The Federal Order and EU Law Matej Accetto European Constitutional Law 6 November 2012

The Scales of Lady Justice Should they be tipped or balanced? Source:

Federalism – the traditional take Federation a sovereign state existing in parallel with the units with (excl.) int’l legal personality federal constitution, units usually no veto/nullification a link between federal power and individuals federal citizenship Confederation  a weak association of sovereign constituent units without own sovereignty  treaty-based powers, decisions usu. unanimous  obligations incumbent on states, usu. not individuals  no confederal citizenship

Federalism – the political reality A variety of federal arrangements in the world: FederationsAutonomous provincesExtraterritorial arrangements/enclaves ConfederationsRegional arrangementsCondominia Federacies / assymetrical federations Customs unionsAutonomous tribal arrangements Decentralized unionsCultural or national leagues Consosicational arrangements Transf. feudal arrangements State-diaspora tiesHome-rule polities (political or cultural)

The nature of the federal bargain The “classical” account (e.g. Riker):  federations are the result of a “coming together” federal bargain The “alternative” account (e.g. Stepan):  federations may also be the result of a “holding together” federal bargain But in the daily operation of a federal order... ... there is a need to balance the centrifugal & centripetal forces

The safeguards of federalism The fundamental principles of federalism:  principle of the division of competences  principle of the autonomy of the constituent units  principle of cooperation (and participation) The models of federal arrangement:  dual federalism v. cooperative federalism The safeguards of federalism:  judicial v. political

So what of the European Union? Source:

The “federal” principles of the EU General theory of federalismEuropean Union Principle of the division of competences Principle of the autonomy of the constituent units Principle of cooperation General theory of federalismEuropean Union Principle of the division of competences Principle of conferral (Art. 5(1) EU) Principle of the autonomy of the constituent units Principle of subsidiarity (Art. 5(2) EU) Principle of cooperationPrinciple of sincere cooperation (Art. 4(3) EU)

Principles delimiting legislative competences – Art. 5 TEU  Art. 5(2): Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. […]  Art. 5(3): Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level. […]  Art. 5(4): Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties. […]

The division of legislative competences between the EU and the Member States Exclusive competence of the EU: areas which MS may no longer regulate (eg. common customs tariff, monetary policy of the eurozone); Shared competence of the EU and MS: MS may regulate until and insofar as an area is not regulated by EU law (eg. agriculture, fisheries, in general most of the areas); Complementary competence of the EU: EU may only complement or support national measures (eg. education, sport, culture); Excluded competence (of the EU): in accordance with the principle of conferral, EU is not competent to act in areas which have not been conferred upon it by the Treaty.

The operation of the principle of subsidiarity How to ensure the principle is respected?  Subsidiarity Working group (2002): the principle of subsidiarity is a principle of an essentially political nature, implementation of which involves a considerable margin of discretion for the institutions (considering whether shared objectives could “better” be achieved at European level or at another level), monitoring of compliance with that principle should be of an essentially political nature and take place before the entry into force Treaty of Lisbon (protocols 1&2): Early warning mechanism involving the national parliaments Possibility of an ex-post review by the ECJ (but limited in practical terms)

The principle of loyalty / sincere cooperation Art. 4(3) EU:  Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.  The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union.  The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives.

Applying the principle of loyalty / sincere cooperation as a general principle of EU law A number of concrete duties for national courts: The duty to disapply a national rule that could limit the application of EU law (106/77 Simmenthal) The duty to use or create powers to ensure judicial protection of EU law rights (C-213/89 Factortame) The duty to apply EU law of their own motion (ex offo) (C- 312/93 Peterbroek) The duty to award damages against MS for infringements of EU law (C-6 and 9/90 Francovich) The duty of sympathetic interpretation of national law (14/83 Von Colson and C-106/89 Marleasing)

The magical formula of supranationalism Direct Effect + Supremacy = Supranational Legal Order But… enter the Member States! (starring the German Federal Constitutional Court)

For as long as… take 1 Internationale Handelsgesellschaft (Solange I), BVerfGE 37, 271 (1974): As long as the integration process has not progressed so far that Community law receives a catalogue of fundamental rights decided on by a parliament and of settled validity, which is adequate in comparison with the catalogue of fundamental rights contained in the Basic Law, secondary Community law will still be reviewed according to standards of the Basic Law.

The original position of the ECJ 1/58, Stork v. High Authority, [1959] ECR 43: …Under Article 8 of the Treaty the High Authority is only required to apply Community law. It is not competent to apply the national law of the Member States.... Consequently, the High Authority is not empowered to examine a ground of complaint which maintains that, when it adopted its decision, it infringed principles of German constitutional law.

The position reinforced 36, 37, 38 in 40/59, Geitling v. High Authority, [1960] ECR 423: … Moreover Community law, as it arises under the ECSC Treaty, does not contain any general principle, express or otherwise, guaranteeing the maintenance of vested [human] rights.

And then the quiet shift 29/69, Stauder, [1969] ECR 419: … Interpreted in this way the provision at issue contains nothing capable of prejudicing the fundamental human rights enshrined in the general principles of Community law and protected by the Court.

And yet five years later the Germans say solange – so what is the problem? The difficult truths about human rights: No human right is absolute  Limited with the rights of others  Content (or scope) based on societal arrangements Difficult to compare different standards

For as long as… take 1 Internationale Handelsgesellschaft (Solange I), BVerfGE 37, 271 (1974): As long as the integration process has not progressed so far that Community law receives a catalogue of fundamental rights decided on by a parliament and of settled validity, which is adequate in comparison with the catalogue of fundamental rights contained in the Basic Law, secondary Community law will still be reviewed according to standards of the Basic Law.

For as long as… take 2 Wunsche Handelsgesellschaft (Solange II), BVerfGE 73, 387 (1986): As long as the European Communities, in particular European Court case law, generally ensure effective protection of fundamental rights … which is to be regarded as substantially similar to the protection of fundamental rights required unconditionally by the Constitution … the Federal Constitutional Court will no longer exercise its jurisdiction to decide on the applicability of secondary Community legislation … and no longer review such legislation by the standard of the fundamental rights contained in the Basic Law.