On "federal" ground: The European union as an (Inter)national phenomenon

Common Market Law Review

Volumn 46, Issue 4, 2009, Pages 1069-1105

  Schütze, Robert ^a  

^a DURHAM UNIVERSITY   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 77952642047     PISSN: 01650750     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (205)

1. For a detailed analysis of these three federal traditions, see Schütze, From Dual to Coop-erative Federalism: The Changing Structure of European Law (OUP, 2009, forthcoming), Ch. 1.
2. The following study will use the term "European Union" in its broadest sense, that is: as the all-embracing entity within which all European integration has taken place. Thus, even if much of the constitutional consolidation of Europe has taken place within the European Community that is, the first of the three pillars the article will refer to the constitutional evolution of the European Union writ large. This is a pure linguistic convention. It should not be taken to imply that the European Union and the European Communities presently form one legal entity, but simply acknowledges a semantic evolution in the last decade. This evolution would become official under the Lisbon Treaty as the latter would merge the "European Community" (First Pillar) and the "European Union" (Second and Third Pillar) into one entity: the (Lisbon) European Union, cf. Art. 47 TEU Lisbon and Art. 1(2) of the Treaty on the Functioning of the European Union (TFEU).
3. Friedmann, The Changing Structure of International Law (Stevens, 1964).
4. Robertson, European Institutions: Co-Operation, Integration, Unification (Stevens, 1973), p. 17.
5. For a detailed discussion of the negotiations leading up to the signature of the ECSC Treaty, see Mosler, "Der Vertrag über die Europäische Gemeinschaft für Kohle und Stahl", 14 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (1951), 1.
6. (translation RS): "The contracting parties sought to leave the ground of international relations. They aspired a closer community, which would burst the formal bonds of international treaties and institutions.".
7. On the birth of the term "supranational", see in particular: Reuter, "Le Plan Schuman", 81 Recueil des Cours de l'Académie de la Haye (1952), 519, at 543.
8. Au cours des négociations sur le Traité on vit apparaître spontanément comme une chose allant de soi le terme de "supranational". Le succès de cette expression, plutôt nouvelle dans la langue française, fut considérable". We find a reference to the "supranationality" of the Coal and Steel Community in Art. 9(5)
9. ECSC: "The members of the High Authority shall, in the general interest of the Community, be completely independent in the performance of their duties. In the performance of these duties, they shall neither seek nor take instructions from any government or from any other body. They shall refrain from any action incompatible with the supranational character of their duties." Art. 9 ECSC was repealed by the Merger Treaty and replaced by the new Art. 10 ECSC. The latter made no reference to the "supranational" character of the Community.
10. The Merger Treaty also replaced the name "High Authority" with the "European Commission"
11. Art. 14(2) ECSC.
12. Cf. Bebr, "The Relation of the European Coal and Steel Community Law to the Law of the Member States: A Peculiar Legal Symbiosis", 58 Colum. L. Rev. (1958), 767, at 788 (emphasis added).
13. "The supremacy of the Community law is sometimes asserted on the traditional ground of the supremacy of international law. Undeniably the European Coal and Steel Community Treaty is an international Treaty concluded among the several Member States. However, any attempt to assimilate the Treaty with traditional international treaties beclouds the true nature of the Treaty. The fact that Community law can be enforced directly demonstrates the inherent supremacy of the Community law better than any analogy to traditional international treaties which do not penetrate so deeply into national legal systems.".
14. In addition to binding secondary law, the ECSC Treaty also envisaged directly effective Treaty articles. Art. 65 ECSC prohibited anticompetitive agreements, which where unless authorized by the High Authority "automatically void" (para 5). In Joined Cases 7 & 9/54, Groupement des Industries Sidérurgiques Luxembourgeoises v. High Authority of the Coal and Steel Community, [1956] ECR 175
15. the Court also found Art. 4 ECSC directly effective. Art. 4 ECSC "recognized as incompatible with the common market for coal and steel"and therefore as "abolished and prohibited within the Community, as provided in this Treaty", inter alia, discriminatory measures. The Court ruled that "[t]he provisions of Article 4 are sufficient of themselves and are directly applicable when they are not restated in any part of the Treaty".
16. According to Art. 86 ECSC, the Member States undertook "to take all appropriate measures, whether general or particular, to ensure fulfillment of the obligations resulting from decisions or recommendations of the institutions of the Community and to facilitate the performance of the Community's tasks". For pecuniary decisions adopted by the High Authority, Art. 92(2) ECSC expressly stipulated as follows: "Enforcement in the territory of Member States shall be carried out by means of the legal procedure in force in each State, after the order for enforcement in the form in use in the State in whose territory the decision is to be enforced has been appended to the decision, without other formality than verification of the authenticity of the decision. This formality shall be carried out at the instance of a Minister designated for this purpose by each of the Governments." The same was true for judgments of the Court of Justice, cf. Art. 44 ECSC.
17. Cf. Robertson, "Legal problems of European integration", 91 Recueil des Cours de l'Académie de la Haye (1957), 105, at 143-145.
18. Art. 13 ECSC (repealed by the Merger Treaty and replaced by Art. 17 ESCS).
19. Art. 8 ECSC.
20. Art. 14 ECSC. Community acts were thus considered to be acts of the High Authority even if other Community organs had been involved in the decision-making process. Under the Paris Treaty, the Council's task was primarily that of "harmonizing the action of the High Authority and that of the governments, which are responsible for the general economic policy of their countries" (Art. 26 ECSC). The Council was seen as a "political safeguard" to coordinate activities that fell into the scope of the ECSC with those economic sectors that had not been brought into the Community sphere.
21. For an analysis of the powers of the Council under the ECSC, cf. Jaenicke, "Die Europäische Gemeinschaft für Kohle und Stahl (Montan-Union): Struktur und Funktionen ihrer Organe", 14 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht (ZaöRV) (1951), 727, at 757-761.
22. Bebr, "The European Coal and Steel Community: A political and legal innovation", 63 Yale L.J. (1953-4), 1, at 20-4 defining "supranational powers" as those "exercised by the High Authority" alone, "limited supranational powers" as those acts for which "the Authority needs the concurrence of the Council of Ministers" qualified or unanimous. Powers reserved to the States were identified with the Council's exclusive competences, that is, where the Treaty required a unanimous decision of the Council without any involvement of the High Authority.
