political revue


Year XXIX, 1987, Number 3, Page 186



German Federalism against European Unification?
Hans Kelsen, the famous theoretician of the state and philosopher of law, who contributed in 1920 to the drafting of the Constitution of the Austrian Republic, gives us even today (thanks to his definitions of concepts and problems which are still up-to-date as regards the process of European unification) some very useful analytical instruments, albeit in totally different context. To take just one example, in the mid-twenties he sharply criticized the adoption of the word “integration” in the theory of the state as proposed by the German jurist Rudolf Smend. In his reflections, Smend argued that the state cannot be considered a system that has reached a stable equilibrium but is a set of manifestations of vitality, innovations and processes, and for this reason integration must be considered as a fundamental element in the life of the state.[1] Kelsen reacted sharply pointing out that, by arguing that integration is a “bringing together” with a view to unification, Smend was not only guilty of pleonasm (because every unification is a “bringing together” and every “bringing together” is a unification) but his thinking was totally unoriginal, because every state, as is apparent from the German word for “integration”, is the institution of a link, a pact of union between men. A more hollow definition of the state would be difficult to find. Kelsen concluded that “only the non-German origin of the expression hides the banality of the whole concept’’.[2]
There is another problem regarding which many suggestions are to be found in Kelsen. In 1927 when reflecting on the constitutional form to be given to the then hoped for Union between Germany and Austria, he published an article on the Zeitschrift für öffentliches Recht on the problem of the emerging three tier federal state where he reached the conclusion that, should Austria be annexed to Germany, “the federal character of Austria would disappear or would, at the very least, have been profoundly modified. From a technical and organizational point of view, a federal state in a federal state is an irreparable complication’’.[3]
It is precisely this “irreparable complication” that has become apparent in the framework of the process of European integration, in connexion with the ratification of the Single European Act in the Federal Republic of Germany. The Länder, whose governments make up the Bundesrat, i.e. the Second Chamber of the German Parliament, expressed a number of reservations. They demanded that the Federal Government should give them a greater say in the decisions of the European Community and, in addition, insisted on the Länder’s prior approval and consultation regarding decisions affecting their powers. They also demanded the amendment of Article 24 of the Constitution, regarding the transfer of sovereign rights to inter-state institutions.[4]
The various stages in the controversy.
The problem of the Länder’s participation in the construction of European unity is not new. Already at the time of the foundation of the Council of Europe, and more specifically when the Federal Republic took part a year later, the problem was repeatedly raised as to whether the deputies of the Länder’s assemblies ought not to be granted the right to participate at least in the Parliamentary Assembly of the Council of Europe. At the time of the foundation of the ECSC and of the signing of the Treaties of Rome similar problems were discussed. The decline in the Länder’s powers and the transfer of these powers to the Bund level (a matter we shall discuss below), the transfer of national powers to the European Community institutions and their exercise of powers previously assigned to the Länder led to repeated discussions and draft agreements regarding their participation in the process of formation of the Community’s political will. The Ministerpräsident of the Land Hessen, Holger Borner, summarized the various stages in the issue in its fundamental terms in his inaugural speech as President of the Bundesrat. The Bundesrat, like the Länder soon became aware of the interplay between the advancement of the process of European unification and the federal system in the Bundesrepublik. Already at the time of the ratification of the ECSC treaty in 1951, the then Ministerpräsident of the Land Nord-Rhein Westfalen, Arnold, pointed out the danger that the Länder might be excluded from all participation in the decisions taken at a European level and that they would be “downgraded to purely administrative entities”. With the signing of the ECSC treaty “the fundamental powers of the Bundesrat as a legislative body” were jeopardized.
On that occasion the Bundesrat, in its statement of position regarding the draft statute drawn up by the Federal Government, asked that statutory provisions should be made for its participation in the process of formation of the political will of the German representatives in the framework of the Schuman Plan before ratification. This request to base the legal system on the rights of participation of the Bundesrat, and hence the Länder, in the process of formation of the political will of the Federal Government was not, however, taken up.
