monetary Union. 1.cit. the lack of the European lingua franca does not really prevent from establishment of the European nation. the nationals of such multi-lingual states are still bound by common duties and desire a common goal. European Law Journal 1995. 259.

its deep divisions and differences in collective mentality.cit. those peoples assembled in their sovereign Member States did fulfil the federal principle (as demonstrated in the first part of this essay). Even if a feeling of community exists now in the population of certain Member States (most notably the Netherlands and Luxembourg). de Winter and Giertych are “disquieting monuments built upon the ruins of the old ideologies”. V. The feeling of disappointment is especially strong in 45 46 Grimm. as the space within which they expect to move”. or perhaps better put.g. However. It cannot be disputed that notwithstanding its cultural richness and diversity. The other method of inspiring national or supranational loyalty. Hagen. 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’. He writes: “large numbers of young people across Europe treat their Continent.also did not succeed as hoped. Wallace. Bossi. Neither the Commission nor the Council. op. bound by common Judaeo-Christian roots and political traditions dating from Ancient Greece and Ancient Rome. William.the belief in the common institutions . contrary to e. Bogdanor’s beliefs. but they did not create a federal state. such ties are not enough to speak of the single European nation that can legitimise the single European state. establishing a nation “from the top down” . nor the Community judicature had proven to be the factor that bolstered European loyalties. Kjargard. cit. Haider. It was undisputed that at the time of Maastricht Europe was composed of peoples and not of a single people. Dieter. op. the implication cannot be that “the European Parliament does not represent different peoples brought together into a kind of confederal Diet. V. the last year saw a sudden rise in power of the separatist and nationalist movements in the Member States.. Furthermore. while the “European social model” is the most important difference between Europe and America. The ideas of Le Pen. as E.cit. it is not yet universally accepted. revival of extreme-right wing populism and burgeoning of identity politics and xenophobia. Those sovereign peoples.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”. maybe also in the shared consciousness of the European youth 46 . but rather that it represents a single people divided by ideologies” 47 . rather than their country. 47 Bogdanor. 13 . Hobsbawn would have called it 48 . op. the European population is clearly quite distinct from other continents.

available at the address http://www. Erin Delaney strongly advocates the idea that “an individual’s 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 . the national legal systems carry the burden of providing legal protection for their citizens. Vol. Erika. [in] Reich and Micklitz (eds. Making Europe More Relevant to its Citizens: Effective Judicial Process. 21. This opportunity in the Union has clearly been lost. Europe might become much more relevant to its citizens if they were allowed to “pursue their Community Law rights to the maximum extent” 52 .). Harvard Jean Monnet Working Paper No. “Citizens” Rights and Access to Law. Although I would like to believe Jerome Vignon 54 . it is difficult to build a “society of citizens” which could substitute for the European nation. European Law Review 1996. a need for loyalty to and compliance with the European institutions. 53 A state “derives its whole authority from the governed”. That is why the citizens of the Member States do not feel a bond of trust. Hobsbawm Eric. 49 Delaney. Jo. Luca. 572574. 25. The conclusion is that the Union did not obtain its legitimacy from a “European nation” (which according to Black’s Law Dictionary is one of the attributes of state sovereignty 53 ). 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. Public Interest Litigation in European Courts.org/papers/97/97-06-. No. Erin and Barani. 5. Since direct access is “the means of testing the meaningfulness and hence the integrative power of formal rights” 50 . Michael Joseph 1994. 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.jeanmonnetprogram. 48 14 . even the “European-level” derived rights are protected by the Member States. Direct judicial enforcement at the level of the Union has not been developed. in its place. pp. In such a case. 06/97. 351-364. No. pp. it is unavoidable that a prospective European national feels left alone and perhaps even deceived by the lack thereof 51 . Jo.the case of the European courts. Journal of European Integration 2003. 2. Vol. pp. It may take years before the lay Europeans internalise the common principles and desire achieving the common supranational objectives. 95-114. Age of Extremes. 52 Szyszczak. and consequently. The Promotion of “Symmetrical” Citizenship: A Federal Perspective. 50 Shaw. Nomos Verlag 1996. Thus. I think that the time of “the European identity” (perhaps the first supranational identity?) time is not yet come. The Short Twentieth Century 1914-1991. Citizenship of the Union: Towards Post-National Membership?.html 51 Shaw.

