2 - Structure of the Union: Federal Perspectives

Question 1

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

Answer 1

Semantics bc no universally agreed definition of ‘federalism’

Question 2

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

Answer 2

1/ foedus

2/ contractual relations btwn sovereign States

3/ so an international concept

Question 3

What do States as ‘contracting partners’ remain?

Answer 3

Sovereign

Question 4

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

Answer 4

1777 Articles of Confederation and Perpetual Union (US)

Question 5

What is the US tradition regarding federalism? (3)

Answer 5

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’

Question 6

What is the European tradition regarding federalism? (5)

Answer 6

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

Question 7

Who were 2 early critics of European tradition of federalism?

Answer 7

1/ Hans Kelsen

2/ Carl Schmitt

Question 8

What are 2 main arguments of Kelsen?

Answer 8

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

2/ treaty & constitution not mutually exclusive

Question 9

What is main argument of Carl Schmitt? (2)

Answer 9

1/ sovereignty question must remain suspended

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

Question 10

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

Answer 10

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

2/ not sure whether federalism provides a positive definition though

Question 11

Can there be federalism beyond the State? (4)

Answer 11

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

Question 12

What is a possible definition of federalism? (4)

Answer 12

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

Question 13

How does self rule for the EU MS materialize?

Answer 13

Division of competences

Question 14

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

Answer 14

1/ shared powers

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

Question 15

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

Answer 15

Functional dimension of federalism

1/ Gvt

2/ legislature

3/ parliament

4/ judiciary

5/ citizenship

Question 16

What is the descriptive side of federalism? (2)

Answer 16

1/ means to nation building

2/ functional means to achieve common values and objectives

Question 17

What is the normative side of federalism? (2)

Answer 17

1/ means to keep in check a component part

2/ means to keep the centre in check

Question 18

A frequent critique of federalism is based on…?

Answer 18

Democratic constitutionalism

Question 19

What is a mainstream assumption of federalism? (4)

Answer 19

1/ peoples

2/ sovereigns

3/ constitutions

4/ may coexist on the same territory

Question 20

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

Answer 20

1/ no European demos?

2/ so no European constitution

3/ hence no federal source of authority

Question 21

How can one criticise the democratic constitutionalism critique?

Answer 21

It often takes a monistic constitutional view

Question 22

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

Answer 22

Lissabon Urteil (BVerfG)

Question 23

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

Answer 23

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

Question 24

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

Answer 24

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

Question 25

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

Answer 25

1/ heterarchical system 2/ in which sovereignty question remains suspended

Question 26

What is federalism agnostic to?

Answer 26

The quantitative DP

Question 27

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

Answer 27

1/ safeguarded 2/ necessary for recognition of diversity

Question 28

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

Answer 28

1/ conferral 2/ subsidiarity & proportionality 3/ protection of constitutional identity

Question 29

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

Answer 29

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

Question 30

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

Answer 30

1/ dual federalism 2/ cooperative federalism

Question 31

Characteristics of dual federations? (2)

Answer 31

1/ strict separation of legislative and executive functions 2/ emphasis not on 'shared rule'

Question 32

Characteristics of cooperative federations? (3)

Answer 32

1/ SP is less strict 2/ states are actors in the centre 3/ legislative, executive and judicial functions are shared

Question 33

Examples of dual federations? (2)

Answer 33

1/ BE 2/ US

Question 34

Examples of cooperative federations? (2)

Answer 34

1/ GER 2/ EU?

Question 35

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

Answer 35

1/ shared rule 2/ both separate & joint legal system, administrations, judiciary

Question 36

Characteristics EU shared legal system? (2)

Answer 36

1/ shared powers (Art. 4 TFEU) 2/ MS legal norms can find their way into EU legal norms

Question 37

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

Answer 37

1/ yes: Art. 10 TEU (representative democracy) 2/ no: BVerfG in Lissabon Urteil (EP no substitute for national parliament)

Question 38

Is there a shared judiciary in the EU?

Answer 38

Cf national and EU mandate for every national court

Question 39

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

Answer 39

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

Question 40

What type of instrument could directives be considered as?

Answer 40

Instruments of cooperative federalism?

Question 41

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

Answer 41

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