23. Cf. Mason, The European Coal and Steel Community: Experiment in Supranationalism (Martinus Nijhoff, 1955), pp. 34-5.
24. As well as Jaenicke, "Der übernationale Charakter der Europäischen Wirtschaftsgemeinschaft", 19 ZaöRV (1958), 153.
25. "Schuman Declaration" of 9 May 1950, available at europa.eu/abc/symbols/9-may/decl_en.htm.
26. On the history and structure of the European Defence Community, see Bebr, "The European Defence Community and the Western European Union: An agonizing dilemma", 7 Stan. L. Rev. (1954-5), 169.
27. Art. 1 of the Draft Treaty establishing the European Political Community characterized the proposal in the following terms: "The present Treaty sets up a European Community of a supranational character. The Community is founded upon a union of peoples and States, upon respect for their personality and upon equal rights and duties for all. It shall be indissoluble." The European Political Community had been designed to amalgamate the European Coal and Steel Community together with the European Defence Community into a new institutional structure (cf. Art. 5 EPC). This institutional design had been identified with the federal idea (cf. Art. 38(1) (c) EPC).
28. The proposed European Parliament would have consisted of two Houses the House of the Peoples and the Senate and would have been the principal law-making organ of the European (Political) Community.
29. For an analysis of the EPC, see Robertson, "The European Political Community", 29 British Yearbook of International Law (1952), 383.
30. In the words of Paul H. Spaak: "After the [EDC] venture it was not reasonable to repeat exactly the same experiment a few months later. A means must be found of reaching the same goal that distant goal of an integrated Europe by other methods and through other channels. We then considered that, having failed on the political plane, we should take up the question on the economic plane and use the so-called functional method, availing ourselves to some extent although, of course, without drawing any strict parallels of the admittedly successful experiment already made with the European Coal and Steel Community." Cf. Address to the Assembly, 21 Oct. 1955, quoted in Robertson.
31. Art. 2 EEC.
32. Efron and Nanes, "The Common Market and Euratom Treaties: Supranationality and the integration of Europe", 6 ICLQ (1957), 670, at 682.
33. Art. 202 EC.
34. "Indeed, it was the reluctance of governments in subsequent years to accept anything in the nature of the supranational which produced the result that powers of the Commission of the EEC were less extensive than those of the High Authority.".
35. Art. 203 EC.
36. During the first two stages of a transitional period stipulated in Art. 8 EEC unanimous decisions would remain the rule; e.g. Art. 43(2) EEC: "The Council shall, on a proposal from the Commission and after consulting the Assembly, acting unanimously during the first two stages and by a qualified majority thereafter, make regulations, issue directives, or take decisions, without prejudice to any recommendations it may also make." However, the transition from unanimity to (qualified) majority voting was to take much longer. The (in)famous Luxembourg Compromise would allow States to insist on their veto power in the Council.
37. Even after the demise of the Luxembourg Compromise (cf. Teasdale, "The life and death of the Luxembourg Compromise", 31 JCMS (1993), 567).
38. Decision-making in the Community was still informed by "consensus" politics. In the 1990s the Council practice was thus described in the following terms: "Let me say it again: the wishes and concerns of delegations in the minority on a given issue will not be brutally overridden, as long as they are willing to negotiate constructively. There is no tyranny of the majority within the Council, because majorities are ephemeral: experienced ministers and officials know it will be their turn before long to rely on colleagues' under-standing. The ethos of the institution remains consensual.
39. Cf. Dashwood, "States in the European Union", 23 EL Rev. (1998), 201, at 206.
40. However, with qualified majority voting having formally become the constitutional norm, the decision-making context had, in the brilliant phrase by Weiler, moved from the "shadow of the veto" to the "shadow of the vote".
41. (Weiler, "The transformation of Europe" in id. The Constitution of Europe (CUP, 1999), p. 72).
42. Case 6/64, Flaminio Costa v. ENEL, [1964] ECR 585, at pp. 593-4 (emphasis added).
43. For a critical evaluation of the early classificatory attempts, see Hay, Federalism and Supranational Organisations (University of Illinois Press, 1966), p. 74.
44. Schwarzenberger, The Frontiers of International Law (Stevens, 1962), p. 280.
45. Pescatore, "International law and Community Law A Comparative Analysis", 7 CML Rev. (1970), 167, at 182.
46. Cf. Hamilton, Madison, and Jay, The Federalist (Cambridge University Press, 2003).
47. In the following quotes from The Federalist I replace the term "federal" with "international" as this was the meaning of the term "federal" at the end of the 18th century. For an analysis of the "classic" tradition of the federal principle.
48. In The Federalist No. 15, Hamilton states : "The great and radical vice in the construction of the existing Confederation is in the principle of LEGISLATION for STATES or GOVERNMENTS, in their CORPORATE or COLLECTIVE CAPACITIES, and as contradistinguished from the INDIVIDUALS of which they consist. Though this principle does not run through all the powers delegated to the Union, yet it pervades and governs those on which the efficacy of the rest depends." And in the words of the same author in The Federalist No. 16: "It must stand in need of no intermediate legislations; but must itself be empowered to employ the arm of the ordinary magistrate to execute its own resolutions. The majesty of the national authority must be manifested through the medium of the courts of justice.".
49. The Federalist No. 40 Title.
50. Letter of Madison to Washington of 16 April 1787, available at www.constitution.org/jm/jm.htm.
51. "Conceiving that an individual independence of the States is utterly irreconcilable with their aggregate sovereignty; and that a consolidation of the whole into one simple republic would be as inexpedient as it is unattainable, I have sought for some middle ground, which may at once support a due supremacy of the national authority, and not exclude the local authorities wherever they can be subordinately useful.".
52. On Alexis de Tocqueville's discussion of the "middle ground" quality of the 1787 U.S. Constitution, see Schütze, op. cit. supra note 1; as well as Wheare, Federal Government (Oxford University Press, 1953), pp. 11-12.
53. "since the United States is universally regarded as an example of federal government, it justifies us in describing the principle, which distinguishes it so markedly and so significantly, as the federal principle".
54. Sasse, "The Common Market: Between international and municipal law", 75 Yale L.J. 695. (1965-6).
55. See also Hay, "The contribution of the European Communities to international law", 59 Proceedings of the American Society of International Law (1965), 195, at 199
56. "The contribution of the Communities for legal science is the breaking-up of the rigid dichotomy of national and international law."
