From Dual to Cooperative Federalism The Changing Structure of European Law

by Schutze, Robert

• ISBN13: 9780199238583
• ISBN10: 0199238588
• Format: Hardcover
• Copyright: 2009-12-20
• Publisher: Oxford University Press

Summary

What is the federal philosophy underlying the law-making function in the European Union? The federal principle represents a constitutional structure which attempts to find unity in diversity. In federal structures, authority is divided between a centre and the periphery. The two mostinfluential manifestations of the federal principle emerged under the names of dual federalism and cooperative federalism in the constitutional history of the United States of America. While the two variants of federalism share the federal idea of duplex regimen, they differ in how the two levels ofgovernment relate to each other. Which federal model best characterizes the European Union? After an analysis of the federal principle in constitutional history, three lines of arguments are pursued to demonstrate the evolution of the European legal order from a dual federalism towards a cooperative federalist philosophy. The threearguments focus on the scope of the Community's law-making powers in general; the scope of the Community's exclusive powers; and the extent of legislative pre-emption under the Community's shared powers. This transition from dual to cooperative federalism is viewed as a positive development that will benefit both levels of government - the European Union and the Member States - since the ideal of structuring the law-making function according to the problem at hand is more flexible and efficient thanthe idea of mutually exclusive spheres of power. The mechanism of common federal standards supplemented by territorially differentiated national solutions best expresses the idea of unity in diversity.

Author Biography

Dr. Robert Schutze is a lecturer in law at Durham University.

