From Dual to Cooperative Federalism: The Changing Structure of European Law (Oxford Studies in European Law)

What is the federal philosophy inspiring the structure of European law? The federal principle stands for constitutional arrangements that find 'unity in diversity'. The two most influential manifestations of the federal principle emerged under the names of 'dual' and 'cooperative' federalism in the constitutional history of the United States of America. Dual federalism is based on the idea that the federal government and the State governments are co-equals and each is legislating in a separate sphere. Cooperative federalism, on the other hand, stands for the thought that both governments legislate in the same sphere. They are hierarchically arranged and complement each other in solving a social problem. Can the European Union be understood in federal terms? The book's general part introduces three constitutional traditions of the federal idea. Following the American tradition, the European Union is defined as a Federation of States as it stands on the 'middle ground' between international and national law. But what federal philosophy has the European Union followed? The special part of the book investigates the structure of European law. Three arguments are advanced to show the evolution of the European legal order from dual to cooperative federalism. The first looks at the decline of constitutional exclusivity on the part of the Member States and the European Union. For almost all objects of government, the Union and its States operate in a universe of shared powers. The second argument analyses the decline of legislative exclusivity. European and national legislation - increasingly - complement each other to solve a social problem. The third argument describes the 'constitutionalisation' of cooperative federalism in the form of the principle of subsidiarity and the idea of complementary competences. A final Chapter is dedicated to Europe's foreign affairs federalism. It analyses, whether the external sphere must be regarded as subject to different constitutional or federal principles. The book concludes that cooperative federalism will benefit both levels of government - the Union and the Member States - as the constitutional mechanism of uniform European standards complemented by diverse national standards best expresses the federal idea of 'unity in diversity'. Contents 12 Table of Cases 18 Table of Legislation 26 Abbreviations 36 Introduction: Coming to Constitutional Terms 38 GENERAL PART: Federalism in America and Europe 48 Chapter 1 – Federal Tradition(s) and the European Union 50 Introduction: Federalism and (Inter)national Law 51 I. The Federal Principle: Three Legal Traditions 52 II. The European Union: American and European Perspectives 77 Conclusion: The European Union as a ‘Federation of States’ 106 Chapter 2 – Federal Philosophies and the Structure of American Law 112 Introduction: Federal Philosophies and Constitutional Structures 113 I. The ‘New Nationalism’: The Decline of Constitutional Exclusivity 117 II. The ‘New Federalism’: The Decline of Legislative Exclusivity 131 Excursus—The Foreign Affairs ‘Exception’ 145 Conclusion: The Changing Structure of American Law 159 SPECIAL PART: The Changing Structure of European Law 164 Chapter 3 – The Decline of Constitutional Exclusivity 166 Introduction: Federalism and Exclusive Powers 167 I. Europe’s Expanding Sphere: The Decline of State ‘Police Powers’ 169 II. Europe’s Contracting Sphere: The Decline of Federal Exclusive Powers 193 Conclusion: European Federalism and Exclusive Powers 221 Chapter 4 – The Decline of Legislative Exclusivity 226 Introduction: European Federalism and Shared Powers 227 I. The Commerce Clause(s): Harmonization in the Internal Market 229 II. The Common Agricultural Policy: A Policy Unlike Any Other? 252 Conclusion: European Federalism and Shared Powers 274 Chapter 5 – Cooperative Federalism Constitutionalized 278 Introduction: The Constitutional Safeguards of Cooperative Federalism 279 I. The Principle of Subsidiarity: A Political Safeguard of Federalism 280 II. Complementary Competences: A Judicial Safeguard of Federalism 302 Conclusion: The Constitutional Safeguards of Cooperative Federalism 377 Chapter 6 – Excursus: A Foreign Affairs ‘Exception’? 324 Introduction: The European Union and Foreign Affairs 325 I. Europe’s International Powers: Dual Federalism in the External Sphere 327 II. Theory and Practice: Towards Cooperative Federalism? 348 Conclusion: The European Union and Foreign Affairs 377 Conclusion: Europe’s Gemeinweg towards Cooperative Federalism 382 Bibliography 390 Index 418 A 418 C 418 D 420 E 420 F 422 H 423 I 423 K 424 L 424 M 424 N 424 O 425 P 425 S 426 T 427 U 427 V 428 W 428 Y 428 List of Abbreviations List of Cases: European Union and United States List of EC Legislation and Guidelines Introduction: Coming to Constitutional Terms General Part - The Federal Principle in America and Europe 1: Federal Tradition(s) and the European Union Section I - The Federal Principle: Three Constitutional Traditions Section II - The European Union: American and European Perspectives 2: Federal Philosophies and the Structure of American Law Section I - The "New Nationalism"--The Decline of Constitutional Exclusivity Section II - The "New Federalism" - The Decline of Legislative Exclusivity Excursus - The Foreign Affairs "Exception" - Dual Federalism Constitutionalised Special Part - The Changing Structure of European Law 3: The Decline of Constitutional Exclusivity Section I - Europe's Expanding Sphere: The Decline of State "Police Powers" Section II - Europe's Contracting Sphere: The Decline of Federal Exclusive Powers 4: The Decline of Legislative Exclusivity Section I - The Commerce Clause(s): Harmonization in the Internal Market Section II - The Common Agricultural Policy: A Policy Unlike Any Other? 5: Cooperative Federalism Constitutionalised Section I - The Principle of Subsidiarity: Procedural Safeguards of Federalism Section II - Complementary Competences: Substantive Safeguards of Federalism 6: Excursus: A Foreign Affairs "Exception"? Section I - Europe's International Powers: Dual Federalism in the External Sphere Section II - Theory and Practice: Towards Cooperative Federalism? Conclusion: Europe's Gemeinweg Towards Cooperative Federalism Bibliography Index ## Abstract What is the federal philosophy inspiring the structure of European law? The federal principle stands for constitutional arrangements that find “unity in diversity”. The two most influential manifestations of the federal principle emerged under the names of “dual” and “cooperative” federalism in the constitutional history of the United States of America. Dual federalism is based on the idea that the federal government and the State governments are co-equals and each is legislating in a separate sphere. Cooperative federalism, on the other hand, stands for the thought that both governments legislate in the same sphere. They are hierarchically arranged and complement each other in solving a social problem. Can the European Union be understood in federal terms? The book’s General Part introduces three constitutional traditions of the federal idea. Following the American tradition, the European Union is defined as a Federation of States as it stands on the “middle ground” between international and national law. What Is The Federal Philosophy Underlying The Law-making Function In The European Union? Which Federal Model Best Characterizes The European Union? This Book Analyses And Demonstrates How The European Legal Order Evolved From A Dual Federalism Towards A Cooperative Federalist Philosophy. Robert Schütze. Includes Bibliographical References And Index. What is the federal philosophy underlying the law-making function in the European Union? Which federal model best characterizes the European Union? This text analyses and demonstrates how the European legal order evolved from a dual federalism towards a cooperative federalist philosophy