57. Van Raalte, "The Treaty constituting the European Coal and Steel Community", 1 ICLQ (1952), 73, at 74.
58. Constantinesco, Das Recht der Europäischen Gemeinschaften (Nomos, 1977), p. 332 (translation RS).
59. The terms "international" and "national" will be used as analytical terms. The former refers to a voluntary and horizontal structure recognizing the sovereign equality of the States; the latter stands for the hierarchical and vertical structure within a unitary State. Even if the notion of "unitary" is less charged with symbolic connotations, this section will use the term "national" to facilitate a comparison with Madison's discussion of the mixed structure of the American Union.
60. It is difficult- if not impossible- to accept that "the founding treaties as well as each amendment agreed upon by the governments appear as the direct expression of the common will of the [national] peoples of the Union".
61. contra Pernice, "Multilevel Constitutionalism and the Treaty of Amsterdam: European Constitution-Making Revisited?", 36 CML Rev. (1999), 703, at 717 (emphasis added).
62. National ratifications are - with the exception of Ireland - only indirect expressions of the common will of the national peoples of the Union. National consent is typically expressed through national legislatures. It is equally difficult to agree that these national ratifications should be regarded "as a common exercise of constitution-making power by the peoples of the participating State" (emphasis added). This theory does not explain how each unilateral national act ultimately transforms itself into a collective act (Gesamtakt). On the German legal concept of "Gesamtakt".
63. see Köck, Der Gesamtakt in der deutschen Integrationslehre (Duncker & Humblot, 1978).
64. Stein uses the compound "Treaty-Constitution", cf. "Toward Supremacy of Treaty-Constitution by judicial Fiat: On the margin of the Costa case", 63 Mich. L. Rev. (1964-5), 491.
65. The ECJ's positions discussed in this section have gradually, albeit with some limits, been accepted by national judiciaries and national societies in general.
66. For an overview of this "social" development, see Alter, Establishing the Supremacy of European Law (OUP, 2001).
67. Cf. Case 90-91/63, Commission v. Luxembourg and Belgium, [1964] ECR 625 and Case 52/75, Commission v. Italy, [1976] ECR 277.
68. Cf. Case 11/70, Internationale Handelsgesellschaft mbH v. Einfuhrund Vorratsstelle für Getreide und Futtermittel, [1970] ECR 1125.
69. Some legal scholars refer to the "supremacy" of international law vis-à-vis national law, cf. Morgenstern, "Judicial practice and the supremacy of international law", 27 British Yearbook of International Law (1950), 42.
70. However, the concept of supremacy is here used in an imprecise way. Legal supremacy stands for the priority of one norm over another. For this, two norms must form part of the same legal order. However, classic international law is based on the sovereignty of States and the latter implies a dualist relation with national law.
71. The dualist veil protected national laws from being overridden by norms adopted by such "supranational" authorities as the Catholic Church or the Holy Roman Empire. (When a State opens up to international law, this "monistic" stance is a national choice. International law as such does not impose monism on States.
72. On the contrary, in clearly distinguishing between international and national law, it is based on a dualist philosophy.) How, then, can one claim that one of the "foundational principles of international law" is "the general principle of supremacy of treaties over conflicting domestic law, even domestic constitutional law".
73. (Weiler, "Federalism without Constitutionalism: Europe's Sonderweg" in Nikolaidis and Howse (Eds.), The Federal Vision: Legitimacy and Levels of Governance in the United States and the European Union (OUP, 2001), p. 54, at p. 55)?
74. Reference to the international law doctrine pacta sunt servanda will hardly help. The fact that a State cannot invoke its internal law to justify a breach of international obligations is not supremacy. Behind the doctrine of pacta sunt servanda stands the concept of legal responsibility: a State cannot - without legal responsibility - escape its international obligations. The duality of internal and international law is thereby maintained: the former cannot affect the latter (as the latter cannot affect the former)
75. For a brief overview of the jurisprudence of national Supreme Courts, see Craig and de Búrca, EU Law: Text Cases and Materials (OUP, 2008), pp. 353 et seq.
76. "The Second Dimension: Supremacy of Community Law from the Perspective of the Member States".
77. For a longer overview, see Oppenheimer, The Relationship between European Community Law and National Law: The Cases (CUP, 1994 and 2003).
78. Let us concentrate on the German legal order to illustrate this point. In 1974, the German Constitutional Court conceded the supremacy of Community law over some national constitutional provisions, but denied the legal effect of "any amendment of the Treaty which would destroy the identity of the valid constitutional structure of the Federal Republic of Germany by encroaching on the structures which go to make it up" (Internationale Handelsgesellschaft v. Einfuhr und Vorratsstelle für Getreide und Futtermittel (Solange I), BVerfGE 37, 271, para 43).
79. These judicially asserted constitutional limitations have been codified in Art. 23(1) Grundgesetz. The paragraph reads: "The establishment of the European Union, as well as changes in its treaty foundations and comparable regulations that amend or supplement this Basic Law, or make such amendments or supplements possible, shall be subject to paragraphs (2) and (3) of Article 79."
80. Art. 79(3) GG deals with the substantive constitutional limits on the amendment of the German Constitution and states: "Amendments to this Basic Law affecting the division of the Federation into Länder, their participation on principle in the legislative process, or the principles laid down in Articles 1 and 20 shall be inadmissible".
81. The "pluralist position" claims "that there is no objective basis no Archimedean point from which one claim can be viewed as more authentic than the other, or superior to the other within a single hierarchy of norms". "Rather the claims of the Member States and the claims of the EU to ultimate authority within the European legal order are equally plausible in their own terms and in their own perspective.".
82. Cf. Walker, "Sovereignty and differentiated integration in the European Union", 4 ELJ (1998), 355, at 361-2.
83. For the opposite view, see Ipsen, Europäisches Gemeinschaftsrecht (J.C.B. Mohr, 1972), p. 251.
84. For a brilliant analysis of the two dimensions of "federal citizenship", see Schönberger, "European Citizenship as Federal Citizenship: Some Citizenship Lessons of Comparative Federalism", 19 European Review of Public Law (2007), 61, at 79.
