Conclusion

The conclusion sums up the main arguments of the book: the EU is not an association sui generis. Rather, it belongs to the political form of the federation: a discrete form of political association on a par with, though differentiated from, the other two forms of political modernity, namely, the state and the empire. The federation is a political union of states founded on a federal and constitutional compact that does not absorb the Member States into a new federal state. Federations come into existence because of the instability of the state as a political form. States decide to come together in a federation because they are incapable of maintaining their own political autonomy. Nevertheless, the federation is characterized by its own unique internal contradictions that always threaten its stability and survival. Federal emergency politics brings these contradictions to the fore by eroding the political autonomy of the Member States.

Introduction

The introduction presents an outline of the book together with a brief discussion of other ‘federal’ interpretations of the EU. The main argument of the book is that the EU is a federal union of states, or what this book calls a federation. The federation is a political union of states, founded on a federal and constitutional compact between the Member States, that does not constitute a new federal state. The federation transcends the flawed ‘statist’ distinction between ‘federal’ and ‘confederal’ that still dominates the scholarship on federalism and the EU. The federation is a discrete form of political association on a par with, though distinct from, the other political forms of modernity, that is, the empire and the state.

Balance

This chapter is about the internal contradictions of the federation as a political form manifest in its dual telos, that is, the creation of an ‘ever closer union’ and the protection of the autonomy and diversity of its Member States. The endurance of the federation is predicated on a balance between these forces and the absence of existential conflicts between its Member States. This can be achieved if there is a relative political homogeneity among the Member States. The substance of this homogeneity is not ‘natural’ or ‘pregiven’ but rather a political and constitutional construct unique to any given federation. The political homogeneity set out by the constitutional order of the EU is a part of the post-WWII project of ‘constrained democracy’, a project that has been more dominant in some Member States than others. As the rise of authoritarianism in Poland and Hungary shows, the EU’s constitutional equilibrium is precarious.

Constitutional Nature

This chapter provides an outline of the constitutional theory of the federation and demonstrates how this theory provides an answer to the question of the legal and political nature of the EU. The federation is a discrete political form that transcends the ‘statist’ categories of Staatenbund (confederation) and Bundesstaat (federal state). These categories still obscure both federal theory and EU law scholarship, including the ‘sui generis’ thesis. The federation, or federal union, is founded on a federal compact (Bundesvertrag) between its Member States. This compact is a constitutional contract (Verfassungsvertrag) that gives birth to a new political entity, the Union, and transforms the Member States’ constitutions politically. The federation is a double political existence, consisting of the Union and the Member States, and it therefore has twin sources of authority. The federation is a genuine political order characterized by the internal absence, contestation or repression of sovereignty.

State Transformation and Teleology

This chapter is concerned with the foundations and principles of public authority in the federation and the EU. The federation is a political association, but sovereignty is not at the heart of its public law. The federation is a dual political existence, and has a dual governmental structure composed of the institutions of the Union and of the Member States, neither of which can be explained by the theory of the state. The Union is not a new omni-competent ‘super-state’. Its powers are conferred and ‘functional’ because they are derived from achieving the aims of the Union (the federal telos). But the Member States are not states ‘in the classical sense’ either. Becoming a Member State entails a process of state transformation and constraints on the exercise of public authority. This process of state transformation is intertwined with the emergence of the constitutional regimes of the Member States.

Emergency Rule without a Sovereign

This chapter is about constitutional defence and emergency politics in the federation. It shows that the government of the Eurozone crisis is a manifestation of federal emergency politics. This explains why the dominant theories of the ‘state of exception’, modelled on the political form of the state, do not apply to the EU. The chapter first develops a theory of federal constitutional defence based on the theory and praxis of the antebellum United States (the doctrine of states’ rights) and the nineteenth-century German Confederation (the theory of federal execution and federal intervention). On this basis, the chapter then analyses both ‘Euro-crisis law’ and the contestation of the emergency government of the Eurozone crisis by EU Member States, importantly the Gauweiler and Weiss cases. The chapter concludes with a discussion of the precariousness of federal emergency politics in general and the balance struck with the ‘Greek crisis’ in particular.

Origins and Telos

Why do states federate? This chapter argues that states constitute federal unions because they are incapable of maintaining their own political autonomy and existence. The main reasons for this are a military threat or because the states need to govern and have access to larger internal markets. In order to perpetuate the political autonomy of its Member States, a federation is therefore concerned with defence and/or economic government. After WWII, with the collapse of the fascist experiments and the decline of the European maritime empires, most European states were faced with a long overdue crisis and were incapable of securing their most basic aims. European integration is an integral part of the post-WWII reconstitution of Europe and a response to this crisis. Proposals for both ‘defence federation’ and ‘economic federation’ were launched after WWII; only the latter was successfully established with the Treaty of Rome.