The Bundesrat’s right to participate was only provided for at the time of the ratification of the Treaties of Rome. Certainly the Bundesrat’s original request was not satisfied, namely that instructions to the representatives of the Federal Republic on the Community Council should be given by the Federal Government only after consultation with the Bundesrat. However, Article 2 of the ratification provisions of July 27, 1957 lays down that the Federal Government must keep both the Bundestag and the Bundesrat constantly informed about what is happening in the European Community’s Council of Ministers.
The consultation must take place before the Council makes a decision insofar as, following the Council’s decision, the need arises to draw up directly enforceable domestic German legislation. From an organizational standpoint, the Bundesrat subsequently decided (again in 1957) to create a special commission called “Common Market and Free Trade Zone Commission”, which was later called “the Commission for the problems of the European Communities”.
The Bundesrat, with great spirit of commitment, took on the task of bringing pressure to bear on Brussels through statements of principle on a whole series of issues. By 1957 it had debated 9400 draft statutes of the European Community, a figure which indicates the significance that the Community had already acquired.
But even outside the Bundesrat, the Länder took initiatives to involve themselves in the most appropriate ways possible in the process of formation of the European political will both by appointing their observers in the European Communities, and through the 1979 agreement between the Federal Chancellor and the President of the Conference of the Ministerpräsidenten of the Länder regarding the participation of the Länder in the approval of specific draft Community statutes.
The Länder’s observers must supply information to the Länder swiftly in order to allow them to make their position known regarding the decisions being taken in the Community.
The 1979 agreement gave the Länder the opportunity to express their opinion to the Federal Government, in far-reaching ways whenever a Community project related to sectors that fell either partly or entirely in the jurisdiction of their parliaments. The task of the federal bodies is to reach a position which tallies with the Länder and to present it and impose it during negotiations insofar as this is possible.[5]
The problem of the steady erosion of the Länder’s powers and the steady increase in the domain of Community policy has become increasingly significant in recent years thanks, in particular, to the development of regional, social and environmental policies and policy on competition, all sectors in which the Länder’s powers relative to the promotion of economic development and social policies have been heavily compromised by Community law. The Länder’s civil service has been confronted with the provisions of Community legislation that they must implement without having any possibility of influencing the drafting of this legislation. The result has been that in recent years a tendency has developed in the Länder intensifying relationships with the Community in the form of meetings of top civil servants and ministers in Brussels, which led to the Länder opening information and contact offices in Brussels, so as to be directly represented vis-à-vis the Community.[6]
But the problem reached a head in the debate in the Bundesrat at the time of the discussion of the Draft Treaty of the European Parliament for the establishment of the European Union and the Single European Act.
On January 31, 1986 the Bundesrat expressed its opinion on the decision of the European Parliament regarding the Draft Treaty for the establishment of the European Union, in which European unification was confirmed in principle as the “historic task of the European peoples”[7] and the goal of the European Union was affirmed. In the part of the resolution of the Bundesrat dedicated to principles, the Parliament’s initiative is looked on favourably, the stagnation of the Community deplored, and the reform of its decision-making procedures repeatedly demanded. In the same resolution in which a federal structure for the European Union is called for, the possibility of “two-speed integration” is admitted. It also upholds the European Parliament’s statement of principle under which reform of the Community’s bodies is necessary. The resolution continues explicitly: ‘‘The right of legislative co-determination based on complete parity must be granted to the European Parliament. The decisions of the Council must in principle be taken by a majority”.[8] While in principle the cause of the European Parliament is upheld and the Draft Treaty is seen as an appropriate basis for further discussion, the Bundesrat manifests strong reservations as regards the transfer of jurisdiction to the European Union as provided for in the European Parliament’s Draft Treaty. The Bundesrat unanimously voted the following resolution (i.e. even with the votes of the Länder controlled by the CDU, the party in power): “The European Union must have a federal structure. It must guarantee the constitutional role of the Länder of the Federal Republic of Germany, as well as the traditional diversity and the rights of the regions as secure components of a European state order. Even the right to administrative self-government of the municipalities must be respected. Central decision-making bodies may have powers only in those sectors where transfer to the European level is absolutely indispensable for the realization of the European Union and that must be subject to consistent and effective discipline only at the Community level or Union level. In all other fields the member states — and, in those matters entrusted to them, the Länder, under the principle of subsidiarity — must retain their powers. The jurisdiction of the European Union and those of the states or their Länder must be distinguished clearly.
