A Constitutional Analysis Signe Larsen
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The London School of Economics and Political Science The European Union as a Federation: A Constitutional Analysis Signe Larsen A thesis submitted to the Department of Law of the London School of Economics for the degree of Doctor of Philosophy, London, July 2018 1 Declaration I certify that the thesis I have presented for examination for the PhD degree of the London School of Economics and Political Science is solely my own work other than where I have clearly indicated that it is the work of others (in which case the extent of any work carried out jointly by me and any other person is clearly identified in it). The copyright of this thesis rests with the author. Quotation from it is permitted, provided that full acknowledgement is made. This thesis may not be reproduced without my prior written consent. I warrant that this authorisation does not, to the best of my belief, infringe the rights of any third party. I declare that my thesis consists of 99.943 words. Statement of use of third party for editorial help I can confirm that my thesis was copy edited for conventions of language, spelling and grammar by Hjalte Christian Lokdam. 2 Abstract What type of political association is the European Union? From the start of the European integration process, this question has puzzled scholars. Many different answers have been offered, but in the absence of an agreed response, most scholars implicitly avoid the issue by suggesting that the European Union is ‘sui generis’. In contrast, this thesis maintains that the European Union is a federation (Bund): a political union of states founded on a federal treaty-constitution that does not constitute a new federal state. The thesis maintains, further, that the federation is a discrete form of political association on a par with, though differentiated from, the empire and the state. The thesis aims to make three contributions. First, to contribute to the constitutional theory of the European Union by solving the mystery of its political form. Second, to contribute to the constitutional theory of the federation through an in-depth case study of the European Union as a federal union of states. Third, to contribute to both European Union studies and federalism studies by showing, first, how some of the most profound constitutional questions of the contemporary European Union raised by the rise of authoritarianism in Poland and Hungary and the Eurozone crisis can be properly understood on the basis of the constitutional theory of the federation. Second, by demonstrating how these contemporary issues shed light on the most difficult question for the constitutional theory of the federation: whether, to what extent and under what circumstances the Union has authority to intervene in the internal constitutional affairs of its Member States. Acknowledgements I would not have been able to write this dissertation without the conversations, debates, critique, help, support and, most of all, friendship of several people. I would like to thank a number of my peers at the LSE Law Department—Bernard, Irene, Jake, Rebecca, Samuel and Sarah—whose friendship, encouragement and support have been a source of joy and comfort throughout my doctoral studies. I would also like to thank my supervisors Martin Loughlin and Mike Wilkinson for their invaluable critique, insightful comments and lively debates. I have learned so much from both of them. Most of all, I would like to thank my husband, Hjalte, to whom I dedicate my dissertation. The idea of this thesis was born from one of our conversations on a winter’s walk in Central Park in New York years ago. 3 Table of Contents Introduction 9 Chapter 1: Constitutional Nature The enigma of the European Union and the federation as a discrete political form 18 Chapter 2: Origins Why independent states in general and the post-WWII European states in particular have chosen to constitute among themselves a federal union 56 Chapter 3: State Transformation and Teleology The foundations and principles for the exercise of public power 94 Chapter 4: United in Diversity The problem of the federal balance and constitutional heterogeneity in the European Union 125 Chapter 5: Emergency Rule without a Sovereign The emergency government of the Eurozone and the contestation of constitutional guardianship in the federation 173 Conclusion 217 Bibliography 227 4 Detailed Table of Contents Introduction 9 Chapter 1: Constitutional Nature The enigma of the European Union and the federation as a discrete political form 18 INTRODUCTION 18 I. THE FEDERATION AS A POLITICAL FORM 23 A. The Negative Definition of the Federation 23 B. The Positive Definition of the Federation 27 II. THE FEDERAL CONSTITUTIONAL TREATY 32 A. The Concept of the Federal Constitutional Treaty 32 B. The Constitution of a United Europe 35 III. CONSTITUTIONAL BIRTH AND TRANSFORMATION 38 A. The Double Constitutional Moment 38 B. The Double Political Existence 43 IV. THE TWIN SOURCES OF GOVERNMENTAL AUTHORITY 45 A. The Union and the Member States 