Federal Constitutionalism/ European Constitutionalism in Comparative Perspective

Abstract: There has been a long-standing debate over the question whether the European Community is best understood as an international organisation founded upon a series of international treaties, a supranational organisation that is essentially constitutional in nature, or some kind of sui generis entity that partakes of both sets of characteristics.

In connection with this debate, the European Community has often been compared to a variety of established federal-states, such as the United States, Canada, Germany and Switzerland. In these comparisons, while a number of similarities between federations and the institutions of the European Community have been observed, a sharp distinction has almost always been drawn between the supposed
foundations of federal constitutions in the will of ‘the people’ and the establishment of the European Community upon the founding treaties.

Further, in many of the comparisons, it has been assumed that it is the nature of the European Community that is in question, whereas the nature of the federal-state is straightforward and uncontroversial. For this reason,
it is generally supposed that the established federal-states will shed light on the problematic nature of the European Community, and not vice versa.

0However, this essay argues that the constitutional foundations of federal states are far from uncontroversial and in fact display a number of features that are uncomfortably similar to the institutional foundations
of the European Community. Given that the problematic and ambiguous relationship between treaty and constitution has been highlighted by the debate over the European Community, it is argued that comparisons between the European Community and the modern federal-state can shed significant light not only upon the former but also upon the latter.