2 - Structure of the Union: Federal Perspectives Flashcards
What is important with respect to the topic ‘federal perspectives’?
Semantics bc no universally agreed definition of ‘federalism’
What is the original name & meaning of federal? (3)
1/ foedus
2/ contractual relations btwn sovereign States
3/ so an international concept
What do States as ‘contracting partners’ remain?
Sovereign
What document laid the ground for the international tradition regarding federalism?
1777 Articles of Confederation and Perpetual Union (US)
What is the US tradition regarding federalism? (3)
1/ 1787 Constitution split the atom of sovereignty
2/ middle ground btwn international and national model
3/ old term ‘federal’ hijacked by new concept of 1787 => 1777 Constitution became ‘confederal’
What is the European tradition regarding federalism? (5)
1/ American tradition of shared sovereignty never got stronghold in Europe
2/ 19th century characterised by an obsession with indivisible sovereignty
3/ mixed forms considered counter-nature
4/ federation = federal State, i.e. a decentralised unitary State
5/ confederation = creature of IL, not a State
Who were 2 early critics of European tradition of federalism?
1/ Hans Kelsen
2/ Carl Schmitt
What are 2 main arguments of Kelsen?
1/ degree of (de)centralisation is difference btwn federation and confederation
2/ treaty & constitution not mutually exclusive
What is main argument of Carl Schmitt? (2)
1/ sovereignty question must remain suspended
2/ if answered, entity becomes either a State or an IO
What is the pb with the theory of EU as a sui generis entity? (2)
1/ this is a non-theory, negatively defining what EU is not
2/ not sure whether federalism provides a positive definition though
Can there be federalism beyond the State? (4)
1/ one could say applying federalism to the EU is ont bridge too far
2/ federalism commonly used for States
3/ one however has to distinguish federal system/State
4/ big question is whether federalism and Constitution can be liberated from statehood
What is a possible definition of federalism? (4)
1/ a system
2/ based on self rule and shared rule
3/ with at least 2 levels of Gvt
4/ who each operate on basis of their own constitution
How does self rule for the EU MS materialize?
Division of competences
How does shared rule materialize in the EU? (2)
1/ shared powers
2/ composition and operation of EU institutions (double mandate of MS actors)
What are the 5 levels at which we can see shared rule in the EU? How is this also called?
Functional dimension of federalism
1/ Gvt
2/ legislature
3/ parliament
4/ judiciary
5/ citizenship
What is the descriptive side of federalism? (2)
1/ means to nation building
2/ functional means to achieve common values and objectives
What is the normative side of federalism? (2)
1/ means to keep in check a component part
2/ means to keep the centre in check
A frequent critique of federalism is based on…?
Democratic constitutionalism
What is a mainstream assumption of federalism? (4)
1/ peoples
2/ sovereigns
3/ constitutions
4/ may coexist on the same territory
What is a central argument of the democratic constitutionalism critique? (3)
1/ no European demos?
2/ so no European constitution
3/ hence no federal source of authority
How can one criticise the democratic constitutionalism critique?
It often takes a monistic constitutional view
What is an important ruling with respect to democratic constitutionalism theory?
Lissabon Urteil (BVerfG)
What is a ‘federal reading’ of Opinion 2/13? (2)
1/ ECJ held EU is precluded from being a State under IL (1st time)
2/ however, EU law is also autonomous vis-a-vis national law and IL
What did ECJ decide it’ll be the judge of in Opinion 2/13? (3)
1/ co-respondent mechanism (DP btwn EU-MS)
2/ apportionment of responsibility
3/ exclusivity of ECJ on EU law issues in MS-MS and MS-EU relations
What are the characteristics of constitutional pluralism with respect to federalism? (2)
1/ heterarchical system
2/ in which sovereignty question remains suspended
What is federalism agnostic to?
The quantitative DP
What must self rule be in a federation and why? (2)
1/ safeguarded
2/ necessary for recognition of diversity
What are gnl principles in EU law used as safeguards for self rule? (3)
1/ conferral
2/ subsidiarity & proportionality
3/ protection of constitutional identity
What are institutional safeguards of self rule in the EU? (2)
1/ unanimity
2/ Article 6 TFEU (nucleus of MS power?)
What are the 2 doctrinal families regarding shared rule within federal systems?
1/ dual federalism
2/ cooperative federalism
Characteristics of dual federations? (2)
1/ strict separation of legislative and executive functions
2/ emphasis not on ‘shared rule’
Characteristics of cooperative federations? (3)
1/ SP is less strict
2/ states are actors in the centre
3/ legislative, executive and judicial functions are shared
Examples of dual federations? (2)
1/ BE
2/ US
Examples of cooperative federations? (2)
1/ GER
2/ EU?
How does cooperative federalism manifest itself in the EU? (2)
1/ shared rule
2/ both separate & joint legal system, administrations, judiciary
Characteristics EU shared legal system? (2)
1/ shared powers (Art. 4 TFEU)
2/ MS legal norms can find their way into EU legal norms
Is there a shared democracy within the EU? (2)
1/ yes: Art. 10 TEU (representative democracy)
2/ no: BVerfG in Lissabon Urteil (EP no substitute for national parliament)
Is there a shared judiciary in the EU?
Cf national and EU mandate for every national court
Is there a shared executive in the EU? (2)
1/ at political level, heads of State & Gvt, ministers are part of MS and EU institutions
2/ at administrative level, actions are based in EU law
What type of instrument could directives be considered as?
Instruments of cooperative federalism?
Why can directives be approached as instruments of cooperative federalism? (4)
1/ MS have ‘choice of form and methods’ to implement (Art. 288 TFEU)
2/ not clear which normative concept underlies EU directives (federal or confederal instrument?)
3/ directives give shape to pcple of proportionality
4/ MS and EU should fill legislative space jointly
