The European Community as a Federal State

INDEX

TABLE OF ABBREVIATIONS

0. ABSTRACT

1. INTRODUCTION
1.1. THE SUBJECT
1.2. THE METHODOLOGY

2.LEGAL AND STRUCTURAL ELEMENTS OF A FEDERAL STATE8
2.1. WHAT MAKES A STATE FEDERAL? THEORY, PRACTICE AND PROBLEMS OF COMPARISON
2.2. WHAT MAKES A STATE A STATE?

3.THE EC AND THE STRUCTURAL ELEMENTS OF A STATE
3.1. WHOSE TERRITORY IS IT, ANYWAY?
3.2. THE ORIGINAL POWER OF A STATE TO RULE
3.2.1. LEGISLATIVE POWER – DEFINING A SUPREME LEGAL ORDER
3.2.2. MORE ON LEGISLATIVE POWER – THE SUBSIDIARITY PRINCIPLE
3.2.3. JUDICIAL POWER - ECJ, NATIONAL COURTS AND THE QUESTION OF SUPREMACY
3.2.4. EXECUTIVE POWER - GOVERNED BY THE COMMISSION OR A GOVERNED COMMISSION?
3.2.5. ORIGINAL POWER - DO STATES MAKE TREATIES OR DO TREATIES MAKE A STATE?
3.3. PERMANENT POPULATION: – SEARCHING THE CITIZENS OF EUROPE

4.THE EC AND THE LEGITIMISTIC ELEMENTS OF A FEDERAL STATE33
4.1. STATES RULED BY THE LAW
4.1.1. THE PRINCIPLE
4.1.2. LAW RULED BY RIGHTS - THE GUARANTEE OF HUMAN AND FUNDAMENTAL RIGHTS
4.2. THE SEPARATION OF POWERS
4.3. LEGITIMIZED BY THE DEMOS – HOW MUCH PARLIAMENT DO YOU NEED?

5.THE EC AND ITS POLITICAL POWER43
5.1. MUST A FEDERATION HAVE A CORE?
5.1.1. A COMMON CURRENCY
5.1.2. A COMMON DEFENCE
5.1.3. A COMMON FOREIGN POLICY
5.1.4. THE FEDERATION’S STONE
5.2. THE EC – AN EMPTY SHELL?
5.2.1. ALL CURRENCIES ARE EQUAL BUT ONE CURRENCY IS MORE EQUAL
5.2.2. THE CFSP – A DIFFICULT BIRTH STILL IN PROGRESS
5.2.3. THE FILLING OF THE SHELL

6. A STATE’S IDENTITY51
6.1. SEARCHING FOR A COMMON CULTURE
6.2. CULTURAL DIVERSITY – ENEMY OR JUSTIFICATION OF FEDERAL SYSTEMS?

7.CONCLUSION - SUIS GENERIS OR YES IT COULD, BUT IT MUST NOT (YET)

