Achieving Stability: Balance in the Draft Constitutional Treaty
Follesdal, Andreas, Harvard International Review
Assessments of the European Union often argue that proposed changes respect or even enhance the crucial "balance" that has been carefully achieved among European institutions over the years. However, scrutiny reveals that at least three different forms of balancing are at stake. These balances may all conflict but must still be honored. The institutions must achieve and maintain balance between member states and EU institutions, among EU institutions, and among member states within EU institutions.
Different calls for balancing must themselves be balanced against each other. This drawing on the political philosophy of federalism, which has long insisted that stable and legitimate federal political orders require multiple forms of balancing, facilitates this task. The draft Constitutional Treaty (DCT) strengthens some of the federal features of the future European political order, allowing the extrapolation of standards for assessing the changes from federal thought. Many of the changes in the DCT are improvements on the 2003 Nice Treaty in these regards. In particular, the DCT goes some way toward creating a federal European political order that is more likely to both merit and facilitate trust and trustworthiness among Europeans. Such trust is crucial if the institutions are to foster willing support and "dual loyalty" toward both one's own member state and the union as a whole, among both the citizenry and officials.
These contributions of the DCT add to the impact of the Convention on the Future of Europe, which proved an important and interesting arena for public deliberation. The relatively public nature of some of the discussions may help stimulate broader reflection among non-participants and contribute to overarching loyalty over time. But it is an open question whether such discussions are more likely to yield right outcomes and shifts toward more legitimate preferences. In addition, many have noted that the deliberations did not yield an agreement on the values of the European Union.
The DCT bolsters at least two institutional mechanisms for preference formation toward an "overarching loyalty": interlocking federal arrangements and contestation among political parties, both aided by increased transparency. Such mechanisms for building trust are valuable and may be well worth the loss of effective and efficient problem wrought by increased transparency, interlocking arrangements and political parties.
The DCT clarifies the constitutional split between sub-units and the over-arching structure that is characteristic of federalism. It lays out areas of exclusive competence of EU institutions and other exclusive competences for the member states. This shift from unanimity as the default procedure for the Council of Ministers and the increased power of the European Parliament further underscores the fact that central decisions are to be beyond the control of any single sub-unit. This is not to deny that member states remain influential and exercise control, especially since they participate in central decision-making bodies--typical of "interlocking" federal arrangements.
For purposes of assessing the various balances of the DCT, there are several important implications of bringing federal thought to bear on the European political order. First, because the sub-unit authorities and the central authorities have different competences, they may also have different political values and objectives, sometimes referred to as "national interests" and "European interests." The DCT is ambiguous on this point. It refers to the European interest without clarifying the proper division of responsibilities between the member states and EU institutions with regard to this interest. Second, comparative federalism warns of a higher level of ongoing constitutional re-evaluation concerning the constitution and its values and interpretation than in unitary political orders. …