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European Constitutional Law and Fundamental Rights > 2 - Structure of the Union: Federal Perspectives > Flashcards

2 - Structure of the Union: Federal Perspectives Flashcards

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1
Q

What is important with respect to the topic ‘federal perspectives’?

A

Semantics bc no universally agreed definition of ‘federalism’

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2
Q

What is the original name & meaning of federal? (3)

A

1/ foedus

2/ contractual relations btwn sovereign States

3/ so an international concept

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3
Q

What do States as ‘contracting partners’ remain?

A

Sovereign

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4
Q

What document laid the ground for the international tradition regarding federalism?

A

1777 Articles of Confederation and Perpetual Union (US)

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5
Q

What is the US tradition regarding federalism? (3)

A

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’

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6
Q

What is the European tradition regarding federalism? (5)

A

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

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7
Q

Who were 2 early critics of European tradition of federalism?

A

1/ Hans Kelsen

2/ Carl Schmitt

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8
Q

What are 2 main arguments of Kelsen?

A

1/ degree of (de)centralisation is difference btwn federation and confederation

2/ treaty & constitution not mutually exclusive

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9
Q

What is main argument of Carl Schmitt? (2)

A

1/ sovereignty question must remain suspended

2/ if answered, entity becomes either a State or an IO

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10
Q

What is the pb with the theory of EU as a sui generis entity? (2)

A

1/ this is a non-theory, negatively defining what EU is not

2/ not sure whether federalism provides a positive definition though

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11
Q

Can there be federalism beyond the State? (4)

A

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

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12
Q

What is a possible definition of federalism? (4)

A

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

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13
Q

How does self rule for the EU MS materialize?

A

Division of competences

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14
Q

How does shared rule materialize in the EU? (2)

A

1/ shared powers

2/ composition and operation of EU institutions (double mandate of MS actors)

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15
Q

What are the 5 levels at which we can see shared rule in the EU? How is this also called?

A

Functional dimension of federalism

1/ Gvt

2/ legislature

3/ parliament

4/ judiciary

5/ citizenship

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16
Q

What is the descriptive side of federalism? (2)

A

1/ means to nation building

2/ functional means to achieve common values and objectives

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17
Q

What is the normative side of federalism? (2)

A

1/ means to keep in check a component part

2/ means to keep the centre in check

18
Q

A frequent critique of federalism is based on…?

A

Democratic constitutionalism

19
Q

What is a mainstream assumption of federalism? (4)

A

1/ peoples

2/ sovereigns

3/ constitutions

4/ may coexist on the same territory

20
Q

What is a central argument of the democratic constitutionalism critique? (3)

A

1/ no European demos?

2/ so no European constitution

3/ hence no federal source of authority

21
Q

How can one criticise the democratic constitutionalism critique?

A

It often takes a monistic constitutional view

22
Q

What is an important ruling with respect to democratic constitutionalism theory?

A

Lissabon Urteil (BVerfG)

23
Q

What is a ‘federal reading’ of Opinion 2/13? (2)

A

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

24
Q

What did ECJ decide it’ll be the judge of in Opinion 2/13? (3)

A

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

25
Q

What are the characteristics of constitutional pluralism with respect to federalism? (2)

A

1/ heterarchical system

2/ in which sovereignty question remains suspended

26
Q

What is federalism agnostic to?

A

The quantitative DP

27
Q

What must self rule be in a federation and why? (2)

A

1/ safeguarded

2/ necessary for recognition of diversity

28
Q

What are gnl principles in EU law used as safeguards for self rule? (3)

A

1/ conferral

2/ subsidiarity & proportionality

3/ protection of constitutional identity

29
Q

What are institutional safeguards of self rule in the EU? (2)

A

1/ unanimity

2/ Article 6 TFEU (nucleus of MS power?)

30
Q

What are the 2 doctrinal families regarding shared rule within federal systems?

A

1/ dual federalism

2/ cooperative federalism

31
Q

Characteristics of dual federations? (2)

A

1/ strict separation of legislative and executive functions

2/ emphasis not on ‘shared rule’

32
Q

Characteristics of cooperative federations? (3)

A

1/ SP is less strict

2/ states are actors in the centre

3/ legislative, executive and judicial functions are shared

33
Q

Examples of dual federations? (2)

A

1/ BE

2/ US

34
Q

Examples of cooperative federations? (2)

A

1/ GER

2/ EU?

35
Q

How does cooperative federalism manifest itself in the EU? (2)

A

1/ shared rule

2/ both separate & joint legal system, administrations, judiciary

36
Q

Characteristics EU shared legal system? (2)

A

1/ shared powers (Art. 4 TFEU)

2/ MS legal norms can find their way into EU legal norms

37
Q

Is there a shared democracy within the EU? (2)

A

1/ yes: Art. 10 TEU (representative democracy)

2/ no: BVerfG in Lissabon Urteil (EP no substitute for national parliament)

38
Q

Is there a shared judiciary in the EU?

A

Cf national and EU mandate for every national court

39
Q

Is there a shared executive in the EU? (2)

A

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

40
Q

What type of instrument could directives be considered as?

A

Instruments of cooperative federalism?

41
Q

Why can directives be approached as instruments of cooperative federalism? (4)

A

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

European Constitutional Law and Fundamental Rights (10 decks)

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