BIBLIOGRAPHY

NOTES

TABLE OF ABBREVIATIONS

illustration not visible in this excerpt

0. ABSTRACT

The thesis of this work is that the European Community is a self-standing federal state with inadequate political power, as the Member States keep essential core competences in the fields of Foreign, Defence and Monetary Policy to themselves or limit them to the intergovernmental “pillars” of the European Union. Although it is not yet adequately filled with political competences, the structural shell of the European Community is suitable to fulfil all tasks that should, in the best interest of all Member States, be fulfilled on the federal level. Today’s European Community has developed the three elements of a state (Territory, Original Power and Permanent Population). The European Community has outgrown the former restrictions and limitations of e.g. the direct effectiveness of the legal order, the “originality” and quality of legisla­tive, executive and judiciary power and of the self-standing quality of the Citizenship of the Union. A comparison with the structural, legal and legitimistic elements of the German and the Canadian federations shows that the Community’s system has adopted very similar, sometimes even almost identical, features. The state quality, which is regarded as a “given” when it comes to Germany or Canada, should there­fore no longer be denied to the Community. Still not vanished but very much reduced is the Community’s traditional “democratic deficit”. The competences of the Euro­pean Parliament have been significantly expanded and the Community also found other ways of civil society’s participation. Besides that it adopted the doctrine of “checks and balances” of separated state powers. The transfer of political powers and competences has, however, not kept pace with the structural development. Es­sential areas of Foreign, Defence and Monetary Policy are still a prerogative of the Member States. As a result the European Federal State cannot use its potential, e.g. its enormous “bargaining power” on the international stage or the full capacity of the internal market’s and single currency’s economic power to produce economical and political surplus beneficial for all Member States. Therefore the key competences should be transferred to the Community’s supreme legislative competence under full responsibility of the European Parliament. This process should not be hindered by the frequently mentioned lack of inner cohesion in the Community due to a lack of “cultural identity”. A comparison with Germany and Canada shows that a unified cul­tural identity is not a “condition sine qua non” of a federal state.

1. INTRODUCTION

1.1. THE SUBJECT

Based on the thesis that the European Community [EC] is a federal state with all le­gal and structural elements, but without the necessary political power I will analyse the EC’s structure by applying the legal and legitimistic criteria of a state.

The EC can be regarded as a state not yet “fully grown”, although the Member States laid the foundation for a European federal state already in the treaties of Rome (Brunn, 2005 p. 19 ff.). As far as “the formal constitution (and) the explicit rules and procedures for common decision-making” go, the EC already is a federal state, but as for “the attributions of legal competences” (Kohler-Koch, 1997), too much is still in national hands.

Most scientists do not see the EC as a federal state (Nugent, 2006 p. 550 ff.) but as a system “sui generis” (Ward, 2003 p. 25) neither a real federal state nor an interna­tional organization (Jenson, et al., 2003). I think that the EC has developed into a specific model of a federal state. The analysis under the legal and legitimistic ele­ments of state theory should produce some further insights in the specific nature of the “EC-version” of a federal state, while the analysis of its political powers shows its “real life” limitations.

To me the question whether the EC is a federal state in the legal and the legitimistic sense is an essential one. If it is a state, it can and should have all political compe-tences which should reasonably be in federal responsibility, for the greater good of the Member States and the citizens. If it isn’t a state competences must necessarily be kept on the national level, as the EC would not have the structural and legal abil­ity to adequately deal with the competences transferred to it.

I will focus almost exclusively on the EC because, until the Lisbon treaty comes into force, the European Union [EU] has no legal personality (Ward, 2003 p. 42) and therefore cannot be a state. This is widely accepted in literature. E.g. Hans Georg Fischer discusses the possibility that an EU-legal personality can be derived from its responsibilities, although it is explicitly given to the EC (Art. 281 TEC) but not to the Union. He concludes, however, that the EU does not have a legal personality but is an intergovernmental organization, albeit one with far reaching powers. (Fischer, 2001 pp. 28-29).

As soon as the Lisbon Treaty comes into force the EC’s legal personality is ex­panded to the EU. Then the question of “federal state potential” on the one hand and limited political power on the other will even be more pressing, as two “pillars” of the EU are regarded as fully “intergovernmental” while only the EC is seen as able to have a self standing legislative, executive and judiciary.

1.2. THE METHODOLOGY

As the federal nature of the EC lies more in its legal structure than in its political power (Buxbaum, 1988 p. 141), the main part of this work will be a classification of the EC under the legal and legitimistic criteria of a federal state compared with Ger­many and Canada. The value of a comparison with the German system is obvious. However, there is a tendency to see Germany as “the” federal role model, which can bias an analysis of the EC’s structure. Therefore I will compare the EC also with Canada, particularly as the Canadian and EC multi-layer systems of deciding and implementing policies show significant similarities (Broschek, et al., 2004 p. 98).