It is necessary to take the federal structure of individual member states into account and particularly vital that the basic sphere of sovereign state power, attributed to the Länder of the Federal Republic of Germany, be maintained with a clearly defined jurisdiction. Their right to participate in the Union’s decision-making process must also be ensured in an adequate way, in keeping with their status in the state system of the Federal Republic”.[9]
In a special part of the resolution, the Bundesrat heavily criticizes the European Parliament’s project. In particular it contests the Union’s sphere of jurisdiction which, in its opinion, reveals a strong tendency towards centralization legitimating the process of removing powers, in virtually every sector, from the member states. Faced with the fact that the Draft Treaty establishes powers which favour the Union in almost every field (at least under the various headings) the Länder fear that the constitutional guarantee of their powers contained in Article 79, Subsection 3, of the constitution, will be emptied of any real content.[10]
The Länder seem to be concerned about their powers in particular as regards education, science and research, social policy, health and consumer protection. “Under the principle of subsidiarity”, concludes the resolution, “the transfer to the European Union of tasks that in the Federal Republic are not even carried out at federal level is untenable”.[11]
In the opinion of the Bundesrat, in the European Parliament’s Draft Treaty the Union institutions are called upon to exploit fully their right to legislate and to acquire further new powers. Further reservations are manifested as regards administrative powers, finance (the failure to introduce maximum limits) and the criteria for delimitation of powers. The Bundesrat finally criticizes the unequal relationship in the number of the electors and the elected in the electoral laws for the European Parliament, according to the states, which infringes, in its opinion, the principle of the equality of the vote.
These considerations were voiced in the opinions on the Single European Act adopted by the Bundesrat on May 16, 1986. Even in this case the Bundesrat greeted the Act as “an opportune step on the road in the development of the European Community towards an economic and monetary union and, in a longer term prospect, towards the realization of a European Union”.[12] However, it sees the Act as a further attack on the federal structure of the Federal Republic, that has adverse effects on the Länder, “since it affects the sphere of their original sovereign powers and their right to joint participation in drafting federal legislation, guaranteed by the constitution. Until today, no effective mechanism of compensation has been found in domestic legislation. For this reason, the Bundesrat considers it urgent and necessary to improve on its possibility of influencing, within the structure of the Federal Republic, the process of formation of the decisions of the European Community”.[13]
For this reason, the Bundesrat has proposed the introduction of Article 1a in the ratification Act, thus formulated:
1) With the exception of the content of Article 2 of the ratification Act of the Treaties of March 25, 1957 on the institution of the European Economic Community and the European Atomic Energy Commission, the Federal Government shall inform the Bundesrat fully and expeditely on all the projects, within the European Community, that may affect the Länder.
2) The Federal Government is required to solicit the opinion of the Bundesrat before giving its assent to decisions of the European Community on EEC projects that, totally or in part, fall within the exclusive legislative powers of the Länder or affect their basic interests.
3) The Federal Government must take this opinion into account in the course of the negotiations. In the case of Community projects that, totally or in part, fall within the exclusive legislative powers of the Länder, the Federal Government can depart from the position of the Bundesrat only for cogent reasons of foreign and European policy. In the other cases it must take its assessment of the interests of the Länder as formulated by the Bundesrat into due account.
4) In the case where it does not accept the opinion of the Bundesrat, the Federal Government must communicate to the Bundesrat the reasons that have led to its decision.
5) While it is compulsory to solicit the opinion of the Bundesrat, except for the measures already in force, the representatives of the Länder can, at their request, be admitted to the negotiations in the consultative committees of the Commission and the Council.
