Nr. 7 – Tombeur, August 2012

Tombeur answers in detail the three questions posed by Klinkers in Paper no. 6, paragraph A. Firstly, is Tombeur’s description of the essence of a Federation his personal opinion or is it the prevailing doctrine? Secondly, on what grounds could it be convincingly argued that a federal organization would be the best form of administrative cooperation for the European Union? Thirdly, why does Tombeur prefer the term ‘federal organization’ to ‘federal Government’?

European Federalist Papers © Leo Klinkers & Herbert Tombeur, 2012-2013

 

Re: Paper no. 6, Paragraph A

In Paper no. 6 you put forward some thorny questions. Whether I answer them fully to your satisfaction you must judge for yourself. In this Paper I will deal with your questions in paragraph A. Paragraphs B and C will be discussed in Paper no. 8; your questions in paragraph D will be answered in Paper no. 9.

As a reminder I repeat the essence of your three questions in Paper no. 6, paragraph A:

  1. Is my description of the essence of a Federation my personal opinion, which may be openly disputed by others, or is it the prevailing doctrine?
  2. How could it be argued convincingly that a federal organization would be the best form of administrative cooperation for the European Union?
  3. Why do I prefer to speak of a federal organization rather than of a federal form of Government?

Re 1. My definition of federalism as an organizational model is in line with the prevailing doctrine. Recent publications by authors such as Daniel Elazar, Preston King and William Riker have confirmed the essence of the model. Federalism requires only 1) a degree of autonomy for the entirety of the organization (the federal Government) and a separately operating autonomy of each constituent part (the Federated administrations or Member States); 2) some form of internal cooperation or participation in the Federation, on an equal footing – the governments of the constituent parts should communicate with each other; and 3) a unanimously guaranteed autonomous survival of the whole and of the parts with their respective autonomies.

The third characteristic implies that the Federation’s internal organization cannot be changed unilaterally – nor by the federal Government nor by (one of) the Governments of the Federation’s Member States (the Federated members). All Governments must agree to any modification of the federal organization, whether this regards, for instance, the division of power between both levels of Government, or the merging or withdrawal of a member, or the joining of a new member. Thus Federations can be very diverse, as I stated before. Each Federation may have specific characteristics with respect to structure and/or procedure. However, the three aforementioned essential conditions must always be fulfilled in order to be able to speak of a Federation.

Re 2. What are the advantages of a federal organization which Europe’s present intergovernmental decision-making does not offer? In our correspondence I wish to confine myself to considering two extremes. One’s destination is automatically a Federation when one sees the consequences of 1) a single centralized Government for Europe, and 2) the return of the monopoly of power to single States in their own territory, only tempered by unilaterally annullable treaties that they conclude among themselves. You will immediately concur that both these models would lead to catastrophes for Europe. The first option would lead to a disaster in the form of a lack of legitimacy, injustice, insecurity, instability and economic decline. The second option would damage Europe from the outside.

One centralized Government for all European policy making – without the Member States’ influence – would not be effective. It would not take into account the diversity of opinions about life in Europe. It would not even take into account the diversity of values with regard to European regulations. This applies to dealing with laws in social relations (horizontal aspect) as well as to the relation between regulations and power. The latter – in other words – refers to the way in which power brokers deal with the rule of law (vertical aspect). This is demonstrated by comparing the British legal system to the continental systems, as derived from the Napoleontic laws. For this reason, centralized Government would not be efficient, due to the many different languages that should be used by that European governmental monopoly for any policy measure. After all, democratic norms imply the principle that the language of Government equals the language of the people – let alone the attitude of the older nations with regard to such a monopoly. The Netherlands, France, Poland, the United Kingdom and other States would be strongly opposed to one centralized European governmental monopoly. History teaches us that it would not take long before uprisings against such a monopoly would occur. Imperia are not sustainable. Imperia are States that are governed centrally, thus governed from one center of power, against the will of the diverse people. As such, Europe would disappear, sooner or later.

The other extreme, eliminating each structural European decision-making, even the intergovernmental form of decision-making, in order to hand over policy making to each individual State, would go fruitlessly against the globalization process as described by you in Paper no. 1. This evolution grew in Europe as of 1945, in the international community’s reaction to State-nationalism, the source of so much trouble. Emotionally unresolved histories of war – some States try to suppress them, however without success because they keep coming back – should not pose any risk of repeating that sad period by allowing individual European States to wallow again in nationalism. Due to increasing political, economic and legal globalization the European States would only damage themselves by eliminating all forms of communal governance. In many respects the world has become multipolar. Large countries in the East and in the South continue to develop and want to play a role on the global stage, including Brazil, China, India, Russia, Turkey and South Africa (BRICST-group). Individual European States are incapable of delivering effective power balancing against such challenges. Individually, they are economically weak and lack the capital – even the five largest European countries, as has become painfully clear since 2008.