A fully comprehensive analysis of the subject under all relevant issues of theory would have to include not only the accepted definitions and state theories but also the philosophical debates behind them. This means e.g. the “Weimar Debate” of Hans Kelsen, Carl Schmitt, Hermann Heller, Rudolf Smend and others (Fenske, 2000) as well as the conceptual theories of a state like e.g. the “theory of power” or Hans Kelsen’s purely legalistic approach (Fenske, 2000 pp. 712-713) or the theories of legitimacy and democracy of e.g. Bruno Schmidt-Bleibtreu. It would also include an analysis of the fiscal and budget system of the EC as the financial situation is de­cisive for a state’s capability to act. Besides that, a comprehensive classification would include an analysis of what the EC is not: E.g. a nation state, an international organization etc.

However, due to the limited scope of this work I will concentrate on a “positive” defi­nition of the EC as a federal state, without comparing it e.g. to “classical” interna­tional organizations. This means that a comparison of the intergovernmental elements and processes in the EC with the intergovernmental elements and processes in the Canadian federal state (Simeon, et al., 1990) is not possible here, although the subject is very intriguing. The same applies to the comparison of fiscal systems. In­stead I will classify the EC only under the generally accepted legal and legitimistic criteria of a state, especially Jellinek’s “theory of the three elements of a state”, which has been routinely adopted by courts in different states (Tancredi, 2006 p. 171) as well as under the legitimistic elements as they have been adopted by the European primary law, especially in Art 6 of the Treaty on the European Union (TEU, 2002).

Subsequently I want to analyse the political powers of the EC in comparison with those of the German and the Canadian federations. Thereby I want to show the limi­tations of the EC to act like a federal state in the policy fields of external relations, defence and economy.

In a final step I want to focus on the issue of “cultural identity”. It is frequently said that the EC cannot be anything similar to a federal state because it has no single language; no common culture; no common values – in short: no common identity. I want to show that cultural differences do not necessarily exclude but sometimes in­deed constitute a federal state.

2. LEGAL AND STRUCTURAL ELEMENTS OF A FEDERAL STATE

2.1. WHAT MAKES A STATE FEDERAL?

THEORY, PRACTICE AND PROBLEMS OF COMPARISON

When it comes to the definition of what is “federal”, scientists agree to differ (Nugent, 2006 p. 550 ff.).

Federalism can generally be defined as a “voluntary coming together of independent communities in order to form a bigger community that they think will be better able to solve problems of common interest than the single community could on its own”. A similar approach to define “added value” of common decisions is behind the theory of a “covenantal founding” of a polity by Daniel J. Elazar (Elazar, 1992 p. 3) As this means that the federal level must be entitled to pass mandatory decisions and to enforce them, every federal system requires a minimum of competences transferred from the individual community and a minimum of federal institutions. Under this defi-

nition, which is inspired by contemporary definitions of regionalism (Kohler-Koch, 1997 p. 7 ff.), the institutional and legal forms of federal systems can differ ex­tremely.

However, three prerequisites must be given:

- The federation must be a state under the theory of the three elements of Jellinek;
- The member communities must also be states even after they joined the fed­eration (SchmidtR, 2008 p. 25);
- The federal member states must have transferred some of their sovereign rights and competences to the federal level while they kept others to them­selves (“division of power”). (Smiley, 1987; Palermo, 2008)

These criteria leave room for rather “asymmetric” federations like Austria with the de jure sovereign but de facto almost powerless “Länder” (Bußjäger, 2004 p. 135) as well as for the more “symmetric” Canadian model with less sovereign power trans­ferred from the federal member states [“provinces”] to the federation (Palermo, 2008). “Federal systems have traditionally been developed by pooling together sove­reignty. The federal doctrine which has stemmed from this has emphasized that all “classical” federations have a centripetal origin and within them, it is natural for the entities who give up their absolute sovereignty to ensure that the new federal com­pact guarantees the federal equality of all the members, at least for the most impor­tant matters”. (Palermo, 2008).

