European federalism: Pitfalls and possibilities

• DOI: http://doi.org/10.1111/eulj.12250
• Published date: 01 September 2017
• Date: 01 September 2017
• Author: John Erik Fossum

ORIGINAL MANUSCRIPT

European federalism: Pitfalls and possibilities

John Erik Fossum*

Abstract

The purpose of this article is to show that federalism provides a better understanding of what the EU is, the nature

of the challenges facing it, and the realm of possible solutions than do alternative conceptions such as multilevel

governance. First, some important distortions about the EU and federalism in the EU studies literature need to be

cleared up, before developing a new federal conception of the EU, that of a ‘poly‐cephalous’or multi‐headed

federation. A poly‐cephalous federation is not only deeply contested; it is a highly unstable system, in particular

when facing the types of challenges that the EU has faced since the global economic crisis of 2008. In the final

section, the article looks at a full‐fledged pluralistic federation with poly‐cephalous traits, namely Canada that,

since the 1980s, has greatly modified its poly‐cephalous features with democratic effects. The article identifies

a set of lessons for the EU from Canada's experience.

1|INTRODUCTION

There is a curious paradox in the political and academic debate on the European Union (EU). Whereas it is widely

recognised that the EU has federal features, the general tendency has been to analyse, reconstruct and assess the

EU with reference to theoretical frameworks that are more attuned to centralisation, than federalisation, and

consequently, to frameworks that deflect attention from the key constitutive challenges facing the EU, pertaining

to issues of political order, basis of legitimacy, sphere of competence and mode of community.

This article aims at bringing the debate on the EU back to the federal terrain. I start (in Section 2) by pointing to

some of the important distortions that have thus far shaped theorising on the relationship between the supranational

centre and the Member States (including the insufficient attention being paid to the differences between

federalisation and integration), and showing why the main ‘pluralistic’theoretical frameworks of European integration

(multilevel governance, multinational federation) fall well short of providing a viable analytical framework for the

analysis, reconstruction and assessment of the EU, and the challenges facing it. This leads me (in Section 3) to outline

the key elements of a new and different federal conception of the EU. My claim is that the EU, as it stands, is a deeply

contested and quite unstable type of federation, which is centralising without proper and meaningful democratic

controls. In this sense, I suggest that we characterise the EU as a (fledgling) ‘poly‐cephalous’or multi‐headed

federation.

1

The post‐2007 set of crises have not only rendered instability apparent (so much so that the continued

existence of the Union is seriously threatened), but the EU is also veering off the federal path. The article closes by

*

ARENA, University of Oslo.

1

Some of the relevant features and developments are well captured by the ‘new intergovernmentalism’. See C. Bickerton, J.D. Hodson

and U. Puetter (eds.), The New Intergovernmentalism: States and Supranational Actors in the Post‐Maastricht Era (Oxford University

Press, 2015). The problem is that the authors do not add up the important empirical observations in a convincing conceptualisation

of the EU. All federal systems contain intergovernmental features; hence the observations by Bickerton et al. can be made sense of

under a federal heading.

DOI: 10.1111/eulj.12250

Eur Law J. 2017;23:361–379. © 2017 John Wiley & Sons Ltd.wileyonlinelibrary.com/journal/eulj 361

considering(in Section 4) what theEU can learn from other federations such asCanada, with a long historicalexperience

as a poly‐cephalousfederation. Canadatransformed its federalsystem in the 1980s, greatlymodifying its poly‐cephalous

traits, resulting in, after a lengthyperiod of contestation, improvedstability and democratic legitimacy.

2|EU STUDIES: THE CENTRALISING BIAS

This section starts by pointing to some of the distortions that mar much of the EU studies literature; proceeds to

reasons for the insufficient attention paid to federalism; and thereafter points to the shortcomings of multilevel

governance and multinational federalism.

2.1 |The centralising bias in EU studies

2.1.1 |Taking centralisation largely as a given

Up until the manifold and overlapping crises struck the EU from 2007, EU studies tended to focus on developmentsat

the supranational (that is, EU) level as key drivers of the process of integration. This was largely due to the fact that the

actual theoretical ‘engine’of European integration was either taken from ‘state’legal‐dogmatic constitutional theory

(the post‐New Deal United States in the case of the makers of EU law as an autonomous discipline) or from classical

‘international relations’theories, in the form of neo‐functionalism and intergovernmentalism.

2

The debate centred on whether the EU was integrating or not. Both the pioneering EU law and neo‐functionalism

were imbued with a strong centralisation bias, to the extent that they focused on centre formation and consolidation.

Intergovernmentalism, on the other hand, was devised as a theory of state resistance to integration, or to put it more

precisely, centralisation of power: intergovernmentalism posited that integration proceeded as far (and as quickly) as

states permitted it.

3

The envisaged process dynamics were very different from those of federalisation/de‐

federalisation.

Finally, we could detect a general ‘integration‐cum‐centralisation bias’in EU studies, with the bias helping to pro-

duce a distorted notion of federalisation, because it was subsumed under integration.

4

That implied a downplaying of

the important difference between integration as centre formation/consolidation, on the one hand, and federalisation

as striking a balance between unity and diversity in substantive terms, and between shared rule and self‐rule in com-

munal and procedural terms, on the other.

2

See J.E. Fossum and M. Jachtenfuchs, ‘Federal challenges and challenges to federalism: Insights from the EU and federal states’,

(2017) 24 Journal of European Public Policy, 467–485.

3

This position has its roots in the realist tradition of international relations. A classic statement with direct bearings onthe EU is found

in S. Hoffmann, ‘Obstinate or Obsolete? The Fate of the Nation‐State and the Case of Western Europe’, (1966) 95 Daedalus, 862–915.

For the standard reference to the neo‐realist position, see K. Waltz, Theory of International Politics (Addison‐Wesley, 1979). For a

sophisticated empirical assessment, see A.S. Milward, The European Rescue of the Nation‐state (Routledge, 1992). For a modified

and nuanced version,see Andrew Moravcsik's The Choice for Europe (UCL Press, 1998).

4

Note that this bias is mainly found in those portions of EU studies that did not work from a federal perspective. Federal scholars

have been sensitive to EU pluralism and diversity and have made important contributions to our understanding of the EU. The

problem is that they make up a small minority, only. For an overview of federal scholarship on the EU, see Fossum and

Jachtenfuchs, above, n. 2. Just to cite two of the contributors that have been particularly sensitive to EU diversity, consider for

instance how Joseph Weiler with his notion of constitutional tolerance has underlined how the EU has constantly sought to rec-

oncile a multitude of political orders and constitutional arrangements. He did not however develop these important insights into

a theory of federalism that could render explicit what kind of federation the EU constituted. See J.H.H. Weiler, The Constitution

of Europe, ‘Do the New Clothes Have an Emperor?’and other Essays on European Integration (Cambridge University Press, 1999); J.

H.H. Weiler, ‘European Democracy and the Principle of Toleration: The Soul of Europe’, in F. Cerutti and E. Rudolph, A Soul for

Europe, Vol. 1 (Leuven, 33–54). Neil MacCormick has made a major contribution to our understanding of the tangled nature of sov-

ereignty in Europe, which paved the way for a federal understanding. That he developed with explicit reference to the notion of

subsidiarity whose intellectual lineage is closely related to that of federalism. See N. MacCormick, Questioning Sovereignty (Oxford

University Press, 1999).

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