Balancing Member States and Union Institutions

Maintaining an effective federation poses special challenges as compared to a unitary political order. Effectiveness and efficiency are challenged by the need for safeguards to reduce the risk of undesired, creeping centralization of all competencies, and safeguards to prevent secession by one or more sub-units.

Federations typically experience long term trends toward centralizing and decentralizing decision-making that can hardly be avoided. A crucial issue is how to halt and reverse such drifts, and thus maintain the federal character of the political order. The DCT contributes to a clearer allotment of different kinds of competences (exclusive, shared, complementary, and economic policy coordination) in Article I-11 and to transparency in Article I-49. These measures may help reduce such unintended drifts, and thus enhance trustworthiness. The proper allocation of such competences remains, however, a crucial normative issue.

If the long term objective is to maintain a federal European Union, it is also important to have institutionalized centrifugal forces that prevent the European Union from turning into a “post-national” political order with no constitutional role for member states. The principle of respect of national identities in Article I-5(1) may be perceived as insufficient in this regard. This concern is even more pressing insofar as the DCT reduces the scope of unanimity, and thus diminishes the ability of any one member state to prevent or modify Europe-wide policies. Member states retain important influence in several ways in the DCT. For instance, the European Council maintains an important role in nominating the Commission President for European Parliament approval, rather than having the President being elected solely by the Parliament.

It also remains to be seen whether the European Court of Justice can and will be trusted to actually overturn Commission proposals upon justified appeals from national parliaments. The Court’s credibility was somewhat strengthened in 2000, when it annulled the Tobacco Advertising Directive in a case brought by Germany, reducing the longstanding suspicion that it always seeks to expand the competences of the European Union.

Balance Among Union Institutions

Another form of balancing concerns how the constitution allocates powers and immunities among central institutions, including powers to nominate and select office holders. Over time, this balance must satisfy normative conditions of legitimacy concerning procedures and outcomes. In this spirit, the DCT Preface reads that the DCT is to establish “the necessary measures to improve the structure and enhance the role of each of the three EU institutions, taking account, in particular, of the consequences of enlargement.”

The Role of the Commission

The Commission’s near-monopoly on legislative proposals will not obviously ensure that the proper kinds of European interest are catered for to the requisite degree. The DCT holds that the European Interest will be formulated and pursued by the Commission President whom the European Council will propose and vote on, or the European Parliament will endorse.

If the primary role of the European Union is to facilitate the self-binding of member states to a unique pareto optimal solution—in effect securing collective action preferences—that should be overriding. However, the European Union has other roles as well. A list of the objectives of the European Union is stated in the DCT Article I-3, including the following: peace, the well-being of its peoples, freedom, security, a single market, sustainable development, a social market economy, full employment, combating social exclusion, solidarity, cultural diversity, and international free and fair trade.

Such lists are plausible, if not uncontroversial. Yet they are unranked and vague. The all-important details, weights, and limits remain obscure and contested. Indeed, they are the stuff of political conflict among parties and ideologies within member states, in the Council of Ministers and in the European Parliament. Moreover, the appropriate weighting is likely to differ among member states, as well as between these sub-units and the Commission institutions.

Yet Article I-25(1) lays down that “the European Commission shall promote the general European interest and take appropriate initiatives to that end.” How, then, shall the Commission deal with the disagreements concerning specification and weighing of these objectives? The Commission’s conception of the general European interest is central to the future of the European Union. Insofar as common policies and the general interest are regarded as pareto improvements and joint gains, it would seem that member states should be overruled, but only in cases such as coordination failure, weakness of political will, or deception. Yet the notion the European interest in the DCT may be interpreted quite differently by democratically accountable members of the Council and the European Parliament, and these interpretations must be balanced. The European interest is presumably a subset of the legitimate interests of individuals, Europeans and others. The task of EU institutions is not only to solve member states’ coordination problems and long-term credibility but also to secure interests of individuals other than those secured by coordinated member state action. And member states may legitimately pursue objectives other than the common European interest. This may require the European Union to abstain from Europe-level regulation. In a federal European Union, member state protests and appeals to national interest may be normatively legitimate and should not necessarily always be overruled by “European interest.” Yet the monopoly power of the Commission may skew the proposals.

On Political Parties

Some have argued that the Commission should not be politicized, presumably in the sense of not making its composition and policies reflect controversial party preferences. Insofar as EU decisions have contested effects, distributive and otherwise, and there are reasons to believe that several choices are arguably good faith specifications of “the European interest”, this worry about politicization seems ill grounded. Indeed, Article I-44 of the DCT recognizes the contribution of political parties at the European level to “contribute to forming European political awareness and to expressing the will of Union citizens.”

There are further reasons to discount concerns about “politicization” of the Commission, stemming from the need for stabilizing mechanisms. The concern that institutions must generate their own support provides grounds for welcoming political contestation concerning the EU executive. Within democratic states, political parties are crucial in the preference formation of citizens by promoting other perspectives and may be central in developing the requisite concern for citizens across sub-units. The DCT not only acknowledges some role for political parties but also ensures increased transparency of the legislative process and increased powers to the European Parliament, possibly influencing the choice of Commission President by political parties. The upshot may well be that European-level policies become contested. Optimists may hope that these changes will make it more likely that parties will contribute to shaping Europeans’ political preferences toward the requisite overarching loyalty over time.