The more symmetric model requires constant “intergovernmental negotiation” be­tween federation and provinces (Smiley, 1987 p. 83).

Theoretically a federation is to be distinguished from a confederation. The most sig­nificant distinction is the federation’s external sovereignty, i.e. its ability to enter in­ternational contracts while a confederation, as a rule, does not have the quality of being a subject of international law (SchmidtR, 2008 p. 25). However, this distinction is not always applicable or even identifiable in practice.

The EC is an example for a federal state that mixes con-federal and federal ele­ments. While the Community is a member of the United Nations’ [UN] Food and Ag­riculture Organization [FAO], as well as, together with all 27 individual Member States, a member of the World Trade Organization, the EC, other than its Member States, cannot be e. g. a Member of the Council of Europe. This is not based on whether the EC is a subject of international law but on the competences the Member States transferred to the Community level. When the transferred competences for agriculture made an EC-membership in the FAO a necessity in the interest of the Community as well as in the interest of the FAO, the UN changed their conditions of and requirements on membership instead of discussing the EC’s legal quality: The status of Membership of the European Community required changes in the Basic texts of the Organization (Constitution of FAO), which were approved by the FAO Conference of 1991. In addition, the EC membership introduced the concept of the "alternative exercise of Membership rights" between the EC and its Member States which applies not only to voting rights but also to speaking rights. This means that whenever the EC exercises its right to vote, its Member States shall not exercise theirs, and conversely”. (European Commission, 2009b). Against this background, the distinction between confederation and federation has lost much of its practical relevance.

The same applies to whether a federal state must have a unified constitution to ade­quately implement e.g. the “division of powers” or whether a set of written and un­written rules can be an adequate constitutional basis. For example the United King­dom could and can do without a unified, written constitution (MacCormick, 2008 p. 163). The same applies to Canada (Scott, 1986 p. 80). “Unlike the majority of coun­tries whose basic law derives from one document, Canada's basic law derives not only from a set of documents known as Constitution Acts, but also a set of unwritten laws and conventions. This comprises of all the acts passed since 1867 up to and including 1998. As a result, all constitutional documents during that time period have the force of law.” (Government of Canada, 2001a). Against this background, the question of whether a federal state must have a unified, written constitution does not seem to be of much practical relevance either.

This “tour de force” through the theoretical concepts of federalism gives an impres­sion of the different forms federations can take. Therefore, comparative analysis of existing federations meets some difficulties. An element which is a “condition sine qua non” for one federal state might not be very relevant for another and what con­vinces one scientist that the EC is “sui generis” might appear to another as a specialty but not very relevant for the EC’s federal state nature. The following chapters will show some of these differences in the conception of a federal state.

2.2. WHAT MAKES A STATE A STATE?

Human communities have organised themselves from the very beginning without anyone thinking of them as a “state”. Yet, when urbanisation and economies with division of tasks came into being, they developed structures in which the mass of the individuals suddenly faced another “being”, formed by a specialised, marked out group who executed a set code of rules based on whatever “legitimacy of power” the society had – by choice or by force – accepted. Be it in opposition or in voluntary acceptance, the mass of the people now faced a “state power” separated from their individual lives.

Since then the ideas of what, how and if at all a state may be have been under con­stant discussion. Already in the 16th century Jean Bodin defined his idea of an abso­lute monarch as “the power to give and to break laws” without the need to answer to anyone (Schwan, 2000 p. 171), while others like Lipsius or Althaus opposed him with their idea of a state whose sovereignty can only be created by all groups in a society together (Schwan, 2000 p. 175). A final definition of a “state” has never been – and most probably never will be – reached.

Nevertheless, essential legal and legitimistic criteria have been generally accepted. By Jellinek’s legal definition of the “three elements” (Tancredi, 2006 p. 171), a state must have a defined territory, original power to rule and a permanent population (SchmidtG, 2008 p. 11). The legitimistic definition adds a democratic legitimization and the several elements of the “Rule of Law” as necessary properties of a legitimate state.

