The European Union: A Comparative Perspective
General Principles of EU Law, Oxford University Press, forthcoming 2017
60 Pages Posted: 7 Mar 2016 Last revised: 27 Apr 2016
Date Written: December 18, 2015
This chapter, to be included in the Oxford Principles of EU Law volume, compares the federalisms of Europe and the United States. It argues that Europe can be sensibly viewed from both federal and intergovernmental perspectives, and that particular aspects of the European Union’s structure fit each model. In particular, the EU is federal — that is, integrated to a comparable degree to the U.S. — with respect to its distribution of competences and the sovereignty attributed to EU law and institutions. But it is intergovernmental — that is, it preserves a center of gravity within the individual member states — with respect to the allocation of governmental capacity to enforce the law as well as to tax and spend, and also because Europeans continue to identify primarily with their member states.
The chapter also addresses two sets of questions about the EU’s future. One concerns the possibility of “creeping centralization” that one observes in the United States, and which one might also detect in the EU’s slogan of “ever closer union.” I argue that any such tendency will be limited by the fact that the modern regulatory and welfare bureaucracies that have spurred centralization in the America instead developed at the member state level in Europe, prior to the advent of the EU. I also consider the impact of exogenous shocks, especially the euro crisis but also parallel crises over migration and terrorism. The response to these crises so far seems to have strengthened the EU’s intergovernmental tendencies.
Comparing Europe and the United States can provide helpful insights about both systems-and federal systems in general. As is often true, the primary value of comparative law here is in the questions it raises, not the answers it may provide. Many aspects of federalism taken for granted in one system are considered nonobvious or even controversial in the other, and an appreciation of this fact can enrich federalism debates on both sides of the Atlantic.
Keywords: European Union, comparative federalism, federalism, intergovernmentalism, Europe
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