85. See also: Case 294/83, Les Verts v. Parliament, [1986] ECR 1339, para 23: "basic constitutional charter".
86. Cf. Art. 48 TEU: "The government of any Member State or the Commission may submit to the Council proposals for the amendment of the Treaties on which the Union is founded. If the Council, after consulting the European Parliament and, where appropriate, the Commission, delivers an opinion in favour of calling a conference of representatives of the governments of the Member States, the conference shall be convened by the President of the Council for the purpose of determining by common accord the amendments to be made to those Treaties. The European Central Bank shall also be consulted in the case of institutional changes in the monetary area. The amendments shall enter into force after being ratified by all the Member States in accordance with their respective constitutional requirements." On the scope and role of the provision in the European legal order.
87. Ipsen, "Europäische Verfassung-Nationale Verfassung", 22 EuR (1987), 195, at 202 (translation RS): "By entering into the Community, the States themselves limited their competence-competence.".
88. Von Bogdandy and Bast, "The European Union's vertical order of competences: The current law and proposals for its reform", 39 CML Rev. (2002), 227, at 237.
89. "[T]he individual Member State has forfeited its right to determine its own competences (Kompetenz-Kompetenz) insofar as it is not permitted to extend its powers unilaterally to the detriment of the Union. While the Member States acting jointly as the Contracting Parties may amend the Treaties, transferring powers back to the Member States, they are bound by the procedures provided for in Article 48 TEU.".
90. On this point, see Schütze, "EC Law and International Agreements of the Member States An Ambivalent Relationship?", 9 Cambridge Yearbook of European Legal Studies (2006-7), 387.
91. Art. 213(2) EC.
92. The Council, meeting in the composition of Heads of State or Government and acting by a qualified majority will nominate a President of the Commission. The nomination has to be approved by the European Parliament. A list of Commissioners will then be proposed "in accordance with the proposals by each Member State". But "the Commission thus nominated shall be subject as a body to a vote of approval by the European Parliament". Only after this approval by the European Parliament, the Commission "shall be appointed by the Council, acting by a qualified majority" (Art. 214 EC).
93. Art. 219 EC.
94. Art. 203 EC.
95. Art. 205 EC.
96. For a similar conclusion albeit from a different perspective: Peters, Elemente einer Theorie der Verfassung Europas (Duncker & Humblot, 2001), pp. 563 and 566.
97. Art. 205 EC stipulates that for a qualified majority the Council must have "at least 255 votes in favour cast by a majority of the members" (para 1). In addition, any member of the Council is allowed to request verification "that the Member States constituting the qualified majority represent at least 62% of the total population of the Union" (para 3). "If that condition is shown not to have been met, the decision in question shall not be adopted." The Lisbon Treaty would replace the triple majority system with a double majority system. Art. 16(4) (reformed) TEU stipulates that "a qualified majority shall be defined as at least 55 % of the members of the Council, comprising at least fifteen of them and representing Member States comprising at least 65 % of the population of the Union". The Lisbon Treaty would thus get rid of weighed votes (after a transitional period).
98. Art. 137 EEC (emphasis added). France preferred this symbolic formulation. And to safeguard the indivisibility of the French Republic guaranteed under Art. 1 of the 1958 French Constitution, the idea of a "representative mandate" was also rejected by the Constitutional Council in its 1977 decision on the 1976 European Parliament Election Act.
99. On this point, see Jacqué, "La Souveraineté française et l'élection du Parlement Européen au suffrage universel direct" in Bleckmann and Ress (Eds.), Souveränitätsverständnis in den Europäischen Gemeinschaften (Nomos, 1980), p. 71, at pp. 76-7.
100. Art. 138 EEC.
101. Direct elections were introduced by Decision 76/787, O.J. 1976, L 278/1 relating to the Act concerning the election of the representatives of the Assembly by direct universal suffrage. The "decision" represented an international agreement between all the Member States and required "adoption in accordance with their respective constitutional requirements". The Act stated that "[t]he representatives in the Assembly of the peoples of the States brought together in the Community shall be elected by direct universal suffrage" (Art. 1). Representatives would be elected for a term of five years (Art. 3). Art. 4(1) would require independence: "Representatives shall vote on an individual and personal basis. They shall not be bound by any instructions and shall not receive a binding mandate." For an overview and a commentary of the provisions of the Act.
102. Cf. Paulin and Forman, "L'élection du Parlement Européen au suffrage universel direct", 12 CDE (2006-7), 506.
103. To this day, the EC Treaty allocates a - neither equal nor proportional number of parliamentary mandates to the Member States and there is still no uniform European electoral procedure. The aim of establishing a uniform electoral procedure has been as old as the Community itself. Pending such a uniform European election law, Decision 76/787 provided in its Art. 7(2) that "the electoral procedure shall be governed in each Member State by its national provisions". However, Arts. 9 and 11-12 of the Act had already established a minimum core. Moreover, since 1976 a number of developments have taken place. First, the EC Treaty now provides under Art. 19(2) EC that "every citizen of the Union residing in a Member State of which he is not a national shall have the right to vote and to stand as a candidate in elections to the European Parliament in the Member State in which he resides, under the same conditions as nationals of that State". Second, since 2004, European Parliamentarians must not be a Member of a national Parliament (the application of this rule is delayed for certain Member States). Most importantly, in 2005, the European Parliament was given a single statute for its Members (cf. Decision 2005/684, O.J. 2005, L 262/1). This will enter into force in 2009. According to its Art. 2, European Parliamentarians "shall be free and independent". Art. 3 insists that "Members shall vote on an individual and personal basis" and "shall not be bound by any instructions and shall not receive a binding mandate." Parliamentarians will be paid out of the Community budget (Art. 23).
104. The ambiguous formulation in Art. 189 EC would change under the Lisbon Treaty. Art. 10 TEU Lisbon states in its second para (emphasis added): "Citizens are directly represented at Union level in the European Parliament." See also: Art. 14(2): "The European Parliament shall be composed of representatives of the Union's citizens.".
105. In the words of Habermas: "The ethical-political self-understanding of citizens in a democratic community must not be taken as a historical-cultural a priori that makes democratic willformation possible, but rather as flowing contents of a circulatory progress that is generated through the legal institutionalization of citizens' communication. This is precisely how national identities were formed in modern Europe. Therefore it is to be expected that the political institutions to be created by a European constitution would have an inducing effect.".
106. Cf. Habermas, "Remarks on Dieter Grimm's 'Does Europe need a Constitution?'", 1 ELJ (1995), 303, at 306.
107. Grabitz, "Der Verfassungsstaat in der Gemeinschaft", (1977) DVBL, 786, at 793. And referring to the French intellectual tradition, Peters finds that "we can already discern a European 'demos', at least in statu nascendi"
108. Cf. Peters, "European Democracy after the 2003 Convention", 41 CML Rev. (2004), 37, at 72.
109. Art. 198 EC: "Save as otherwise provided in this Treaty, the European Parliament shall act by an absolute majority of the votes cast.".