Table of Contents

Table of Cases	p. xvii
Table of Legislation	p. xxv
Abbreviations	p. xxxv
Introduction: Corning to Constitutional Terms	p. 1
General Part Federalism in America and Europe
Federal Tradition(s) and the European Union	p. 13
Introduction: Federalism and (Inter)national Law	p. 14
The Federal Principle: Three Legal Traditions	p. 15
The Classic Tradition: The 'International'Format of the Federal Principle	p. 16
The American Tradition: The 'Mixed' Format of the Federal Principle	p. 22
The European Tradition: The 'Nationall' Format of the Federal Principle	p. 30
Conceptual Polarization: 'Confederation' versus 'Federation'	p. 31
Early Criticism: The European Tradition and the (missing) Federal Genus	p. 36
The European Union: American and European Perspectives	p. 40
The 'Supranational' Europe: A (Very) Brief History	p. 41
The European Union in the Light of the American Tradition	p. 47
The Foundational Dimension: Europe's 'Constitutional Treaty'	p. 48
The Institutional Dimension: A European Union of States and People(s)	p. 52
The Functional Dimension: The Division of Powers in Europe	p. 56
Overall Classification: The European Union on Federal 'Middle Ground'	p. 58
The European Union in the Light of the European Tradition	p. 58
Posing the Sovereignty Question: The 'Maastricht Decision'	p. 60
Europe's Statist Tradition Unearthed: Three Constitutional Denials	p. 63
Conclusion: The European Union as a 'Federation of States'	p. 69
Federal Philosophies and the Structure of American Law	p. 75
Introduction: Federal Philosophies and Constitutional Structures	p. 76
The 'New Nationalism': The Decline of Constitutional Exclusivity	p. 80
Expanding the Federal Universe: The Decline of State 'Police Powers'	p. 84
Changing Nature: From Exclusive to Concurrent Power	p. 88
The 'New Federalism': The Decline of Legislative Exclusivity	p. 94
From Concurrent to Shared Powers: The Decline of 'Classic' Pre-emption	p. 96
The Rise of the Modern Pre-emption Framework	p. 98
Changing Judicial Philosophies: The 'New Federalism'	p. 101
Changing Nature: From Constitutional to Legislative 'Pre-emption	p. 105
Excursus-The Foreign Affairs 'Exception'	p. 108
Foreign Affairs and the Treaty-Making Power: Dual Federalism Constitutionalized	p. 109
Constitutional Certainties: The Unitary Scope of the Federal Treaty Power	p. 110
Constitutional Ambivalences: The Treaty-Making Powers of the States	p. 113
Foreign Affairs and Internal Legislation: Dual Federalism De-Constitutionalized?	p. 116
Conclusion: The Changing Structure of American Law	p. 122
Special Part The Changing Structure of European Law
The Decline of Constitutional Exclusivity	p. 129
Introduction: Federalism and Exclusive Powers	p. 130
Europe's Expanding Sphere: The Decline of State 'Police Powers'	p. 132
Europe's 'Necessary and Proper Clause': The Scope of Article 308 EC	p. 133
Internal Limits: Legislation Necessary in the Course of the Common Market	p. 135
External Limits: The 'Constitutional Identity' of the European Community	p. 139
Europe's 'Commerce Clause(s)': The Scope of Articles 94 and 95 EC	p. 143
Internal Limits: Harmonization of National Laws for the Internal Market	p. 144
External Limits: Constitutional 'Saving Clauses' for State 'Police Powers'?	p. 149
The European Union and the Problem of Competence-Competence	p. 151
Europe's Contracting Sphere: The Decline of Federal Exclusive Powers	p. 156
Dual Federalism Constitutionalized: The Genesis of Exclusive Powers	p. 157
Judicial Genesis no 1: The Common Commercial Policy	p. 158
Judicial Genesis no 2: The Conservation of Biological Resources of the Sea	p. 162
Ontological Deformations: Restrictive Interpretation and 'Partial Exclusivity'	p. 167
The Delegation Doctrine: How Exclusive are Europe's 'Exclusive' Powers?	p. 173
Delegation within the CCP: From Specific Authorization to Carte Blanche	p. 175
Delegation within the Conservation Policy: Cooperative Federalism at Sea?	p. 179
Conclusion: European Federalism and Exclusive Powers	p. 184
The Decline of Legislative Exclusivity	p. 189
Introduction: European Federalism and Shared Powers	p. 190
The Commerce Clause(s): Harmonization in the Internal Market	p. 192
The Two Dimensions of European Legislation: Scope and Intensity	p. 194
Harmonization under the 'Old Approach': Shared Powers and Dual Federalism	p. 199
Harmonization under the 'New Approach': The Rise of Cooperative Federalism	p. 205
Reducing Europe's Scope: Cassis de Dijon and the Commission's 'New Strategy'	p. 205
The 'New Approach' to Harmonization: From Vertical to Horizontal Legislation	p. 207
The Common Agricultural Policy: A Policy Unlike Any Other?	p. 215
The 'Old' CAP: Common Market Organizations as Vertical Legislation	p. 217
The Exclusionary Effect of CMOs: Between 'Field' and 'Obstacle' Pre-emption	p. 220
National Caveats: Delegated Community Powers or Autonomous State Powers?	p. 225
The 'New' CAP: From Vertical to Horizontal Legislation	p. 230
Restructuring the CAP: From Product to Producer Support	p. 231
The Rise of Cooperative Federalism: 'Breaking up' Occupied Fields?	p. 235
Conclusion: European Federalism and Shared Powers	p. 237
Cooperative Federalism Constitutionalized	p. 241
Introduction: The Constitutional Safeguards of Cooperative Federalism	p. 242
The Principle of Subsidiarity: A Political Safeguard of Federalism	p. 243
Subsidiarity De Lege Lata: A Textual Genealogy	p. 247
Constitutional Clarifications: From Edinburgh to Amsterdam	p. 251
Judicial Clarifications: Subsidiarity and Proportionality	p. 253
Subsidiarity De Lege Ferenda: Strengthening the Safeguards of Federalism	p. 256
Strengthening the Political Safeguards of Federalism	p. 257
Strengthening the Judicial Safeguards of Federalism	p. 261
Complementary Competences: A Judicial Safeguard of Federalism	p. 265
Environmental Policy: A Constitutional Commitment to Minimum Harmonization	p. 270
Article 175 EC: Soft or Hard Constitutional Frame?	p. 272
The Scope of Article 176 EC: Cutting Across the Treaty?	p. 277
Public Health: Novel Constitutional Techniques	p. 279
Conclusion: The Constitutional Safeguards of Cooperative Federalism	p. 284
Excursus: A Foreign Affairs 'Exception'?	p. 287
Introduction: The European Union and Foreign Affairs	p. 288
Europe's International Powers: Dual Federalism in the External Sphere	p. 290
Parallel External Powers: Existence and Scope	p. 291
From ERTA to the 'Triumph of Parallelism'	p. 292
Towards a Theory of Implied External Powers: Three Conceptions	p. 297
Parallel External Powers: Essence and Exercise	p. 303
The Theory of Subsequent Exclusivity: The ERTA Doctrine	p. 305
Political Safeguards: Mixed Agreements as a Federal Technique	p. 308
Theory and Practice: Towards Cooperative Federalism?	p. 311
Constitutional Theory: The Slowly Emergent Doctrine of Community Supremacy	p. 312
Normative Ambivalences: International Agreements between (all) Member States	p. 313
A Flight into Dual Federalism: Member States' Agreements with Third States	p. 320
Constitutional Practice: The ERTA Doctrine and Cooperative Federalism	p. 329
Conclusion: The European Union and Foreign Affairs	p. 340
Conclusion: Europe's Gemeinweg towards Cooperative Federalism	p. 345
Bibliography	p. 353
Index	p. 381
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