Erin F. Delaney

The Promotion of 'SYMMETRICAL' European Citizenship: A Federal Perspective

This paper contributes to the ongoing debate about symmetrical citizenship at the European level by searching out new areas for consideration, in particular the judicial politics of European citizenship. Using a federal comparative perspective, it sheds light on the potential role the European Court of Justice (ECJ) could play in promoting symmetrical citizenship through the comparison with the experience of the early United States and of its Supreme Court. This paper proceeds to discuss why the ECJ has not acted in a way similar to that of the US Supreme Court, and concludes by offering some recommendations for a possible role of the ECJ as a critical agent in the promotion of Union citizenship beyond the economic sphere.

Managing in a Federal System without an 'Ultimate Arbiter': Kompetenz- Kompetenz in the EU and the Ante-bellum United States

Although an ‘ultimate arbiter’ is generally accepted as a necessary element of a federation, emerging federal systems are often unable to agree on who should play the role. Legally, the debate surrounds the right to monitor the limits of federal and state competences – or the right to Kompetenz-Kompetenz. This article looks at how the early United States and the European Union managed without an ultimate arbiter and assesses the differing priorities of the two systems. It then examines how the Constitutional Treaty might change the delicate balance wrought by the European Court of Justice in Europe, and what lessons, if any, the early American experience might offer.

Introduction: Europe's constitutional future – Federal lessons for the European Union

For over half a century the European Union has moved, seemingly inexorably, towards an apparently ‘unknown destination’ (Shonfield, 1973), without the nature of that destination becoming any clearer. Repeated treaty reforms have attempted to bring about ‘ever closer union’ among the peoples of Europe, and member states cooperate in increasing numbers of policy areas, yet they can still not agree upon what the endstate of European integration is or should be. While some idealists, and many sceptics, see the EU as moving in a ‘federal direction’, most commentators prefer to view the EU as a sui generis experiment, not susceptible to characterization in the standard language of political science or international relations. Yet, as Kathleen McNamara has argued, focusing on the uniqueness of the EU runs the risk of missing ‘the potential leverage earlier empirical cases might provide’ (McNamara, 2003: 254). The European Union can be seen as a system of shared powers, if not yet as a fullyfledged federation, and may thus have something to learn from federal models, not least concerning the vital political questions: ‘Who governs?’ and ‘Over what?’; questions which, to date, the EU has seemed ill-equipped to answer. As Tanja Börzel argues in her article, ‘What can Federalism teach us About the European Union?’, ‘While traditional theories of International Relations and European integration have difficulties capturing the multi-level nature of the emerging European polity, the constitutional language of federalism is more helpful in analysing and discussing the ways in which the division of power is organized among the different levels of government in the EU’ (Börzel, p.246). Using the prism of federalism, this volume is designed to provide comparative examples and lessons for the European Union’s ongoing challenges of sharing and dividing power, both in terms of the formal division of competences and the way federal entities develop in practice. It analyses the division of competences in the