45 B. Constitutional Pluralism 47 V. THE QUESTION OF SOVEREIGNTY 50 A. The Antinomy of Sovereignty 50 B. Bracketing Sovereignty 53 Chapter 2: Origins Why independent states in general and the post-WWII European states in particular have chosen to constitute among themselves a federal union 56 INTRODUCTION 56 I. THE SUBSTANTIVE AIMS OF FEDERATIONS 58 A. The Dual Federal Telos of Defence and Welfare 58 B. The Theory of ‘Economic Union’ or ‘Welfare Federation’ 62 C. Economic Federation as a Historical Alternative to Imperialism 66 II. THE AIMS OF POST-WWII EUROPEAN INTEGRATION 67 A. The Crisis of the European Nation-State and the Birth of European Integration 67 B. The Post-WWII Projects of ‘Defence Union’ and ‘Economic Union’ 73 III. THE SUCCESS OF ECONOMIC UNION AND FAILURE OF DEFENCE UNION 80 A. The Constitution of a European Economic Federation 80 B. The Failure of the Fouchet Plan 85 C. Federal Teleology and ‘Integration through Law’ 89 D. The Introduction of Security as a Substantive Aim 91 5 Chapter 3: State Transformation and Teleology The foundations and principles for the exercise of public power 94 INTRODUCTION 94 I. THE PUBLIC LAW STRUCTURE OF A FEDERAL UNION 95 A. Federal Duality 95 B. Independence and Interdependence 97 II. MEMBER STATE TRANSFORMATION 99 A. Member-Statehood and State Transformation 99 B. ‘Constrained Democracy’ 102 C. Constitutional ‘Modernisation’ by Stealth 106 D. Federal Destiny and the ‘Return to Europe’ 110 III. TELEOLOGY AND SPECIALISATION 115 A. The Foundations of the Governmental Authority of the Union 115 B. The Institutional Structure of the Union 118 C. ‘Political Messianism’ and the ‘European Form of Government’ 121 Chapter 4: United in Diversity The problem of the federal balance and constitutional heterogeneity in the European Union 125 INTRODUCTION 125 I. THE PROBLEM OF THE FEDERAL BALANCE 126 A. The Double Telos of the Federation 126 B. Why the Federal Balance cannot be Maintained by a ‘Division of Competences’ 130 C. The Problem of the Political Balance 132 II. THE CONDITIONS FOR THE FEDERAL BALANCE 134 A. The Principle of Homogeneity 134 B. Homogeneity in the European Union 142 C. The Introduction of Political Heterogeneity with the Enlargements to the EU 144 D. The Government of Constitutional Homogeneity and Heterogeneity in the EU 147 III. ADMISSION OF NEW MEMBER STATES 148 A. The Government of Accession 148 B. The Copenhagen Criteria and the Requirement of Political and Economic Homogeneity 154 IV. CONSTITUTIONAL CHANGE AND CONSTITUTIONAL DEFENCE 159 A. The Government of Constitutional Change through a Federal Guarantee Clause 159 B. Constitutional Change and Constitutional Defence in the EU 163 C. A Political Right of Intervention? 169 6 Chapter 5: Emergency Rule without a Sovereign The emergency government of the Eurozone and the contestation of constitutional guardianship in the federation 173 INTRODUCTION 173 I. CONSTITUTIONAL DEFENCE AND EMERGENCY GOVERNMENT IN THE FEDERATION 175 A. Emergency Rule in the Federation 175 B. Federal Execution and Federal Intervention in the German Federation 178 C. The Doctrine of States’ Rights in the Pre-Civil War United States 183 D. Competing Claims to Constitutional Guardianship 188 II. THE EMERGENCY GOVERNMENT OF THE EUROZONE 189 A. Constitutional Defence Prior to the Eurozone Crisis 189 B. The Rise of European Emergency Rule 191 C. ‘Whatever It Takes to Preserve the Euro’ 199 III. THE CONTESTATION OF EU EMERGENCY RULE 202 A. Authority and Austerity 202 B. Judicial Contestation of Emergency Rule 204 C. Political Contestation of the Emergency Government of the Eurozone 213 Conclusion 217 Bibliography 227 List of tables, photographs and any other materials Poster by Melantrich (Prague, 1990) from the V&A poster collection, page 114. 7 “Classical political theory, (…) the kind that begins with Machiavelli and Hobbes and ends somewhere in the nineteenth century, seemed to be of little direct help in comprehending the process by which states unite with one another after the fashion of the Rome Treaty. Classical political theory performs the invaluable service of revealing the leading characteristics of the state (…) However, classical theory does not positively indicate why or how states join together voluntarily to create a body capable of legislating for their own citizens—indeed, precisely because of the emphasis on state sovereignty, it tends to make one deeply sceptical of the possibility of such a development, and to deny in the name of theory the reality that exists before one’s eyes” — Murray Forsyth, Union of States: The Theory and Practice of Confederations (New York, Leicester University Press, 1981), ix-x. 8 Introduction The legal and political nature of the European Union (EU) remains an enigma for academics and the general public alike. For many years, the latter could happily ignore the question of what the EU really is, yet the multiple crises characterising the last decade of European history—the Eurozone crisis, the refugee crisis, the rise of authoritarianism in Poland and Hungary, and Brexit—have prompted a new interest in the EU.