54 15 . In my opinion. not the European one. there is no single European people). 55 This way. In his opinion. 56 Forsyth. William Wallace seems to point out. 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). the theory does not match reality in this aspect. the awareness of the latter that. the present function of the Parliament is different that the one of the domestic legislating body. even the MPs themselves do not fully comprehend their role in the process of government. The real game of thrones and the true clash of kings still happen on the national plane. in a worthier vein. as it will be demonstrated below. 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 . the national community remains the broadest focus for political life and group Jerome Vignon (ed). Draft Memorandum to the Commission. but has little possibility to shape its conclusions into binding norms. “the self-preserving interests of the political and bureaucratic élites in the fifteen states and. the Parliament has often been invoked as the true representative of the will of the European peoples (since. Moreover. Karlheinz (ed). As the last Polish European MP elections clearly have proven. Aldershot 1985. they become “second-order elections”. 186. Sadly. There is no true political debate and power struggle on the European level 57 . the confederal government” 56 . it is the national voter who decides on the Council member’s fate. or alongside. It is even more obvious when considering that the European Parliamentary elections are only a sort of sophisticated domestic political poll. in the eyes of their constituencies. at least in theory. p.The unclear role of Parliament Some critics also doubt the “legitimising” role of the European Parliament. Ten European Elections: Campaigns and Results of the 1979/1981 First Direct Elections to the European Parliament. It has been described as a “critical body set over a distinct whole against. COM 2001 (428). Unions of States. Although the Parliament is a directly democratic body. that hope is futile. The most obvious reason to believe so is that the Parliament cannot initiate binding legislation. Perhaps I am overly cynical. Brussels 2001. See Reif. the Parliament inspects facts and asks questions. Approaches to European Governance: For Democratic European Governance. Leicester University Press 1981. but might the reason be that it is not really worthy? After all. Murray. Since all states must possess a legitimate base for the exercise of their powers. it is also more remote and difficult to understand for the citizens of the Union.

Wallace. A huge parliamentary assembly. there is no true source of the Union’s legitimacy other than the Founding Treaties. It is also interesting to note. in most cases behind closed doors. but its works do not. does not really strike us as being overly effective in reaching important decisions quickly. 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. As F. The Question of Europe. 21-50. Although the Community regulates an important part of the Member States’ economic and social life. Wallace. Hardly anyone knows how many working groups exist at any one time. it does not usually perform its duties in a democratic way. “the legislating activity confines itself to rubber-stamping. Investing too much power in that voluminous structure might as well be the Union’s downfall… The Eurocracy phenomenon Furthermore. 295 et seq. 1945-1993 [in] Peter Gowan and Perry Anderson (eds. 32. European Law Journal 1995. 61 According to F. because it is not a fully sovereign entity. 97: “The exact dimensions of the base of the Council hierarchy is one of the EU’s great unsolved mysteries. Mancini has been pointed out. does not really have the feeling of influencing the European policy choices. Having the above reasoning in mind. concluded by the Member States in their public international law capacity. p. 343/ 58 57 16 . since the Council does not answer to the Parliament. the rare individual that followed its European heart’s desire and took part in the elections. while the Commission does so only in theory 59 . 3. vol. p. It is true that the members of the Council possess proper legitimacy. the case of the Barroso Commission seems to contradict such a statement. that although aware of this state of affairs. Rescue or Retreat? The Nation State in Western Europe. Verso 1997. Although such legitimacy is not really essential for an economic union. Does Europe Need a Constitution?.” 62 Lodge. pp.). The powers of the Union are Grimm. Journal of Common Market Studies 1994. drafts prepared by an ambassadorial college (COREPER) and. p. On the other hand. many esteemed researchers believe that further empowering the Parliament may actually lead to efficiency problems 60 . Consequently. at a lower level by numberless 61 . The reasoning above leads to the conclusion that the EU does not have a state-like institutional system. national governments of the Member States have done little to improve it 62 . divided into artificially-constructed European party fractions. The Council of Ministers. Transparency and Democratic Legitimacy. Hayes – Renshaw and H. faceless and unaccountable committees of senior national experts”. 59 Though. MacMillan 1997. vol. William. Dieter. Juliet. it is indispensable for a modern state to function.identity” 58 do not encourage them to empower the European Parliament. the Council does not really help to legitimise the Union.