Why, then, choose for a European Federation?

In a general sense this would have a democratic advantage. A really effective Federation does not have a monopoly of power. This is crucial: without a minimal form of a vertical and horizontal power sharing system and without a non-violent transfer of power, there will be no Federation. A Federation has as many centers of power as there are defederated governments, plus the federal center itself for governing the federal whole. They all create their own regulations and have their own enforcing policies. If there is no independent exercise of power on the two levels of Government in a State calling itself a Federation, this Federation exists only on paper. Some countries outside of Europe call themselves a Federation, but if you look at their functioning, you will detect only one center of power. There is no option other than calling them federations in name only. You can name an animal a frog, but if it does not croak, jump and swim like a frog, it is not a frog.

By definition, a Federation implies a level of governance closer to the citizens than centrally governed States. This improves the reactive ability of that governing body: the smaller the distance between the decision-making and its execution, the bigger the chances of having a quick and effective approach towards policy challenges. Research indicates that people more easily entrust their local and regional problems to non-nationally elected representatives than to representatives in a political center at a distance.

Federalism results indisputably in a win-win situation both for the individual Member States and for the whole. Ludolph Hugo and Montesquieu already stated centuries ago: together, as a Federation, Member States are stronger than each State separately; the Federation guarantees the Member States’ independency, as agreed upon in a Covenant.

States that claim their specific identity while showing to be governmentally accountable with respect to differences in language, religion, culture, economic structure et cetera, save their autonomy. At the same time they act as a united whole, combining their financial and other means, enabling the whole to exercise certain powers (sovereignty), in order to make them stronger in their joint projects and against other States.

Thus Federations create a win-win situation. They cumulate the desired unity and guaranteed diversity. Federal governance is created to reach governmental effectiveness and an efficient performance on a larger scale through the Member States’ solidarity. The Member States remain completely intact, with their cherished identities. A Federation offers a structural solution for attacking – through cooperation – challenges, threats or conflicts among federated States and between them and third parties. It also protects their diversity.

There is a third advantage in opting for a federal form of governance. The way in which a Federation’s Member State operates creates a good sense of mutual competition. This stems from three characteristics of a federal bond: 1) their sovereign equality and the instruments preserving that equality; 2) the fact that they meet each other on the federal level and 3) the inevitable cooperation. Governmental dynamics are enhanced through the competitive structure of the Member State’s autonomies: the Government of a State operating more effectively and faster than another wins in terms of means and prestige. This does not solely apply to economic parameters but also to problem-solving creativity in other fields of policy-making, such as education, welfare and security. A centrally governed State cannot offer that many chances for exchanging knowledge and experience, and therefore learning processes and comparisons, because that centrally governing body has the monopoly of power that kills any initiative and diversity.

Does a federal structure not have any disadvantages? Of course it has.

In a centrally governed State it is easy for the people to discern which institution or administrator is entitled to regulate and execute regulations; and is thus responsible for a particular measure. A dictatorship is the most clear form of governance, but something that should obviously be avoided. In a Federation things are more complicated, because regulations are more diverse due to the fact that federal governance and the Member States’ governance is shared. In a Federation the citizens’ legal status differs depending on the Member State in which they live or perform legal acts. They have to know different legal systems and deal with them. Nevertheless, it has been concluded through opinion polls, for instance since 1949 in federal Germany, that the majority of citizens prefer the existence of the Member States to a centrally governed State.

The fact that in a Federation governing bodies operate side by side makes things more complicated for administrators. That is why a Federation – contrary to a Unitarian State – leads to additional institutes to make the federal organization function efficiently. There is, for instance, a need for specific institutions to regulate mutual policy-making, cooperation and the resolving of conflicts: instruments such as formal agreements of cooperation, ministerial committees for mutual consultation, courts of justice. These governing bodies operating parallel require consultation before and after decision-making, which is unnecessary in a State governed centrally. The need for cooperation is the inevitable consequence of the diversity of centers of power. More centers than is the case in a Unitarian State, with disadvantages of its own, for instance a democratic deficit.

As a result of the diversity of centers of power it is sometimes difficult to localize who is responsible for the decision-making. But this is not unique to a Federation. Compromises between and even within governing bodies always presuppose a shared responsibility of the participating decision-makers, regardless of the organizational model of the governing body. Much will depend on the differences in society, the electoral system, the party-political landscape (whether power is shared through a coalition), and on decision-making procedures.

