Before discussing the notion that the European Union (EU) possesses a federal character, one has to define federalism (federal system).
A Federal system is a system of government where power and sovereignty are shared constitutionally between a central authority and subunits. The central authority retains primary sovereignty while the subunits (state, province etc.) retain a degree of autonomy. Examples of federal countries include Ethiopia, Germany, and USA etc.
The following paragraphs will discuss features that make the EU have a federal character in comparison to the USA, which is seen as the exemplar federal system before concluding that the EU is a unique supranational entity with both federal and confederal character .
A typical federal system has features such as division of territory/sovereignty, regional autonomy, federal supremacy, representation, codification of prerogative, participation in constitutional amendment, and a constitutional court .
Features that make the EU possess federal character:
1. Division of political authority/shared sovereignty.
Division of authority/shared sovereignty is the core of what makes an entity federal.
The EU is a union of sovereign European states who share sovereignty based on treaty. The union also possesses competences in policy sectors with exclusive jurisdiction in the area of Economic and Monetary Union while others are shared with Member States (MS), the other powers belong to MS as derived from the conferral of powers art 5(2) TEU, 2(1) TFEU art.3 & 4 TFEU additionally other powers have been offered by the decisions of the European Court for direct effect on citizens
On the other hand the USA is a federal republic characterised by division of sovereignty between national government and states and share responsibilities for almost all functions. Notably its system is focused on institutional autonomy with clear vertical separation of powers.
Competences are allocated according to policy sectors rather than policy functions as derived from the constitution Art. I (8) where enumeration of explicit powers belongs to federal government and all other powers are vested with the state (case laws)
In comparison to USA, EU's vertical division of power is unclear since it subunits i.e. Ms have powers and greater control over the central governing authority.
2. Federal supremacy
Federal supremacy should also be discussed because it concerns the idea that federal law has supremacy over law of the subunits. This feature ensures that there is cohesion and hierarchy legally otherwise if supremacy doesn’t exist the system ceases to be federal and consequently the subunits become fully autonomous from central authority.
Supremacy for EU law over member states law is based on the treaties and can be found in the Van Gend & Loos case (26/62) and the Costa Enel case (6/64).
On the other hand the United States also derives its supremacy from its constitution. Art. VI US Const....