which are considered unfriendly and disruptive in public international law. Since there is no state devoid of those 17 . almost always leaves exclusive external competence to the government. the Union has no say whatsoever. no matter how decentralised. there is no such thing as a common foreign policy of the Union. The accession of the new Member States will only make this problem more obvious. there is no prospect of any significant progress in this area and any exclusive powers conferred without endangering the uniformity of the Union. the most vulnerable elements of foreign policy. Everything in this regards remains with the Member States. when it comes to security and defence. as it is the case with Belgium (whose communities and regions wield the ius tractatuum that is parallel to their internal competence). who have to reach a unanimous settlement in the Council and are loath to make any concessions to the Union. it cannot be disputed that the Union or the Community can take certain steps. though. possesses the exclusive power to negotiate in the fields of external security and defence. On the other hand.conferred upon it by the Member States and exercised on its citizens through the medium of their governments. however. That being so. Every true state. 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. it is indisputable that. let alone the exclusive power of the Union to shape the fate of the Member States on the international scale. No true foreign policy Any state. 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. regardless of its form. when the notion of “Common Foreign and Security Policy” could be only perceived as a form of black humour. Since the Union is comprised both of states who belong to a tight military alliance and of states who pledged eternal neutrality. for example imposing a trade embargo or other sanctions on a third state. regardless of the lofty ideals invoked by the framers of the Maastricht Treaty. Without any doubt. These powers are not even remotely comparable with the sovereign state’s ius pace et bellum. as we have had the opportunity to observe during the Iraqi crisis.

the division between politics and economy should be only transitory. Dusan. Even the adoption of the Charter of Fundamental Rights and the extensive jurisprudence of the ECJ did not change that situation too much. the Union cannot be deemed an entity able to provide its citizens with rights that cannot be better protected at the national level. The judicial construct of “the fundamental rights” of the European Union. Although economic freedom is now a universally accepted axiom. The Charter was proclaimed as a solemn declaration. the failures of the Second Pillar show clearly that the European state does not exist. either leading to the formation of common foreign policy in the European federalist framework. mostly of a political and public nature. From the European Community to the European Union. stemming from the constitutional traditions of the Member States.a commercial federation. binding only the Community institutions and not the Member States. as the experience of other federations shows.attributes. The Union might well be a federation. or getting even deeper. That did not happen. instead the Member States have insisted on “maintaining a stingy catalogue of rights – no more than mirrors and beads Sidjansky. consequently leading to “The Second Fracture” 63 of the evolving political community. The University of Michigan Press 2000. To sum up. The inclusion of the Charter in the Draft Treaty Establishing the Constitution for Europe cannot be considered conclusive. the technological and social progress should have resulted in bestowing additional rights. since the character of that inclusion is still under dispute. we cannot but assume that the Union does not fulfil one of the most important state functions – protecting own citizens from abuse. Moreover. No catalogue of human rights Lastly. the Member States did not want to substantially expand the catalogue of the rights of the Union citizens. Thus. while the judicial activity of the Court clearly confines its jurisdiction over Member State transgressions to matters of Community law execution. can only be considered a provisional solution. 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 Federal Future of Europe. but a federation of a very peculiar kind . 63 18 . since the list of fundamental rights and their legal effect varies greatly from State to State. Moreover.

68 P. 65 Weiler. commissions of enquiry and “question time”.H. de Schoutheete in “Une Europe…” claimed that the democratic legitimacy is divided between the European Parliament and the national parliaments of the Member States. Certain Rectangular Problems of European Integration [in] Political Series vol.. though this “citizenship” only complements and does not replace national citizenship67 ).H. the Council and the Commission through the means of parliamentary debates. For that reason the Union does not seek to dismantle the current national framework in order to create a European nation-state 69 . the curtness of the catalogue may prove the ideas of certain authors. p. Other elements of the state definition (territory and population) are unquestionable.. 177.cit. 359 with Koen Lenaerts et al. Sage 1995.for the natives” 64 . 64. F. The Question of Democratic Representation [in] Bruno de Witte (ed).. The European Union can at most be considered a Community of States (a sui generis entity). The Quest for Legitimacy in the European Union. 66 F. 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.. The Evolving Concept of Community Citizenship. 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 . Kluwer Law International 1996. Compare also Siofra O’Leary. commenting on Hans Ulrich Jessurun d’Oliveira. 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. or rather oversee. op. Oxford Journal of Legal Studies 1996. 16.) A Citizens’ Europe in Search of a New Integration. European Parliament General Directorate for Research 1996. p. Kluwer Law International 1996. Reforming the Treaty on European Union: the Legal Debate. On the other hand. suggests comparing the analyses by Grainne de Búrca. 69 See Article 6 § 3 EU and Article 5 of the Draft Treaty. op. The EP does in a certain way control. 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. vol. whose double legitimacy is derived both from the nations of the Member States and the autonomous national will of the Member States themselves 68 . 1. 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 . 67 See Article 17 § 1 EC and Article 8 of the Draft Treaty. 20. et al.cit. The national parliaments influence their respective governments in the way prescribed by their national constitutions. 64 19 . p. Mancini. it is not enough to prove that the EU has become a state. J. p. Union Citizenship: Pie in the Sky? [in] Allan Rosas and Esko Antola (eds. Mancini.