With all this in mind, what conclusions could we draw for Europe?

Firstly, conclusions backed by the factual, current situation in Europe.

Europe presents linguistic, social and political diversity, stemming from a century-long restless history. That diversity is in no way diminishing today. On the contrary, it is increasing both socially and politically, both internally and externally, fed by globalization and migration.

More than ever before, Europe’s internal diversity is sensitive. This is proven by the defederalization or regionalization of a number of centrally governed Member States, including Belgium, Italy and Spain. Even the United Kingdom does not escape from this ‘downward’ trend: the ‘devolution’ is a form of decentralization in favor of shifting more decision-making power to Northern Ireland, Scotland and Wales. Isn’t this prove that States as we know them now, nation-states or others, no longer perform optimally for their citizens? Apart from this institutional evolution, which is fostered internally within States boasting a diversity of languages, diversity is increasing in all European States through migration, both from within and outside of Europe.

Externally, Europe’s welfare, influence, stability and security are threatened. Many factors are causing these threats, such as the emergence of the BRICST-group, demanding for themselves markets and power in international organizations, including the UN-Security Council and the International Monetary Fund; furthermore, migration to Europe and turbulences in and around the Middle-East, for instance the so-called ‘Arabic Spring’.

On the one hand the age-old mosaic of societies in Europe and its heavy past prevent the existence of one centralized governing body in one center of power. That would never gain any political support. Moreover, such governance would not be effective or efficient. On the other hand, the constituent parts of Europe will never again have control over their destinies independently – that was lost in 1945 – by returning to the stately independence or sovereignty ‘après la lettre’. This has become a myth since the Westphalen type of sovereignty has lost its value over a period of sixty years. The typical Westphalen nation state has ceased to exist because the colonies will not resurrect, the countries that delivered cheap resources and bought industrial products from the motherland.

Besides, more than ever before our economies are less impeded by distance: transportation links are more efficient than ever before and many services are delivered from a large distance. Even agricultural and industrial products are transported and sold world-wide. Protectionism is not only damaging – as it provokes countermeasures form other countries – it is also useless.

As Guy Verhofstadt states in his 15th Mandeville Lecture in 2009 at the Erasmus University in Rotterdam (the Netherlands): “Protectionism is outright against each fiber of the European project. Against each European logic. The European welfare is exactly build on mastering any form of protectionism. Because we know from the past that this is not a solution for the crisis, but instead is aggravating the crisis. This has been the case in the Great Depression. This has also been the case after the First World War. In short, the road out of the crisis is not in less Europe and more nationalism, but just in more Europe and less protectionism. Europe is not the problem, but the solution.”

I share the opinion that a federalized Europe on the one hand will be capable of answering global challenges, and on the other hand will be giving right to this internal diversity, more than at present. A Federation does not only deliver more advantages, its disadvantages are clearly less than in the present intergovernmental system. The existing construction is dying, as is proven time and time again by the increasing number of European summits, resulting only in the agreement that another summit is necessary, while the stock exchanges fluctuate due to the lack of any stability, debts are increasing and the conflicts between and within Member States continue to escalate.

In view of this situation one may assume that a federal organization for the European continent would fit like a glove. An autonomously operating governance system on two levels – one on the European level and one on that of the Member States – represents the only way out of the present tunnel vision regarding the crisis of, and within, the EU. The financial crisis is continuously growing, and economic instability increasing, due to the fact that European problems are attacked not by the whole but by the Member States separately.

Now the conclusions to be drawn from the political institutions that are operating under European flag, but controlled by intergovernmental decision-making by the European Council.

In my view the disadvantages of any Federation become irrelevant when compared to the present intergovernmental system. What the EU is showing us right now, is far from a good example of simple and transparent governing. Firstly, I will analyze the decision-making process and I will test its transparency. Then I will test its simplicity.

At this moment in time the European Union cannot withstand the test of transparency:

1st The agenda’s per nation State predominate the common European decision-making in formal and informal councils of national ministers. You were correct to point this out at the start of our conversation. They are doing so while the institutions representing the whole (or that should represent the whole, I will come back to this later), namely the European Parliament (EP) and the European Commission (EC), are standing aside. Neither has any control over the European Council of Heads of States, who determine by consensus Europe’s political decisions (the so-called ‘conclusions’). Heads of States who continuously engage in political barters. The European Parliament does not have the right of initiative to make laws. That right belongs to the European Commission, who is - you will guess rightly - intergovernmentally composed: one Commissioner per Member State. and that controls its performance. I would like to quote the late Karel van Miert, former Eurocommissioner, from an interview in 2006 in the weekly Knack: "Appointing one Commissioner per Member State creates a structure in which the national interests of the 25 Member States play a strong role. Some take their task seriously and defend the general interest. But others come from their capital to read out their cheat sheet."

