Along came a spider...

This project intends to uncover the principles underlying the various vertical divided powers systems, as well as to identify the constitutional conceptualization of State-EU relations. The federal form of government is used in various states in Europe: Germany, Austria, Belgium. In Spain (Comunidades Autónomas), Italy, the United Kingdom (devolution) and France the centre – ‘regions’ relationship is in flux. The EU, while not astate, does have characteristics which may be termed ‘federal’. Most Member States know other forms of decentralisation between the central level andother levels. All Member States have transferred powers to the EU.

The federal design

What constitutional principles underlie the specific federal design? Do the federated entities participate in decision makingat the national level? How are minorities protected in decision making? How are powers divided between the federation and the federated entities/regions/states/local authorities? What is the legal relationship between federal and state/Land/regional/local law? How is the federal (or regional, decentralised) system affected by the State’s participationin the EU?

Principles of federalism

Which concepts and principles govern the relationship between thevarious levels of government? The German principle of ‘Bundestreue’ or federal loyalty obliges federal and state governments to cooperate and work towards a common understanding intheir relationship with each other (Kalkar II, BVerfGE 81, 310; Finance Equalization III case, BVerfGE . The principle of loyal cooperation (article 10 EC) plays a pivotal role in the case law of the ECJ (e.g. Case 68/88 Greek Maize Case; Case C-105/03Pupino). In most federal systems, there is a primacy rule defining that federal law takes precedence (‘Bundesrecht bricht Landesrecht’, Case 6/64 Costa v ENEL), but not in Belgium.

Transfer of powers to the EU

Is the transfer of powers constitutionally allowed? How is such transfer conceptualised in legal terms? Are there constitutional limits to transfer? Are there conditions to the participation in the EU?

The effect of EU law in the domestic legal order

Is EU/EC law effective in the domestic legal order? How is it made effective? Are therelegal limits to domestic compliance with EU law? Can EU law be reviewed on compatibility with the Constitution and/or higher law?