Assessments of the European Union often argue that proposed changes respect or even enhance the crucial “balance” that has been carefully achieved among European institutions over the years. However, scrutiny reveals that at least three different forms of balancing are at stake. These balances may all conflict but must still be honored. The institutions must achieve and maintain balance between member states and EU institutions, among EU institutions, and among member states within EU institutions.

Different calls for balancing must themselves be balanced against each other. This drawing on the political philosophy of federalism, which has long insisted that stable and legitimate federal political orders require multiple forms of balancing, facilitates this task. The draft Constitutional Treaty (DCT) strengthens some of the federal features of the future European political order, allowing the extrapolation of standards for assessing the changes from federal thought. Many of the changes in the DCT are improvements on the 2003 Nice Treaty in these regards. In particular, the DCT goes some way toward creating a federal European political order that is more likely to both merit and facilitate trust and trustworthiness among Europeans. Such trust is crucial if the institutions are to foster willing support and “dual loyalty” toward both one’s own member state and the union as a whole, among both the citizenry and officials.

These contributions of the DCT add to the impact of the Convention on the Future of Europe, which proved an important and interesting arena for public deliberation. The relatively public nature of some of the discussions may help stimulate broader reflection among non-participants and contribute to overarching loyalty over time. But it is an open question whether such discussions are more likely to yield right outcomes and shifts toward more legitimate preferences. In addition, many have noted that the deliberations did not yield an agreement on the values of the European Union.

The DCT bolsters at least two institutional mechanisms for preference formation toward an “overarching loyalty”: interlocking federal arrangements and contestation among political parties, both aided by increased transparency. Such mechanisms for building trust are valuable and may be well worth the loss of effective and efficient problem wrought by increased transparency, interlocking arrangements and political parties.

Federalism

The DCT clarifies the constitutional split between sub-units and the overarching structure that is characteristic of federalism. It lays out areas of exclusive competence of EU institutions and other exclusive competences for the member states. This shift from unanimity as the default procedure for the Council of Ministers and the increased power of the European Parliament further underscores the fact that central decisions are to be beyond the control of any single sub-unit. This is not to deny that member states remain influential and exercise control, especially since they participate in central decision-making bodies—typical of “interlocking” federal arrangements.

For purposes of assessing the various balances of the DCT, there are several important implications of bringing federal thought to bear on the European political order. First, because the sub-unit authorities and the central authorities have different competences, they may also have different political values and objectives, sometimes referred to as “national interests” and “European interests.” The DCT is ambiguous on this point. It refers to the European interest without clarifying the proper division of responsibilities between the member states and EU institutions with regard to this interest. Second, comparative federalism warns of a higher level of ongoing constitutional re-evaluation concerning the constitution and its values and interpretation than in unitary political orders. Stabilizing mechanisms to prevent the disintegration of the political order and citizen disenchantment are thus more important. Third, a normative theory of legitimacy is required for assessing the attempts at balancing and for securing stable compliance in federations. Fourthly, scholars underscore the need to develop an overarching loyalty to the federation as a whole, if the political order is not to disintegrate. Citizens and political authorities must have dual political loyalties, both to their fellow nationals and their shared institutions, and an overarching loyalty to other citizens of the federation and to their common institutions. In this sense, federations do not seek to create “post-national” citizens with no political loyalty to their own member state. Instead they must engender and maintain political loyalty to the own member state as well as to the European-level regime, officialdom, and citizenry.

Compliance Among Countries

Trust and trustworthiness have become increasingly important among increasingly interdependent Europeans. Consider, for instance, how the change from unanimity to Qualified Majority Voting increased the need for trust and trustworthiness among individuals and among their representatives, requiring them to adjust or sacrifice their own interests and those of their voters for the sake of other Europeans. Unanimity has offered protection to citizens of any one member state to ensure that they would not be forced to take part in arrangements contrary to their own interests, and unanimity guarded against fears that others would not perform their share of complex cooperative ventures. But the multiple veto points that ensure stability easily lead to stagnation, preventing common action even when required. Many hold that this safety valve has been abused by some member states to extort unfair benefits from cooperation.

The DCT establishes a default legislative procedure, which requires only a qualified majority in the European Council and involves co-decision by the European Parliament and the Council together. This change removes the safety valve of unanimity. Yet stable popular support for such procedures requires a well-developed trust in other Europeans and officials. It is therefore unsurprising that the default procedure does not apply in a number of significant cases involving legislation on matters close to national sovereignty.

“Conditional compliers” comply with rules, institutions, and officials’ decisions if they believe them to be normatively legitimate and if they believe that most others will comply. Several requirements must be satisfied if such conditional compliers are actually going to comply. A positive contribution by the DCT in this regard is that it provides some treaty simplification and public access to legislative processes in the Council of Ministers and elsewhere. These are requirements of almost any plausible political theory, enhancing the institutions’ normative legitimacy. Conditional compliers must also believe that other actors will comply with the rules. Carefully crafted payoffs may enhance such beliefs, although checks on institutions, including democratic accountability, may affect institutional payoffs. The DCT secures this by increasing the powers of the European Parliament and by increasing transparency of the legislative process. On the other hand, Article I-46 of the DCT on participatory democracy is too indeterminate concerning who is to participate to count as a plausible check. Institutions can monitor compliance and sanction authorities or citizens who violate the rules. This may be particularly important to convince each of the compliance by others, since implementation of EU decisions is largely the responsibility of member states. Such monitoring is regulated in the DCT, which secures roles for member state governments—and even for national parliaments in Article III-161. Centralized sanctioning authority can boost the belief of citizens and politicians in each others’ compliance, but only if the central authorities can be trusted to actually sanction non-compliance, even the non-compliance of powerful sub-units. There is a risk that powerful states do as they will while weak member states do as they must. Some Austrians suspected this was the case when other countries reacted to the Freedom Party in government, and in more recent times the German and French rejection of the Stability and Growth Pact has also illustrated this condition. The effects on trust and trustworthiness thus remain to be seen.