Transcript Zasebnost na delovnem mestu v informacijski dobi

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: http://commons.wikimedia.oirg/wiki/File:Cudrefin-justice.jpg
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:
Federations
Autonomous provinces
Extraterritorial
arrangements/enclaves
Confederations
Regional arrangements
Condominia
Federacies /
Customs unions
assymetrical federations
Autonomous tribal
arrangements
Decentralized unions
Cultural or national
leagues
Consosicational
arrangements
Transf. feudal
arrangements
State-diaspora ties
Home-rule polities
(political or cultural)
The nature of the federal bargain

The “classical” account (e.g. Riker):


The “alternative” account (e.g. Stepan):


federations are the result of a “coming together”
federal bargain
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:




The models of federal arrangement:


principle of the division of competences
principle of the autonomy of the constituent units
principle of cooperation (and participation)
dual federalism v. cooperative federalism
The safeguards of federalism:

judicial v. political
So what of the European Union?
Source: http://upload.wikimedia.org/wikipedia/commons/8/84/Supranational_European_Bodies.png
The “federal” principles of the EU
General theory of federalism
European 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 cooperation
Principle 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) (C312/93 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.