110. On this point, see Schütze, "The European Community's Federal Order of Competences: A Retrospective Analysis" in Dougan and Currie (Eds.), Fifty Years of the European Treaties: Looking back and Thinking Forward (Hart, 2009), p. 63, at p. 70.
111. Cf. Dashwood, "Community legislative procedures in the era of the Treaty on European Union", 19 EL Rev. (1994), 343, at 362-3.
112. "The "product" of the procedure is an act adopted jointly by the European Parliament and the Council in contrast to that of the consultation or cooperation procedures, which is simply an act of the Council.... [T]he acts in question shall be signed by both the President of the European Parliament and the President of the Council, symbolising in the most concrete way possible the joint character of such acts.".
113. Lenaerts, "Federalism: Essential concepts in evolution - the Case of the European Union", 21 Fordham Int'l L.J. (1998), 746, at 763.
114. For a discussion of this dual legitimacy in the context of democratic theory, see section 4.3. infra.
115. On the scope of the European Community's internal and external powers
116. Art. 249(2) EC.
117. Art. 249(4) EC.
118. On the instrumental format of directives, see Schütze, "The morphology of legislative power in the European Community: Legal instruments and the federal division of power", 25 YEL (2006), 91, at 118-129.
119. For EC competition law, see Regulation 17/62, O.J. 1962, L 13/204, Spec. Ed 87 and Regulation 1/2003, O.J. 2003, L 1/1.
120. For the increasing role of European agencies in the direct implementation of European law, cf. Chiti, "The emergence of a Community administration", 37 CML Rev. (2000), 309.
121. Cf. Lenaerts, "Regulating the Regulatory Process: 'Delegation of Powers' in the European Community", 18 EL Rev. (1993), 23, at 27.
122. "The supremacy principle operates exclusively at the executive stage (through the judge or other executive organs like the administration), and not already at the legislative stage in the Member State.".
123. On the "no-commandeering rule" in US federalism, cf. Halberstam, "Comparative federalism and the issue of commandeering" in Nikolaidis and Howse, op. cit. supra note 53, at p. 213.
124. Kadelbach, "European administrative law and the law of a Europeanized administration" in Joerges and Dehousse (Eds.), Good Governance in Europe's integrated Market (OUP, 2002), p. 167, at p. 176.
125. Cf. Madison, The Federalist No. 39, op. cit. supra note 35, at pp. 184-5.
126. Art. 144(1) GG reads (emphasis added): "This Basic Law shall require ratification by the Parliaments of two thirds of the German Länder in which it is initially to apply.".
127. One British, one French and one German "representative" will suffice to support this point; cf. Dicey, Introduction to the Study of the Law of the Constitution (Liberty Fund, 1982), p. 3: "Parliament is, under the British Constitution, an absolutely sovereign legislature" ; Carré de Malberg, Contribution à la Théorie Générale de l'État (Dalloz, 2003 originally published: 1920), pp. 139-40: "La souverainté est entière ou elle cesse de se concevoir. Parler de souverainté restreinte, relative ou divisée, c'est commettre une contradiction in adjecto... Il n'est donc pas possible d'admettre dans l'État federal un partage de la souverainté..." ; and Laband, Das Staatsrecht des Deutschen Reiches (Scientia, 1964 originally published: 1911), p. 73: "die Souveränität eine Eigenschaft absoluten Charakters ist, die keine Steigerung und keine Verminderung zuläßt".
128. Jellinek, Die Lehre von den Staatenverbindungen (Keip, 1996 originally published: 1882), p. 175 (translation RS).
129. One of the best discussions of the concept of Kompetenz-Kompetenz can be found in Hänel, Deutsches Staatsrecht (Duncker & Humblot, 1892), pp. 771-806.
130. Triepel, Unitarismus und Föderalismus im Deutschen Reiche (Mohr, 1907), p. 81.
131. The 1777 and the 1787 American constitutional structures entailed a mixture of "international" and "national" elements. Madison readily admitted this in The Federalist No. 40, op. cit. supra note 35, at p. 191: "The truth is, that the great principles of the Constitution proposed by the convention may be considered less as absolutely new, than as the expansion of principles which are found in the articles of Confederation. The misfortune under the latter system has been, that these principles are so feeble and confined as to justify all the charges of inefficiency which have been urged against it, and to require a degree of enlargement which gives to the new system the aspect of an entire transformation of the old.".
132. The instance on "sharp" categories would allow no gradations between "Confederation" and "Federal State" ; and once sovereignty was the selected criterion, all conceptual nuances and semantic fluidity could be eliminated from the discussion on federal Union. Cf. Jellinek, op. cit. supra note 97, at p. 173.
133. Hallstein would use the term, but then add that "this would not contradict it being the seed of an incipient federation" and "[e]very federation is sui generis" ; cf.
134. Hallstein, Die Europäische Gemeinschaft (Econ, 1973), p. 365 (translationRS).
135. Hay, op. cit. supra note 32, p. at 37: "It should be clear, however, that the term has neither analytic value of its own nor does it add in analysis: the characterization of the Communities as supranational and of their law as 'supranational law' still says nothing about the nature of that law in relation either to national legal systems or to international law.".
136. For this brilliant point, see Schönberger, "Die Europäische Union als Bund: Zugleich ein Beitrag zur Verabschiedung des Staatenbund-Bundesstaat-Schemas", 129 AÖR (2004), 81, at 83.
137. Westerkamp, Staatenbund und Bundesstaat: Untersuchungen über die Praxis und das Recht der modernen Bünde (Brockhaus, 1892).
138. To give one more illustration: Europe's supremacy principle is, in its structure, not unique. The Canadian doctrine of "federal paramountcy" also requires only the "disapplication" and not the "invalidation" of conflicting provincial laws; cf. Smith v. The Queen, [1960] S.C.R. 776.
139. Cf. Pescatore, The Law of Integration: Emergence of a new Phenomenon in International Relations, based on the Experience of the European Communities (Sijthoff, 1974), p. 58.
