Thomas C. Fischer, an American Looks at the European Union

• Citation: Vol. 19 No. 3
• Publication year: 2005

COMMENTARY

AN AMERICAN LOOKS AT THE EUROPEAN UNION

Thomas C. Fischer

TABLE OF CONTENTS

INTRODUCTION ..............................................................................................1490

I. FEDERALISM: IS THE EUROPEAN UNION A SUPERSTATE? ..................1490

II. THE EUROCITIZEN ..............................................................................1495

III. THE COMMON MARKET AND BEYOND ...............................................1497

IV. THE COMMON AGRICULTURAL POLICY .............................................1504

V. EUROPEAN MONETARY UNION AND THE EURO .................................1508

VI. COMPETITION LAW AND POLICY ........................................................1513

VII. ENLARGEMENT ...................................................................................1517

VIII. INSTITUTIONAL CHANGES/THE NEW CONSTITUTION .........................1525

IX. CRIME AND SECURITY ........................................................................1536

X. FOREIGN RELATIONS ..........................................................................1541

A. The Source of EU Foreign Affairs Authority and Its

Increasing Reach ........................................................................1541

B. Transatlantic Relations ..............................................................1546

C. The World Trade Organization ..................................................1552

CONCLUSION-THE FUTURE OF EUROPE ......................................................1555

AN AMERICAN LOOKS AT THE EUROPEAN UNION

Thomas C. Fischer^*

INTRODUCTION

Be forewarned, this is a "think piece." Hence, I plan to cover a lot of ground, even at the expense of some superficiality. I will be relatively spare with my footnotes (for an American), insofar as most of what I have to say is amply supported in the scholarly literature. However, I shall provide my own perspective on the present status-and probable future-of the European Union.

Although some of my comments may seem critical, they are intended to be constructive. We need a bi-polar (if not a multi-polar) world, and the European Union is our best hope of producing it. A strong and secure Europe is more an advantage than a threat to America. Europe needs to rise to that challenge.¹

I. FEDERALISM: IS THE EUROPEAN UNION A SUPERSTATE?

Is the European Union a success? I give an unqualified "yes" to that question.²It has brought peace and prosperity to European states that had been at war with one another for well over a thousand years. It also has produced a good deal of harmonization and competition in a common market, previously segregated by nation-state.

Why then all this angst about "federalism?" (The "F-word" in Europe is quite different from ours in the United States.) Is the European Union³a superstate? Is it likely to become one-a "United States of Europe?"

Without doubt, the Member States of the European Union sacrificed some sovereignty in order to form a common market. And the scope of the Community enterprise has grown considerably over the past fifty years, particularly during the last fifteen. Nevertheless, few Member States, if any, have lost their national identity from the standpoint of language, cuisine, architecture, or culture. I cannot say that this eventually will not happen; but, if it does, it is still a long way off.

As for the European Union becoming a United States of Europe, note that the United States and the EU began from very different poles. The U.S. federal government was established by the people,⁴whereas the constituent Member States founded the European Union and remain very much in charge thereof.⁵This is evident at any inter-governmental conference, most recently those in Rome and Brussels.⁶Some of the most critical functions of central government (e.g., control of taxation) continue to be withheld from Community institutions.

I think that much of the concern among Europeans about the growing influence of "Brussels"⁷can be attributed to the mass media, which often diminishes or ignores the successes of the European Community while magnifying its failures.