6) The details of the procedures of information and participation are drawn up in agreement between the Bund and Länder.[14]
The Bundesrat requires, moreover, that the mechanisms for the future participation of the Länder in the internal process of formation of the decisions should not only be fixed in the ratification Act of the Single Act, but, in future, even in the Constitution, with an amendment to Article 24 of the Grundgesetz that makes it impossible, at least in the cases in which it is a question of sovereign rights of the Länder, to transfer sovereign powers without the agreement of the Bundesrat.
In its statement of position, the Bundesrat intervenes on the individual points of the Act, regarding which it formulates a series of reservations. Criticisms are formulated in particular as regards the conferral on the Commission of powers of an executive nature (Art. 10 of the Act), the provisions regarding freedom to exercise a profession (Art. 16, Paragraph 2), the high standards of security in the Federal Republic (Art. 8), economic development (Art. 23), research and development policy (Art. 24) and environmental policy (Art. 25). In all sectors the Bundesrat recalls the original rights of the Länder, that can be changed only with their assent and only in precise cases, in which there is a real need for European action. The Bundesrat, in other words, asks that Community policy be oriented more incisively along federal principles and that the principle of subsidiarity be implemented.
It was only on November 12, 1986 that the Federal Government formulated its counter-observations regarding the Bundesrat’s opinion so much so that the entire procedure for ratification of the Act, towards the end of 1986, had to be brusquely accelerated. The entire year was in the meantime taken up by a hard-fought political and juridical debate relating to the federal system of the Federal Republic and the risk of its being emptied of meaning. Conventions were organized among specialists and, in particular, among the senior civil servants of the Länder; but even the members of the European Parliament and constitutionalists entered the arena to motivate their respective positions on the basis of juridical criteria. The doyen of German political scientists, Theodor Eschenburg, analyzed and assessed his views on the constitutional conflict that had thus arisen in the authoritative weekly Die Zeit.[15]
In his opinion, the Federal Government firstly expounds various principles of its political action assuring the Länder that it will observe the federal principles that lay down that no further bureaucracies shall be created, that it will take the results of the internal process of formation of political will into consideration, that it will do all it can to ensure that the high standards and levels of security in the Federal Republic will not be lowered by Community provisions. It, moreover, confirms that the rights of codecision of the Bundesrat will not be affected, that the regional economic development policy for education, research and the environment will remain the Länder’s tasks as in the past and that any new powers will be introduced only for the purposes of completing and linking the national initiatives.
The Federal Government is sceptical about the amendment of Art. 24 of the Constitution (though conceding it needs careful examination) and in particular has reservations about the content of Art. 1a, which, in its opinion, affects the very capacity of the Federal Government to act in the field of foreign policy. This, as the Federal Government points out, must be protected: “The Federal Government cannot be subjected to a directive of an other federal body in the exercise of its powers in the field of foreign policy”.[16]
The Federal Government, in other words, agreed to a new Article 1a, even though “with some essential amendments. It also stated its willingness to agree to add several officials to the German permanent representation in Brussels from the Länder so as to keep the latter better informed. Insofar as Community decisions, entirely or partly, invade the domain of the Länder’s powers, the Federal Government agreed to supply them ample opportunities to express an opinion and stated its willingness to bear this in mind. The decisive amendment is in Paragraphs 3 and 5 of the text proposed by the Länder. The formulation of the Federal Government is the following: “The Federal Government in the negotiations takes into account the opinion of the Länder. When an opinion concerns exclusive legislative powers of the Länder, the Federal Government can depart from it only for impelling reasons of foreign and European policy. In the other cases it takes into account, in its considerations, the interests of the Länder as formulated by the Bundesrat” (par. 3). “In all the cases where the Bundesrat is to be given the opportunity to express an opinion, but without prejudice to the rules already in force, representatives of the Länder shall be admitted, at their request, to the negotiations carried out in the consultative Committees of the Commission and the Council, insofar as the Federal Government is allowed to do so” (par. 5).