140. Baquero-Cruz, "The legacy of the Maastricht-Urteil and the pluralist movement", 14 ELJ (2008), 389.
141. For this thesis, see only Wyatt, "New legal order, or old", 7 EL Rev. (1982), 147.
142. Schilling, "The autonomy of the Community legal order", 37 Harv. Int'l L. J. (1996), 389.
143. As well as Pellet, "Les Fondements Juridiques Internationaux du Droit Communautaire", 5 Collected Courses of the Academy of European Law (1994), 211.
144. Brunner et al. v. The European Union Treaty (Maastricht Decision), BVerfGE 89, 155 (1993), translated in [1994] 1 CMLR 57.
145. Ibid., 86: "Unanimity as a universal requirement would inevitably set the wills of the particular States above that of the Community of States itself and would put the very structure of such a community in doubt.".
146. Art. 79(3) GG states: "Amendments to this Basic Law affecting the division of the Federation into Länder, their participation on principle in the legislative process, or the principles laid down in Articles 1 and 20 shall be inadmissible.".
147. Let us quote the contested para 41 (id., at 87) in full: "Democracy, if it is not to remain a merely formal principle of accountability, is dependent on the presence of certain pre-legal conditions, such as a continuous free debate between opposing social forces, interests and ideas, in which political goals also become clarified and change course and out of which comes a public opinion which forms the beginnings of political intentions. That also entails that the decisionmaking processes of the organs exercising sovereign powers and the various political objectives pursued can be generally perceived and understood, and therefore that the citizen entitled to vote can communicate in his own language with the sovereign authority to which he is subject. Such factual conditions, in so far as they do not yet exist, can develop in the course of time within the institutional framework of the European Union.... Parties, associations, the press and broadcasting organs are both a medium as well as a factor of this process, out of which a European public opinion may come into being...." The idea that no political system can operate without a broad consensus on the purposes of government by members of the polity is generally accepted. Only in passing did the German Constitutional Court seemingly define the substantive preconditions of democracy by a relative "spiritual..., social... and political" homogeneity of a people (id., at 88). The reference to Heller was designed to express opposing Schmitt the Court's belief in the necessity of a common set of civic values (!) as the basis of parliamentarianism, cf. Ipsen, "Zehn Glossen zum Maastricht Urteil", 29 EuR (1994), 1, at 6. There is no trace in the judgment of an insistence on racial or ethnic homogeneity. Suggestions to the contrary, describing the German Court's position as one of "organic ethno-culturalism" and as a "worldview which ultimately informs ethnic cleansing", cf.
148. Weiler, "Does Europe need a Constitution: Demos, Telos and the German Maastricht Decision", 1 ELJ (1995), 219, at 251-2 are uninformed and unfair.
149. Ironically, much of what Weiler pronounces to be "his" civic theory of social and political commitment to shared values (ibid., 253) is what we read in the German Constitutional Court's judgment. "In any event the establishment of a 'United States of Europe', in a way comparable to that in which the United States of America became a state, is not at present intended." Incidentally, the German Supreme Court did - superficially - acknowledge the sui generis characteristics of the EU by inventing a new term for the EU - the Staatenverbund
150. On the bridge metaphor, cf. Schmid, "From Pont d'Avignon to Ponte Vecchio: The resolution of constitutional conflicts between the European Union and the Member States through principles of public international law", 18 YEL (1998), 415.
151. For a moderate and informed analysis in English, see Everling, "The Maastricht Judgment of the German Federal Constitutional Court and its significance for the development of the European Union", 14 YEL (1994), 1. For the opposite.
152. Cf. Hobbes, Leviathan (CUP, 1996), pp. 114 and 120.
153. "A Multitude of men, are made One Person, when they are by one man, or one Person, Represented; so that it be done with the consent of every one of that Multitude in particular. For it is the Unity of the Representer, not the Unity of the Represented, that Maketh the Person One.... This done, the Multitude so united in one Person, is called a Common-wealth, or in latine Civitas. This is the generation of that great Leviathan, or rather (to speak more reverently) of that Mortall God, to which wee owe under the Immortal God, our peace and defence." I am grateful to Quentin Skinner for shedding much light on this passage.
154. The theory of popular sovereignty will typically distinguish between a "people" (nation), on the one hand, and a "subject" (citizen) on the other. The former refers to a community characterized by an emotion of solidarity that gives the group consciousness and identity. The latter refers to an individual's legal relation to its State.
155. On these issues, cf. Salmond, "Citizenship and allegiance", 17 L.Q. Rev. (1901), 270.
156. Before the 1789 French Revolution, French kings would refer to the "peoples" of France, cf. Voyenne, Histoire de l'Idée Fédéralist: Les Sources (Presses d'Europe, 1973), p. 165.
157. The UK continues to be a multi-demoi State that comprises the English, Scottish, Welsh and a part of the Irish Nation.
158. Cf. Keating, Plurinational Democracy: Stateless Nations in a Post-Sovereignty Era (OUP, 2001), p. 123: "one of the most explicitly plurinational states in the world".
159. On these issues, cf. Gellner, Nations and Nationalism (Wiley Blackwell, 2006).
160. Hobsbawm, Nations and Nationalism since 1780: Programme, Myth, Reality (CUP, 1992).
161. Cf. Beaud, "The question of nationality within a federation: a neglected Issue in nationality law" in Hansen and Weil (Eds.), Dual Nationality, Social Rights, and Federal Citizenship in the U.S. and Europe (Berghahn Books, 2002), p. 314.
162. On the theory, cf. Zweig, Die Lehre vom Pouvoir Constituant (Mohr, 1904). 132.
163. Grimm, "Does Europe need a Constitution?", 1 ELJ (1995), 282, at 290.
164. Grimm acknowledges the past existence of a descriptive concept of "constitution" that preceded the "normative" idea of "constitution". However, according to him, only the latter is today accepted since it refers to State power and to the democratic idea of a pouvoir constituant. What is perplexing in this context is his reference to the U.S. American Constitutions, especially the Articles of Confederation none of which was adopted by "the" American people. Cf. Grimm, "Die Verfassung im Prozess der Entstaatlichung" in Brenner (Ed.), Der Staat des Grundgesetzes Kontinuität und Wandel: Festschrift für Peter Badura (Mohr Siebeck, 2004), p. 145, at p. 146 (translation - RS): "The normative Constitution emerged in 1776 at the periphery of the then western world, in North America." In a different publication, Grimm even acknowledges the existence in the nineteenth (!) century of treaty-constitutions: "But in the nineteenth century treaty-based constitutions could be found, both through state mergers or out of revolutionary pressure on kings, who did not necessarily fully abandon their pre-constitutional legitimacy while partially recognizing popular sovereignty." Cf. Grimm, "Treaty or Constitution: The legal basis of the European Union after Maastricht" in Eriksen, Fossum and Menéndez (Eds.), Developing a Constitution for Europe (Routledge, 2004), p. 69, at p. 74.