The following chapters will show that the EC fulfils all criteria required by these defi­nitions albeit sometimes in a very special, even unique, way.

3. THE EC AND THE STRUCTURAL ELEMENTS OF A STATE

3.1. WHOSE TERRITORY IS IT, ANYWAY?

A defined territory is “a natural part of the earth’s surface which is bounded, control­lable and suitable for the permanent inhabitation by human beings”1 (SchmidtR, 2008 p. 11).

Like in India2 or Austria3, the EC’s federal state territory consists of the Member States’ territories. Is it, then, as Nugent sees it, not a federal territory at all? (Nugent, 2006 p. 492) To answer this question it is necessary to define whether the territory – as it is defined by its resp. borders – is of different legal consequence on the federal than it is on the national level.

By Art 20 of the German Constitution [GG], Germany is formed by 16 sovereign fed­eral member states [“Länder”] (SchmidtR, 2008 p. 25).

Every Land’s authority terminates at its borders to the next Land (internal German borders). Without a special agreement of cooperation4, the e.g. Bavarian police would have to stop the chase of a crime suspect as soon as he entered Baden-Württemberg. However, and this is the decisive difference, in cases of federal com­petence the subject’s location within Germany is not relevant. As the competence of the German federation ends only at the international German borders, the internal German borders are of no consequence what so ever. Therefore, the German fed­eration is a state with a territory defined by the German external borders, while the Länder territories are defined by the internal borders.

As the political map of Canada shows, the territory of the Canadian federation is also defined by international borders, while the territory of the 10 Canadian provinces is defined by the resp. provincial borders.

Illustration 1 Political Map of Canada

illustration not visible in this excerpt

Source: (Trail Canada)

The authority of the provinces terminates at the provincial borders while the Cana­dian federal state’s authority terminates only at the international borders (Smiley, 1987 p. 3). The British North American Act of 18975 [BNA], the basis act of the Ca­nadian Constitution, emphasises the regional character of provincial power when saying in e.g. part VI no. 93 BNA that the provincial legislature may make laws “in and for each province (...) ”.

The same applies to the EC, as every Member State’s authority terminates at her national borders while the EC law and authority terminate only at the external bor­ders to neighbouring third states.

However, one might argue that, as the EC has no power of disposition over the Member States’ national borders, it has no power of disposition over its territory. This is not quite true.

Disposition over territory can be threefold: To enlarge the territory, to reduce it or to reorder it.

The German federation is entitled by Art 29 II GG to reorder the “federal (sic!) terri­tory by passing federal law which has to be confirmed by plebiscite in the affected Länder”1. The Länder can advise the federal government but they have no say in the matter. The German federation can dissolve a Land and/or create a new one but she cannot enlarge her territory by permitting additional Länder into the federation. The GG’s preamble states that, with 1990 German reunification “the German unity and liberty has been finalised. With that this constitution applies to the whole of the Ger­man people.”1 (Bundesrepublik Deutschland, 2007) Therefore the German federation is in a very strong position when it comes to reordering her territory but has no pos­sibility to enlarge it.

In Canada the Canadian Constitution Act of 1982 [CCA] requires an amendment to the Constitution before the territory can be reordered (Government of Canada, 2001b). The amendment has to be passed by a majority of the Members of the House of Commons (federal parliament) and of the Senate6. Additionally it needs the approval of the majority in at least two third of the provincial legislative bodies that represent at least 50 % of the Canadian population (part V no. 38 CCA). As dissolu­tion of a province would affect the Lieutenant Governor’s7 office, it would also need unanimous ratification by all provincial legislative bodies (part V no. 41 CCA). The Canadian federation is however entitled to allow additional provinces into the federa­tion if the prerequisites of the Canadian Constitution are fulfilled (Scott, 1986 p. 90). For example Newfoundland was admitted into the federation in 1949 after due amendment of the Canadian Constitution through the Newfoundland Act of the Brit­ish Parliament. Therefore, while the Canadian federation’s position in reordering the existing territory is comparably weak, she has the power to enlarge it.