The Federal Government agrees, moreover, to present, within a short space of time, a draft agreement on the procedures for informing the Länder.
With these amendments, contained in the new text of Article 1a of the ratification Act, the Bundestag, on December 4, 1986, ratified the Single European Act before the deadline with only 6 votes of the Greens against, and the Bundesrat unanimously followed suit on December 19, 1986.
The underlying causes of the controversy.
With the ratification of the Single European Act by the two branches of the German Parliament, the dispute has been settled for the time being. But very soon it will arise again — especially at the time of the implementation of the measures of the Act. With the compromise between the Federal Government and the representatives of the Länder in the Bundesrat, the reasons for the contention have not indeed been resolved, but, if anything, only put back in time. It is necessary, therefore, to delve into the causes.
One of the most important causes is the growing loss of autonomy by the Länder, since the time when the Federal Republic was first founded. This is due to growing interdependence in the field of technology, economics and politics and the transfer of sovereign powers to supranational institutions. From the time it came into force till 1984, the Grundgesetz (the constitution of the German Federal Republic) had been amended 35 times and these amendments were exclusively to the advantage of the Bund. The regional Parliaments have almost completely lost their original role as legislators, even though at the same time the Bundesrat, which is a federal body, has been strengthened. Where before the regional Parliaments legislated, today they implement, in the majority of the cases, federal statutes; and even from the financial standpoint today the Bund occupies a much stronger position than before, in particular since the Länder have not opposed any strong resistance in matters of major financial significance. Reform projects, making provision for the participation of the regional Parliaments in constitutional amendments, have been discussed for many years but have always met with strong resistance from the Bundestag, which does not want to give up its rights, which, in their turn, have steadily decreased, partly also because of interdependence.
A good illustration of this is the debate on the current situation in radio and television broadcasting in the Federal Republic. Among the most important prerogatives of the Länder, together with their administrative functions (since almost all administrative authority depends on the Länder, although federal laws apply) are its powers in the field of culture and, hence, in the control of radio and television broadcasting. In the age of satellites, this “sovereignty” is, however, completely ridiculous and made obsolete by direct transmission from space. No regional legislation on the use of the means of communication can prevent TV satellite broadcasts from being sent from one point on the earth to another. This is one of the reasons why the Länder’s attention is directed towards Brussels, since they recognize that Brussels, i.e. Europe overall, can draw up legislation safeguarding, at least in part, the Länder’s powers in the field of education. However, many other examples could be quoted such as the environmental protection, which has so far been largely entrusted to the Länder.
A further major cause is the Länder’s lack of information as regards what is happening in Brussels. Federal legislative activity, in which the Länder participate thanks to the Bundesrat, is in fact followed and discussed by all publicly through the press, the parties, associations and the unions. The same does not occur for EEC legislative activity. The Länder’s administrations are required to execute laws whose drafting they have not been a party to, that only in very rare cases are subject to public debate and that are the fruit of a supranational decision-making process matured in many languages and concluded without the presence of public opinion (since the Council of Ministers takes decisions, in its legislative capacity, in the course of sessions not open to the public). The desire to be present in Brussels at the moment of the decision — as the Länder do in Bonn — merely corresponds to the desire for better information and participation.[17]
To this we must add the specific nature of the method of integration chosen. Since attempts have been made to unify Europe through economic integration (with the exclusion of such major sectors as foreign, monetary and security policy),[18] attempts have naturally been made in Brussels, to integrate, regulate and harmonize even where, in reality, there was no need to do so. There may be reasons for drawing up regulations regarding European standards for bottles, bread, television advertising times, adding sugar to wine and the amount of carbohydrates in sausages. But there is absolutely no reason why they have to be binding. Federalism means freedom of the member states. The desire to make everything uniform in reality means attempting to eliminate the multiple forms of expression typical of Europe. This is true, naturally, in particular in the field of culture and education, i.e. the main sphere of action which has remained under the Länder’s control (large breeches in this field have, however, been opened up with the institution of new federal ministries for research and technology and for culture and science). This explains why the Länder resisted the projects of the EEC Commission and the European Parliament that interfere in these sectors, projects in which they have had no say and which are destined — in the long-term — to reduce their powers and hence even their source of finance.[19]
Even in the field of measures for economic development, a central area in the activity of the Länder (if for no other reason than the beneficial effects of the competition between them), they increasingly consider themselves damaged by Community provisions regarding competition.