Jean Monnet Working Paper no. 71 Leben. Oxford University Press 1991. an organisation of citizens although it has the appearance. 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 . Eijsbouts73 .T. 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. John. 27. Haltern. have never been seriously accused of undemocratic ways or secretive manipulations. 73 Thym. 57. in its very substance. of an organisation between states” 72 . Mancini. 518. Federico G.jeanmonnetprogram. International organisations are non-democratic in the classic sense. 175 et seq. op. 423. The principle of the UN’s decision – making process is diplomacy. Classical and baroque constitutionalism in the face of change (Review essay). summarising the various authors.cit. it is appropriate to ponder what the European Union actually is.…if it is not a state.H. Keeling. or else their norms are nonbinding on the addressees. who believe that the European Union is a “Constitutional Federation”. Charles. 213. and not democracy. The Treaty of Nice and Beyond. and D. 37. but. Common Market Law Review 2000. Daniel. 70 20 .T. Pernice claims “the European Union. Democracy and the European Court of Justice. vol.cit. p. Enlargement and Constitutional Reform. as I. while. Ingolf. quoted in F.org 72 Pernice. vol. p. and Ulrich R. both quoted in Ingolf Pernice. The Security Council has been variously described as overpowered. vol. This author seems to favor the approach of D. badly composed and inefficient. 37. is not only an organisation of states. p. 74 Pinder. Hart 2003. who indulge in such an exercise are either die-hard acolytes of the neo-realist school in political science. p.). European Community.G. J. The Autonomy of the Community Legal Order – Through the Looking Glass. for example.. vol. Modern Law Review 1994. As Judge Mancini has written. “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 . obsolete. above all. available at www. Can it be a mere international organisation? Some believe that the answer must be “no” and put forward certain arguments that support that thesis.Eijsbouts. 147-180. A Federation of Nation States or a Federal State?. and also W. Thym and W. op. European Constitutional Theory and the Post-Nice Process [in] Mads Andenas and John Usher (eds. Paradoxically. Multilevel Constitutionalism in the European Union. eager to prove that any further progress Mancini. Harvard International Law Journal 1996. pp. European Law Review 2002. 75 Weiler. then what it is? In the light of the two issues discussed above. at first sight. The Building of a Union. since they operate by unanimity 70 or at the very least by common accord. Those.H. 7/00. The United Nations.

In D. At the same time. 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. Collected Courses of the Academy of European Law. but not decisive. F. which according to the author is the search for middle ground by means of negotiation and compromise. Osservazioni di un costituzionalista. Sidjansky’s opinion.cit. 106. Kluwer Law International 1997. vol. Rivista trimestrale di diritto e procedura civile 1993. 78 F. Given the above. The intergovernmental elements and the resulting unanimity argument are important. L'Unione europea tra il mercato comune e un moderno tipo di confederazione. Sidjansky. or Theodore Schilling. the development and the recent decline of this group of scholars. that of „inverted federalism”. Another concept. instead preferring to surrender their sovereignity part by part. This approach has been forced by the “First Fracture”. 37. I would strongly oppose M. Paris 1953. Since then. the Union is a “consensual democracy”. Mancini believes that perfect examples of this attitude can be found in Alain Pellet. 80 For more details regarding the institutional setting of the EPC. has been advocated inter alia by D. Why Do Nations Obey International Law. At present. the “inverted federation” will be complete once the Union overtakes all the important functions. Les fondements juridiques internationaux du droit communautaire [in] Academy of European Law. 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 . see F. vol. the fall of the European Political Community idea 80 .19. Yale Law Journal 1997. Harvard International Law Journal 1996. 77 F. He maintains that the European Union practices the sectoral approach to federalism. the notions of „federal” and „intergovernmental” are very different in scope if not opposite in meaning. p. 2615. Mancini suggests comparing Antonio La Pergola. Mancini admits that the intergovernmentality of the second pillar. Projet de Traité portant statut de la communauté européenne. 5.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 ”. Quermonne. who devoted a highly sophisticated analysis to the origins. M. Dehousse’s Constitutional Commission. Mancini refers to Harold Hongju Koh. 389. the Member States for a number of reasons do not wish to engage in a global partnership. Participation in 76 F.-L. The Autonomy of the Community Legal Order: An Analysis of Possible Foundations. limited federalism” 79 . 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. p. 21 . Quermonne’s view that the European Union is an international organisation because of its „intergovernmental. p. and J. 193 et seq. 79 Croisat. In my opinion. vol. Croisat and J. p. op.– L. Since we established the federal character of the Union.

