JURIST Guest Columnist Sedef Asli Topal of the University of Szeged discusses the EU’s institutional framework using two popular approaches…The transformation of the European Union into “an ever closer union” in terms of political space is a topic of which has been widely discussed for the last three or four decades in the discipline of International Relations, but there are two distinguished approaches that are usually focused on: (i) the federalist approach and (ii) the intergovernmentalist approach. These are opposing each other as enemies in terms of whether the EU should transform into a federation.

According to the contemporary federalists, the EU has already fulfilled the most important conditions of having a federal government. The EU legislation has an irreversible direct effect on domestic legal systems of Member States (MSs) as long as they remain a part of the union. The founding treaties (primary law) and regulations (secondary law) do not need to be transposed to the national legislations to be valid. Furthermore, according to the final decision of the European Court of Justice in “Costa-Enel” case (1964), EU law is superior to the national law (principle of supremacy) where a contradiction occurs between these two legislations unless the opposite is decided or determined in an exceptional situation by the MSs or the EU.

Correspondingly, the European Court of Justice (ECJ) – now termed Court of Justice of the European Union (CJEU, post-Lisbon) – as the sole coercive power enforcing EU law, protects the personal freedoms and rights of European citizens at the union level (on the initiative of the Commission). EU law also enables the citizens to file an action against the MSs in case their individual rights are violated by arbitrary actions of a member state. Thus, the decisions taken by the CJEU bind the national courts as an outcome of infringement procedures and of referrals to the preliminary ruling (by national courts). Obviously, the EU’s judicial system is highly similar to the judicial system that works in federal states.

Furthermore, another important factor in strengthening the EU’s federal character is undoubtedly ‘the principle of subsidiarity’ embedded in Article 5 of the Treaty on European Union (TEU). Subsidiarity refers to the EU’s application of a particular policy where it does not have the exclusive competence or, in other words, it shares this competence with the individual member states. More clearly, the EU may engage in a specific action if the action cannot effectively be taken by the local or regional governments of a member state (closest to the issue), or when it will be more effective if the EU takes the action in their place, although it is not exclusively authorized to act freely in this policy area. This shows that the environment of solidarity in federations between the state and the federal government is likely to exist between the EU and its MSs when necessary.

In contrast to a federalist, an intergovernmentalist claims that the EU is more similar to a confederacy because the nation states are still major drivers in decision-making. Confederacy is a legally formed entity that has a central government which is competent to enforce laws binding all of its MSs. It is not only the unity of one people or nations but also unity established by states. In a federation, the central government far more meets the purposes of the government of a single people, while in a confederacy it is strictly speaking only for a government of governments. All EU institutions, except the Parliament, consist of elected or appointed government officials of the MSs. Also, it is worth repeating that the union itself is constituted on the confederate basis thanks to its multi-level governance (decentralization of power between the different levels of territorial governments). The TEU and the Treaty on the Functioning of the European Union (TFEU, 2007) have decentralized the power within the EU. “They make clear distinctions regarding the distribution of powers between the EU and MSs by classifying their competencies to carry out support, coordinate or supplement the actions of the MSs.” Moreover, the TFEU has strengthened the role of Parliament so as to create a balance between it and the Council in terms of legislative power.

Nevertheless, the Parliament has still a relatively limited authority in comparison to the Council despite all the achievements gained via the TFEU, even though it is directly elected by the EU citizens through democratic elections renewed every five years. As distinct from the Parliament, the Council is entitled to apply the Common Foreign and Security Policy (CFSP) in cooperation with the European Council and to sign the international treaties with third parties. Whereas the European Commission, which is the only politically independent organ of the union, serves as an executive branch; it also initiates the legislative process by proposing new acts. However, these acts cannot be adopted unless the Parliament and the Council compromise on their enforcement. Under the circumstances, the EU accommodates both federal and confederate components, but it is neither completely one nor the other.

Today, what is disputable is whether the EU will become a political unity in the near future. With its present form, it could be assumed that the EU is somewhere between a confederacy and federation, and if it can become a political unity in the near future, it will most probably be too far away from the US model of federal systems. It may have to find another alternative form of a political integration due to the unwillingness of its MSs for a far less limited sovereignty transfer. Most of the MSs intend to prioritize their national interests at the supranational level. The Committee of Permanent Representatives (COREPER) deployed in the Council of European Union is one of the most significant state intentions in this tendency. It is obvious that if the EU cannot be able to deal with this rigidity over the long term, it may not even take one step further in its integration process and will continue to be wide of the mark of a proper political unity.

Sedef Asli Topal graduated from the University of Szeged in Hungary with a Masters in International Relations with Legal and Business Aspects. She finished the program ranked first in her class and is currently seeking her PhD.

Suggested citation: Sedef Asli Topal, Federalists vs. Intergovernmentalists View of the EU, JURIST – Student Commentary, Sep. 7, 2017, http://jurist.org/forum/2017/01/topal-federalist-intergovernmentalist-EU.php