2nd The Member States participate on an unequal basis in the factual decision-making process within the European Council of the Heads of States. And Member States, smaller than Spain, do not participate at all in the informal meetings of members of the European Council who prepare the meetings of that Council. Rather, they are confronted afterwards with the deals made by the bigger Member States and pressed to conform to those decisions. This is flagrantly the case with respect to the debt crisis within the Eurozone. It reminds me of the ‘Directoire’ of about five persons who were governing France (1795-1799), resulting in the bankruptcy of the State and paving the way for Napoleon’s dictatorship. Something to reflect upon, maybe?

3rd The Councils of European Ministers seldom decide by absolute majority (each Member State has one vote), but invariably by a qualified majority (a Member State has a certain number of votes, relating to its demographic and economic weight); essential matters such as fiscal subjects should be decided upon unanimously. The weighing of the votes or the application of a veto invites time and again national Ministers to open their national agendas.

4th The decision-making process takes place behind closed doors, not in an open debate in parliaments, because the process is completely influenced by diplomacy and lobbying. We see the same story with respect to the diversity of rules and procedures.

The EU Treaties allow through differentiated decision-making the construction of ‘closer cooperation’ by at least nine Member States (Article 20, section 2, Treaty of Lisbon). This is the so-called Europe of two different speeds, creating the Treaty of Schengen (at least nine Member States lifted border controls for migration) and the Eurozone (17 out of 27 EU-Member States have one currency, the euro). The European Union has a lot of powers. No less than five types (exclusive, shared, et cetera). It also boasts an arsenal of legislative instruments (the so-called secondary regulations, with the European Treaties together forming the primary regulations), four kinds of binding legal acts, especially the regulations, the directives and the decisions made by the Council. In addition, there are many non-binding legal acts.

Can a European Federation be any uglier than this multi-headed dragon? A cat would not find her own kittens in this institutional and legal maze. The cause of this, in my opinion, is that European politicians are afraid to see Europe working as a proper Federation. This fear may have to do with a desire for power, but also with a lack of self-confidence since the elective behavior of European citizens is becoming increasingly less predictable.

All this is leading to the conclusion that the advantages of a European Federation are enormous and that the disadvantages are negligible, compared to the mist and complexity of the present EU and the fundamental lacks of its intergovernmental approach. What are the members of the Parliament and the EU-Commissioners waiting for? Why don’t they try to escape from under the ‘Directoire’ of the Heads of the largest States, taking the initiative to present European society with the concept of a federal Europe?

Re 3. Now your question why I prefer to speak about federalism as an organizational matter, rather than a stately one.

Federalism is not uniquely reserved to States. It is applicable within any form of organization. Federalism and federal States are not synonymous. Political scientists, among whom Daniël Elazar, Preston King and Michael Burgess, have emphasized that Federalism is a specific administrative structure which does not need to be – per se – stately or even publicly. Elazar has pointed out that federalism can be applied in any organization, even in the private sector. Other authors support this point of view when describing Federalism as a model of organization and not its application, the Federations. Some joint ventures are or become Federations of multi-national private companies. A workers organization can also be a federation, as is the case in the Netherlands.

I would like to quote Michael Burgess from his contribution in ‘Federalism and Federations in Western Europe’ in ‘Origins of the Federal Idea’ of himself and S. Rufus Davis: “The federal principle is, above all, an organizing principle, and it follows logically from this that federation is the organizational form which corresponds to this principle. (…) Federalism can be taken to mean ideological position, philosophical statement and empirical fact. (…) (L)et us here take federalism to mean the recommendation and sometimes the active promotion of support for federation. (…) Although, as King notes, there may be federalism without federation, there can be no federation without some matching variety of federalism.”

With this, Burgess tells us what I stated before: there are as many phenomena of Federalism as there are Federations, public organizations and others.

This is why I prefer to speak of the necessity of a European Federation, in whatever name, and not of a Federal State Europe. Avoiding the word ‘State’ lets people understand that a European Federation, if worthy of that name, does not necessarily have the monopoly of force which is the case in the classical stately functioning of saving internal order and in warfare. This may mean that a European Federation may merge and share policing and military forces, but that it will need a unanimous decision by all Member States to start a war outside the Federation.