Fédéralisme et souverainité. Revue du Droit Public 1998. moreover. membership of an economic union is perfectly compatible with membership of other bodies 82 . public domain edition at the website http://www. pp. Observation of the political reality in the Union seems to prove the above idea. Arbitration and long consultation with the interested parties allows the legislative process to be relatively painless and facilitates the national implementation of Community legislation. vol. The National System of Political Economy. was a monarchy (other cantons were republics). having converted external trade relations into internal trade relations on the common market 81 . 1909. Ch. as the Union would then derive its authority directly from its citizens and no longer from the Member States. 83 Beaud. presidential or cabinet republics. Friedrich. be they monarchies. 1. 36. What is even more important. it belonged both to the Eidgenossenschaft and to the German Bund. This union functions mainly in the commercial dimension. 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. Green and Co. one of the cantons in the similarly set Swiss Confederation of 1815. See more for this aspect List. Olivier. There are even smaller groups of closely tied states within the Union like the Nordic Union and the Benelux. 81 22 . it will be a big step forward. 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.html 82 Neuchâtel. the UN and the NATO.econlib. Notes pour une théorie constitutionnelle de la Federation.decisions. 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. like the WTO. such trade relations basically do not interfere with the domestic political and institutional setting of the Member States. Longmans. adherence to common solutions and the importance of minority opinions make the burden of qualified majority voting lighter to be borne. The Member States belong to different supranational organisations. The prospective State of European affairs There might be a way to create a wholly new basis for the future Union. The proponents of the 1996 Luxembourg Compromise would have never suspected that it would echo in the future federal decisionmaking process. Another possibility is to conclude “a federal pact”.99-101. 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.org/library/YPDBooks/List/lstNPEtoc.

173. would also be the driving force of the Federation. moreover. 85 See e. p. The Member States would not be absorbed in the future Federation. Everling. 88 Joschka Fischer said: „…in other words. Ingolf. Similarly the Danish Højesteret in the Carlsen judgment of 6 April 1998. The divisions between the Member States might run so deep that the creation of a federal state is unlikely for decades to come. Such a tremendous change in the perception of the Union would be impossible for most politicians. It is wholly possible that the European Union will never become a state. if ever. institutions. W. the German Bundesverfassungsgericht’s Brunner judgment of 12 October 1993. Le fédéralisme contemporain.g. 41.cit. Sind die Mitgliedstaaten der Europäischen Gemeinschaft noch Herren der Verträge? [in] Festschrift für H. perspectives. who also suggests comparing the critical remarks to the Maastricht judgment in U. So what can be done with the results of the British. Hendrik and Pierre Dusclos.the federation will not necessarily mean abandoning the current nation-state structure. A. The Federation would not wholly succeed the Member States. 86 Pernice. 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…”. Sijthoff 1963. What is even more important. It is out of the question to even consider a majority vote to establish the Federation 87 .Mosler. critères. 84 23 . the Member States consider themselves “masters of the Treaties” and intend to remain in that capacity 85 . 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. 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. Sadly. p. but will continue to function alongside it. the common European mentality is not strong enough to warrant transforming the Union into a true federal state. op. 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. since even its greatest proponents are wary of disrupting the current balance of power 88 . Danish. The true pouvoir constituant. I very much doubt it. wielded by the nationals of the Member States. Brugmans. 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 .

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.it 26 . 51-68. - The Annual Report on the State of the European Union. www. op. Bruno.Brus.cit.- de Witte. pp. N.Blokkers and M.M. The Pillar Structure and the Nature of the European Union: Greek Temple or French Gothic Cathedral? [in] T.isae.Heukels.

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