Much like Canada the EC cannot reorder its territory by altering the national borders. Every provision in the Treaty on the European Community [TEC] comparable with Art 29 II GG would collide with Art 6 of the Treaty on the European Union [TEU] where the EU foregoes the possibility to make the Member States’ national borders a federal issue. While Art 1 II TEU confirms, that the EU-Member States are the Mem­ber States of the EC, Art 6 III TEU states that the EU “respects the national identity of its Member States”1 which logically includes their territorial integrity.

At the same time, the EC has the possibility to enlarge its territory by admitting new Member States in (Art 49 I TEU) through a unanimous vote of the Council and the approval of the European Parliament [EP]. The admittance depends on the ratifica­tion by all 27 Member States (Art 49 II TEU).

As a result of this comparison it can be stated that the EC has a defined federal terri­tory of self-standing legal quality and consequences, the same as Germany or Can­ada.

3.2. THE ORIGINAL POWER OF A STATE TO RULE

A state must have “the original power (...) to rule”1. Power is “original” if it is not to be derived from another state or organizations. (SchmidtR, 2008 p. 14 ff.).

A state’s power essentially contains the power to pass legislation which is directly applicable and effective, i.e. not to be acknowledged by any other state or organiza­tion, before it comes into force. Original power also comprises the entitlement to ap­ply and to enforce this legislation. The latter includes judiciary as well as executive power. This means, in order to be a state a community must be able to perform leg­islative, executive and judiciary power (Schwan, 2000 p. 199 ff) without being under another community’s control or dependent on its approval.

3.2.1. LEGISLATIVE POWER – DEFINING A SUPREME LEGAL ORDER

In a federal nation state it is a given that the federation as well as its member states are all entitled to pass binding law (SchmidtR, 2008 p. 64). As federal law must be uniformly valid in all member states, it must be supreme to their legislation.

The German Constitution [GG] therefore states that “federal law breaks the law of the Länder” 1 (Art 31 GG).

In Canada the BNA vests legislative power into the two houses of the “one parlia­ment of Canada” (part IV no. 17 ff. BNA) as well as in the provincial “legislative

councils” (part V no. 69 ff BNA). Part VI of the BNA distributes the legislative compe-tences between the federal level and the provinces by enumerating the respective policy fields (VI no. 91-92 BNA). There is no general “clause of supremacy” like Art 31 GG, but special supremacy clauses are laid down for competences which were included in the BNA by later amendments. For example, part VI no. 92A BNA states for “Natural resources and Energy” that “where such a law of Parliament and a law of a province conflict, the law of Parliament prevails to the extent of the conflict” (Government of Canada, 2001a).

However, other than in the cases of Germany or Canada, the supremacy of EC law was automatically acknowledged. When the then Member States created the EEC, they furnished it with institutions which could pass and enforce legislation for a com­mon agricultural market, anti-trust policy etc. (Gasteyger, 2006 pp. 112-113). The Council of Ministers’ [Council] competence to pass regulation mandatory for the na­tional authorities, the Commission of the European Communities’ [Commission] competence to draft these regulations and the then Court of Justice of the European Communities’ [ECJ] competence to interpret and further develop the regulations through “case law” already formed the nucleus of a self-standing supranational legal order (von Stoephasius, et al., 2007 p. 24).