Naturally not only objective reasons have caused these disputes. Party and personal “reasons” have fuelled the matter. The Bundesrat, as a federal body, is made up of the governments of the Länder and they, in their turn, are made up of party politicians. The presence in the Bundesrat of a majority which is not the same as the majority in Bonn is an invitation to use it as a forum in the power struggle between the parties — something that has already taken place.[20] But in the Bundesrat there is also dissent within each party — for personal reasons — which is directed against the government, as was the case in the controversy over the European Act.
Bavaria has always considered itself the most federalist Land among those in the Bund[21] and in recent years its ambitious Ministerpräsident, Franz Josef Strauss (CSU) — excluded from Federal politics — has not spared his criticisms of the head of the Federal Government, Helmut Kohl (CDU) and, in particular, his foreign affairs Minister Hans Dietrich Genscher (FDP).
In recent years Strauss has been one of the protagonists of what has been called the “parallel foreign policy” of the Länder.[22] His many journeys abroad have been intensely political, with a trend that has departed from Bonn’s policy in more than details.[23] No wonder then that the Bavarian government in particular took on the role of head of the opposition in the Bundesrat and those Länder led by the SPD joined in, with the consequence that the Länder which were governed by the CDU found themselves in a minority, willingly or unwillingly, and had to fall into line. The nature of party politics in our democracy explains why the entire dispute was motivated mainly by federalist concerns.[24]
There are naturally other causes fuelling this controversy — even the strengthening of national feeling may have played a role — but the causes so far mentioned are probably the most important.
Federalism within federalism: an irreparable complication?
What lessons can be drawn from these disputes? For those who do not accept, either juridically or morally, or de facto the dogma of absolute national sovereignty as the basis of the future world order — but in particular of the present European order — this controversy recalls the nationalism of the nation-states, expressed here at the level of regions or the Länder. Anyone who has only a theoretical experience of federalism and who has not “lived”, in the truest sense of the term, a state that has a federal structure, may even find this contrast incomprehensible. Is not federalism, we may ask, a dynamic principle that guarantees the freedom of the parts together with solidarity of the whole? Is it not logical that we manage to transfer powers to a higher level, if the parts do not prove to be more capable of resolving problems that have taken on a supranational character? The federal principle is distinguished from the static centralizing vision of the state precisely because it can respond much faster and more dynamically to challenges.
Although this consideration may be correct from a theoretical standpoint, even in the federal state there are constitutional provisions that were right when they were drafted, but which, with the passage of time, require updating. Every state — regardless of its internal organization — acts from this point of view like all other states, indeed just like any human being by trying not to lose power and sovereign prerogatives, i.e. the capacity to act, even though no longer able to exercise them to their full extent.
Herbert Spencer, who introduced the term integration into sociology, clarified this phenomenon, when he wrote that a state organization, by virtue of the fact that it develops itself, becomes a hurdle in its own reorganization. Once it has been constructed, the individual components in the building resist all change, owing to the position that they have acquired and the ties steadily created between them. Self-conservation is always the supreme end of each part, since both the whole and the parts, once constituted, try to perpetuate themselves, whether they are useful or not.
Although an organization is vital to make interaction possible and thus to stimulate social growth, nevertheless, once founded, the organization is a hurdle to further progress, since the prerequisite of the latter is a reorganization, to which the existing organization is opposed.