165. This is universally accepted; see EWG Verordnungen, BVerfGE 22, 293 (296) (1967) (translation - RS): "The Community itself is no State, not even a Federal State.".
166. Schmitt, Verfassungslehre (Duncker & Humblot, 2003 - originally published: 1928), p. 78 (translation - RS): "The American Constitutions of the eighteenth century emerge without their proper constitutionalism.".
167. "Citizenship in a federation is by definition dual citizenship - the federal as well as subnational - as the inhabitants of this federation are simultaneously those of the member state to which they belong. Consequently, if dual citizenship is conceived of as an anomaly in the case of the state, it becomes, on the contrary, a prerequisite of the federation.... Dual citizenship, essential to federations, is then nothing but the duplication of the fundamental law of duality of political entities constituting them. In contrast to the state, the federation here is characterized by a 'political dualism'....".
168. American and Germany constitutionalism accept the idea "State Constitutions". However, in both cases, the federal Constitution establishes a normative frame around the State Constitutions. Art. IV, Section 4 of the US Constitution states: "The United States shall guarantee to every State in this Union a Republican Form of Government..." And Art. 28(1) GG states: "The constitutional order in the Länder must conform to the principles of a republican, democratic, and social state governed by the rule of law, within the meaning of this Basic Law. In each Land, county, and municipality the people shall be represented by a body chosen in general, direct, free, equal, and secret elections.".
169. When Professor Weiler confesses that "I am unaware of any federal state, old or new, which does not presuppose the supreme authority and sovereignty of its federal demos" we may draw his attention to the United States of America. Neither of the two Constitutions of the United States was ratified by a "constitutional demos" in the form of "the" American people. The Articles of Confederation were ratified by the State legislatures, while the 1787 Constitution was ratified by the State peoples. And as regards constitutional amendment, Art. V of the U.S. Constitution requires the concurrence of the federal demos acting indirectly through its representatives and three fourths of the State demoi acting either through their representatives or in conventions. The structure of the amendment power led Dicey to conclude that "the legal sovereignty of the United States resides in the States' governments as forming one aggregate body represented by three-fourths of the several States at any time belonging to the Union" ; Dicey, op. cit. supra note 96, at p. 81. More generally, in all (democratic) federal unions the pouvoir constituant should be a compound of the federal and the State demoi, see Schneider, "Alternativen der Verfassungsfinalität: Föderation, Konföderation oder was sonst?", 23 Integration (2000), 171, at 174. Where the "constitutional demos" is conceived in unitary terms, the federal Union loses its federal base, (translation RS): "The democratic idea of the pouvoir constituant of the whole people rescinds the federal basis and, consequently, the federal character of the polity." "In the federal State without federal basis only one people exists. The State-character of the 'States' is thus eliminated.".
170. On the relationship between "theories" and "facts", see Popper, The Logic of Scientific Discovery (Routledge, 2002).
171. Kuhn, The Structure of Scientific Revolutions (University of Chicago Press, 1996).
172. For the same point, see Beaud, "Europa als Föderation? Relevanz und Bedeutung einer Bundeslehre für die Europäische Union", 5/2008 Forum Constitutionis Europae, 18.
173. For a remarkable step towards such a theory of federal constitutionalism, cf. Beaud, Théorie de la Fédération (Presses Universitaires de France, 2007).
174. Classical physics insisted that a phenomenon must be either a particle or a wave; it could not be both. Following the work of Einstein, modern physics now accepts the dual nature of light. On Einstein's discovery in "lay" terms, see Isaacson, Einstein: His Life and Universe (Pocket Books, 2007), Ch. 5.
175. The following discussion focuses on the structural aspect of the democratic deficit. It does not claim that there is no democratic deficit at the social level, such as the low degree of electoral participation or the quality of the public debate on Europe. Nor will it claim that the current constitutional structures could not be improved so as to increase democratic governance in the European Union. For the various dimensions of the question of democratic legitimacy in the EU.
176. see Chalmers et al., European Union Law: Text and Materials (CUP, 2006), pp. 167-178.
177. For the argument that the EU does not suffer from any democratic deficit, see Moravcsik, "In defence of the 'Democratic Deficit': Reassessing legitimacy in the European Union", 40 JCMS (2002), 603.
178. Cf. Gerber, Les Notions de Représentation et de Participation des Régions dans les Etats Fédéraux (EUI LLM Thesis, 1993).
179. Majone, "Europe's 'Democratic Deficit': The question of standards", 4 ELJ (1998), 5, at 11.
180. Dahl, "Federalism and the democratic process" in Pennock and Chapman (Eds.), Nomos XXV: Liberal Democracy (New York University Press, 1983), p. 95, at p. 96.
181. Dahl continues : "If one requirement of a fully democratic process of that the demos exercises final control over the agenda, and if in federal systems no single body of citizens can exercise final control, is it then the case that in federal systems the processes by which people govern themselves cannot even in principle ever be fully democratic?". "Some critics have so contended. But if this is so, then a transnational federal system like the European Community is necessarily undemocratic. Are we to conclude that however desirable it might be on other grounds, when a people who govern themselves under a unitary constitution ever into a larger federal order they must necessarily suffer some loss of democracy?".
182. "[A]lthough in federal systems no single body of citizens can exercise control over the agenda, federalism is not for this reason less capable than a unitary system of meeting the criteria of the democratic process...".
183. Nicolaïdis, "We the Peoples of Europe...", 83 Foreign Affairs (2004), 97, at 102.
184. An example of such mainstream constitutional thinking is the idea that "the most legitimating element (from a 'social' point of view) of the Community was the Luxembourg Accord and the veto power" as "this device enabled the Community to legitimate its program and its legislation".
185. (Weiler, "The Transformation of Europe", 100 Yale Law Journal (1990-1), 2403, at 2473).