It was mainly the ECJ that made this nucleus grow. In the case Costa/E.N.E.L.8 the Court described EC law as a self-standing legal order with supremacy over national law, based on the transfer of national sovereign rights from the Member States to the Community through the (then EEC)-Treaty. The ECJ ruled that, other than ordinary international regulations the EC legal order is an “own legal system which (...) be­came an integral part of the legal systems of the Member States (...). By creating a Community of unlimited duration, having its own real powers stemming from (...) a transfer of powers (...) to the Community, the Member States have limited their sove­reign rights and have thus created a body of law which binds both their nationals and themselves. The spirit of the treaty makes it impossible (that the EEC-law), an inde­pendent source of law with its special and original nature, is overridden by domestic legal provisions (...) without being deprived of its character as Community law and without the legal basis of the Community itself being called into question. The trans­fer by the States from their domestic legal systems to the Community legal system of

the rights and obligations arising under the treaty carries with it a permanent limita­tion of their sovereign rights.” (ECJ, 1964).

The ECJ also confirmed the direct applicability and effectiveness of EC-law originally developed in the van Gend/Loos ruling9. Had the ECJ then stated that the EC-legal order can “confer rights on individuals” 10 it now elaborated the second essential pre­requisite for direct effectiveness of a legal provision: “Unconditionality”. The EC-law is unconditional because “a Member State’s obligation under the EEC-Treaty, which is neither subject to any conditions nor, as regards its execution or effect, to the adoption of any measure either by the state nor by the Commission, is legally com­plete and consequently capable of producing direct effects” (ECJ, 1964).

With these rulings, the ECJ defined the essential prerequisites of a self-standing le­gal order which so far had not been regarded as a part of the EC’s structure. Both rulings vested the obligation to apply and protect the EC legal order in the national authorities and the national courts. Since then the ECJ has confirmed the supremacy of the EC law also as a consequence of Art 10 TEC (Ladeur, 2000 p. 285), which obliges the Member States to do everything to further and to avoid national legisla­tion, administrative acts or other measures that could hinder EC interests (principle of “effete utile”)11.

In 1974, the German Supreme Constitutional Court [BVerfG] confirmed in its ruling “So lange I” that the Member States had indeed transferred sovereign rights to the EC, thereby creating a new “public body” with a “power to legislate” (Rupp, et al., 2009). This legislation is supreme as well as unconditional, for, as far as it creates individual rights which are adequately precise, it needs no further acknowledgment of the Member States. However, the BVerfG did not accept the EC power as “origi­nal” but only as vested by the national ratification of the Treaties (Fischer, 2001 p. 26). Although some scientists (Buxbaum, 1988 p. 142) think it possible to create original power by transfer of sovereign rights through treaties (see chapters 0. and 4.1.2) the BVerfG saw the EC-law’s supremacy solely stemming from the national law by which the German federation obliged everyone, obviously including herself, to accept EC law’s supremacy.

Nevertheless, today the EC’s own supreme legislative power is taken as a given, like the qualities of the German or the Canadian federal law.

3.2.2. MORE ON LEGISLATIVE POWER – THE SUBSIDIARITY PRINCIPLE

As a federal state consists of sovereign member states, the federation has only such sovereign rights as were transferred to her by the member states. The latter do not give up their state quality, so a minimum of sovereign competences must stay in their hands. Besides, an overwhelming concentration of power on the federal level would reduce the people’s entitlement to self-determinedly decide their own affairs, e.g. by electing a regional legislature. The “distribution of power” therefore has to follow the principle of subsidiarity as an inherent part of, and not a safeguard against, federalism.

Subsidiarity” can be defined as “decisions are to be made by the lowest level, if pos­sible by the individual to be affected by the decision himself”. In a federal state this means that political decisions are to be made on local or regional level while the fed­eral level’s authority is strictly restricted to decisions of general interest. As in mod­ern states political decisions are mostly implemented by passing legislation, “sub-sidiarity” has to be entrenched in a federal state’s legislative system and legal order by suitable instruments. (Daniel, 2009 p. 3)

In Germany the municipalities are entitled by Art 28 II GG to decide “all affairs of the local community in their own responsibility.” Responsibility for all state obligations is guaranteed to the German Länder by Art 30 GG, including legislative power (Art 70 I GG). Federal competence is exceptional.

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