It also should be noted that the United States and European Union "constitutions" are quite different instruments. The U.S. Constitution gives pride of place to the three branches of central government, in their order of importance. Article I is devoted to the legislative, Article II to the executive, and Article III to the judiciary. The purposes for which the federal government was created are only mentioned once (chiefly in Article I, section 8). The European Community Treaty (EC Treaty), by contrast, begins with an elaborate specification of Community objectives and thereafter addresses the Community institutions and their respective powers and responsibilities. Obviously, the signatory Member States intended to restrain EC institutions in ways that the U.S. Constitution apparently did not.⁸

Both systems limit the power of central authority. This is indicated by the U.S. Constitution's "reservation amendments" (IX-XI) and by Article 5 of the EC Treaty, which embodies the "subsidiarity" principle. I think that principle was intended as a brake on European federalism. But subsidiarity cuts both ways; it can serve as an accelerator as well. That is, if there are things that the EU Member States can do better for themselves (which are, therefore, reserved to them), then there must be other things that the Community can do collectively better than the Member States can do individually. I suspect that the list of the latter continues to increase steadily. Hence, it is quite true to say that the EU is "federalizing," even if it is not a federal superstate.

For some years the EU has had a High Representative for Common Foreign and Security Policy, Javier Solana, a sort of quasi-Secretary of State. Now they have added a terrorism czar, and the proposed Constitution would give Solana a more important bridging role between the Commission and Council.⁹

The Community is committed to developing a common immigration and asylum policy and just recently was told by the European Court that it needed a common commercial aviation ("open skies") policy as well.¹⁰The Community also has embraced a single environmental policy (Kyoto), the mutual recognition and enforcement of civil judgments (akin to the U.S. "Full Faith and Credit" clause¹¹), and is looking to harmonize Community languages in some sectors.¹²In a recent speech, former Commission President Romano Prodi applauded the creation of "seven new European Agencies dealing with air, rail and maritime safety, food safety, fisheries control, chemicals and disease prevention and control."¹³The list of examples is far too long to fit in this limited space, so these few will have to suffice. But this may explain some of the angst about European federalism.

What the United States and the European Union do have in common is that they both were assigned the responsibility to regulate commerce within their respective spheres. This is no small power. Other powers, given originally to the U.S. government (such as the power to wage war, coin money, and deal with foreign nations) initially were withheld from the European Union. But, over the course of time, the EU assumed some responsibilities for these matters. The reason for this is, without question, the necessities of the times.

Hence, the decision to transfer more responsibility from the Member States to the Community is not chiefly an ideological one. The States are eager to retain their sovereignty as long as possible. So these shifts are born of necessity and are often taken grudgingly and at the very last minute.¹⁴Some changes are subtle; others are not, but they are continuous and largely inevitable. Put differently, federalization is a process and not an event. There is no absolute limit on it so long as the objectives of a European Union can be better achieved collectively than individually, just as EC Treaty Article 5 provides.

One cannot ignore the fact that every single treaty since the Coal and Steel Treaty in 1952¹⁵has increased the competencies of the European institutions. It is quite incorrect to believe that the American colonies did not have separate governments, economies, or even coinages long after the Constitution was adopted. The U.S. federal government of today is largely a creature of the twentieth century, beginning with the Great Depression.

Furthermore, I think Europeans fail to appreciate the relationship of the U.S. federal government to the states. Many seem to think that the entire nation is run from Washington. In fact, a huge number of rights and regulations remain state-based. If one were to examine all of the laws passed in the United States in a single year, or all of the court cases decided, well over ninety percent would be at the state and local level. Matters most important to the individual-such as domestic relations, education, health and safety, even welfare-are dominantly managed at the state level.

The United States and the European Union were both established to protect against external threat and to harmonize a divided geographical market. In the case of the United States, it was the threat of European sovereigns to a weak confederation of states. In the case of the EU, it was a weakened group of nations at the end of World War II concerned about rebuilding their economies and resisting possible Russian aggression. Just as the Interstate Commerce clause has drawn the states of the United States together, the effort to create a common market has done so in Europe. Both undertakings have been a source of peace, stability, and prosperity virtually unparalleled in the modern world.

I find it quite irritating that political leaders in Europe frequently demonize Brussels. I view this as an evasive tactic used by them when they are unwilling to admit that they have consented to a compromise of sovereignty needed to achieve desirable...