186. This is mistaken in two ways. First, how can a unanimous decision of national ministers legitimate directly effective European laws? If European legislation affects European citizens directly, how can an indirect legitimization through national executives be sufficient? To solve this dilemma, Weiler refers to the underlying formal legitimacy of the founding Treaties, which received national parliamentary consent, and to the claim that national parliaments control their government's minister in the Council. However, the former argument cannot explain how an earlier parliament can bind its successors. (This normative problem may only be solved through the insertion of a clause into the national constitution that would legitimatize European integration.) And even if we were to assume absolute control of national ministers by their national parliaments, social legitimacy is in any event co-dependent on "system capacity". Dahl explains this point as follows : "As Rousseau suggested long ago, it is necessarily the case that the greater the number of citizens, the smaller the weight of each citizen in determining the outcome... On the other hand if a system is more democratic to the extent that it permits citizens to govern themselves on matters that are important to them, then in many circumstances a larger system would be more democratic than a smaller one, since its capacity to cope with certain matters - defence and pollution, for example would be greater.".
187. Livingston, Federalism and Constitutional Change (Clarendon Press, 1956), pp. 311-4.
188. Beaud, "Déficit politique ou déficit de la pensée politique?", 87 Le Debat (1995), 44.
189. Winckler, "Description d'une crise ou crise d'une description?", 87 Le Debat (1995), 59.
190. Kohler-Koch and Rittberger, "Charting crowded territory: Debating the democratic legitimacy of the European Union" in Kohler-Koch and Rittberger (Eds.), Debating the Democratic Legitimacy of the European Union (Rowman & Littlefield, 2007), p. 1, at p. 4.
191. Von Bogdandy, "A disputed idea becomes law: Remarks on European Democracy as a legal principle" in Kohler-Koch and Rittberger (Eds.).
192. Forsyth, "The political theory of federalism: The relevance of classical approaches" in Hesse and Wright (Eds.), Federalizing Europe?: The Costs, Benefits, and Preconditions of Federal Political Systems (OUP, 1996), p. 25, at p. 26.
193. The functionalist classic is Mitrany, A Working Peace System: An Argument for the Functional Development of International Organization (National Peace Council, 1946). Neofunctionalism discards the belief in the automaticity of the integration process and emphasizes the need to build new loyalties with strategic elites.
194. The classics here are Haas, The Uniting of Europe: Political, Social and Economic Forces, 1950-1957 (Stanford University Press, 1968) and Lindberg, The Political Dynamics of European Economic Integration (OUP, 1963).
195. Shonfield, Journey to an Unknown Destination (Penguin, 1973). Ironically, the process metaphor itself has been identified with federalism, see Friedrich, Trends of Federalism in Theory and Practice (Pall Mall, 1969), Ch. 1: "The Theory of Federalism as Process".
196. Editorial: "Nation, federation: Quelle Europe ?", 87 Le Debat (1995), 25 (emphasis added).
197. Calhoun described the 1787 legal order as "new, peculiar, and unprecedented" (Calhoun, "A Discourse on the Constitution and Government of the United States" in Lence (Ed.), Union and Liberty: The Political Philosophy of John C. Calhoun (Liberty Fund, 1992), p. 117). The legal structure of the British Commonwealth has equally been described as sui generis, see Balfour Report (1926), available at www.foundingdocs.gov.au/resources/transcripts/cth11_doc_1926.pdf: "The Committee are of opinion that nothing would be gained by attempting to lay down a Constitution for the British Empire. Its widely scattered parts have very different characteristics, very different histories, and are at very different stages of evolution; while, considered as a whole, it defies classification and bears no real resemblance to any other political organization which now exists or has ever yet been tried.".
198. Everling, "Sind die Mitgliedstaaten noch Herren der Verträge" in Bernhardt (Ed.), Völkerrecht als Rechtsordnung, international Gerichtsbarkeit, Menschenrechte (Springer, 1993), p. 173, at p. 178.
199. Haas separated the idea of "federation" from the notion of "State" (op. cit. supra note 159, at p. 37) and could, consequently, speak of the "federal attributes" of the ECSC. The ECSC was, overall, described as a "hybrid form, short of federation", for it did not satisfy all the federal attributes believed by the author to be necessary for a federation to exist : "While almost all the criteria point positively to federation, the remaining limits on the ability to implement decisions and to expand the scope of the system independently still suggest the characteristics of international organisation.".
200. Burgess, Federalism and the European Union: The Building of Europe 1950-2000 (Routledge, 2000), pp. 28-29: "[I]t is not necessarily the case that every 'federalism' will always lead to 'federation' in the sense that Europe will simply be like Germany or Switzerland writ large a new putative national state. Not will it replicate the United States of America, although it does already exhibit many of the traits of the American Confederation during 1781-89. The EU of course is not a federation; it does not fit the established criteria by which we conventionally define such a state. Logically, then, we have a classic case of federalism without federation... Whatever the EU is, it is not yet a state. But it has to be acknowledged that it does have several institutional features and policy-making characteristics of an established federation.".
201. Cf. Friedmann, The Changing Structure of International Law (Stevens, 1964), p. 98: "The Community Treaties stop short of the establishment of a federation. They do not transfer to a federal sphere the general powers usually associated with a federal state..." Pentland, International Theory and European Integration (Faber and Faber, 1973) also identified federalism with the "State model". In fact, his chapter on federalist theory is entitled: "Power and the Supranational State: Varieties of Federalist Theory" and therein we read "federalists are concerned to direct the integrative process toward a definitive, well-articulated ideal a supranational state with specific characteristics". See also: Schmitter, "Imagining the Future of the Euro-Polity with the Help of New Concepts" in Marks, Scharpf, Schmitter and Streek (Eds.), Governance in the European Union (Sage, 1996), p. 121, at p. 133: "[federation] implies the existence of an orthodox sovereign state".
202. This corresponds to Fischer's vision: "The completion of European integration can only be successfully conceived if it is done on the basis of a division of sovereignty between Europe and the nation-state. Precisely this is the idea underlying the concept of 'subsidiarity,' a subject that is currently being discussed by everyone and understood by virtually no one." Cf. "From Confederacy to Federation: Thoughts on the finality of European Integration", Speech at the Humboldt University in Berlin (12 May, 2000).
203. Cf. Dashwood, "The relationship between the Member states and the European Union/Community", 41 CML Rev. (2004), 355, at 356: "a federation of sovereign States".
204. Börzel and Risse, "Who is afraid of a European Federation?", Jean Monnet Working Paper No. 7/00.
205. Delors, "Where is the European Union heading?", Speech at the U.S. Conference Series (March 2001), available at www.ena.lu/: "federation of nation states".