However, even the opposition by the Federal Government is comprehensible. It does not want to see its power to act in foreign policy limited in any way by a mechanism of direct joint participation of the Länder, precisely because the Federal level is much more liable to lose its powers following European unification. In the sectors of the Bund’s exclusive powers — despite the incompleteness of the EEC — large breaches have occurred and with further progress in the process of unification powers have been further eroded.[25] This explains the Federal Government’s opposition to other subjects — for example the European Parliament taking part in Brussels in the process of formation of legislation, or even to allowing the direct intervention of the Länder in the working out of Community politics in Bonn. Under the basic legislation governing the Federal Government’s powers, relationships with foreign states are part of the Bund’s jurisdiction.[26]
But —it could be reasonably argued — relationships between the EEC member states are no longer classic relationships between sovereign states, but take on — to avoid any legal expression that may give rise to misunderstandings — the status of domestic politics. In the European Community there is a system of common government, a legislative power, an executive power, a Court of Justice and an elected European Parliament, even though the powers are not attributed in the sense of the classic federal system. In this system it can be assumed that there are even direct relationships between the Community and the states (the Länder) making up a federal state which is a member of the Community, in those sectors where these member states of the federation are empowered to act, without an “irreparable complication” for this reason being produced.
The German Länder would thus be able to apply many Community laws directly in their territory without passing through Bonn. Already in the Federal Republic municipalities have administrative autonomy and thus there are direct contacts, regarding for example the regulation of the traffic, between the great cities (since they are part of a Land) and the Federal Minister of Transport. In this respect it should be stressed that the federal principle of subsidiarity implies that the affairs of government are managed at the level which is the closest possible to the daily life of the citizens.
Even if the current evolution suggests it is inappropriate to create a Europe made up of regions, since, on the one hand, the nation-state has become too extensive and, on the other hand, too small to resolve the problems of our times coherently, it does, however, seem appropriate that, during the revision of the Draft Treaty of the European Parliament, having taken the national Parliaments into account, efforts should be directed to developing that part of the preamble that concerns the participation of local and regional authorities.[27]
The opposition of the Länder to the decline in their powers is not in any way to be considered, from the federalist standpoint, as an attempt to block the construction of Europe, but must be seen as the opposition of the lower levels, which until recently were allowed to take political decisions, to an attempt to downgrade them to mere administrative entities in fields where federal independence is possible. Federalism is not and cannot be a one-way road. A European political structure that, without any impelling need, completely vanified the autonomy of the members would provoke a sharp refusal by many European peoples or, at the very least, would meet with indifference.
Precisely this is the danger that the EEC currently runs, for lack of democracy, transparency and a federal structure that brings it close to its citizens.

[1] Rudolf Smend, Staatsrechtliche Abhandlungen, Berlin, 1985, p. 136 ff.
[2] Hans Kelsen, Der Staat als Integration, Wien, 1920, p. 46.
[3] Hans Kelsen, in Zeitschrift für öffentliches Recht, 1927, p. 329.
[4] Article 24 lays down that: “1) the Bund can legislate for the transfer of sovereign rights to inter-state organizations; 2) in the attempt to preserve peace, the Bund can participate in a system of mutual collective security; this therefore makes restrictions of its sovereignty possible where these restrictions create and ensure a peaceful and lasting order in Europe and among the peoples of the world; 3) to regulate disputes between states, the Bund must comply with agreements relating to general, full and compulsory international arbitration.” The Bundesrat in this respect wants to express its opinions on transfers of sovereignty.
[5] Published in Das Parlament, Bonn, n. 46/47 on November 15-22, 1986, p. 1 ff.
[6] By the end of 1987 all eleven German Länder will be represented by officials at a ministerial level on the EEC, with their own liaison offices in Brussels.
[7] Decision of the Bundesrat on January 31, 1986, Document 31/86.
[8] Ibidem, p. 3.
[9] Ibidem, pp. 2 and 3.
[10] Art. 79, Section 3, lays down that: “No amendment shall be made to this Grundgesetz
which affects the division of the Bund into Länder, the participation, in principle, of the Länder in the legislation or the principles laid down under Articles 1 and 20”.
[11] Ibidem, p. 7.
[12] Decision of the Bundesrat on May 16, 1986, Document 150/86, p. 1.
[13] Ibidem, p. 1.
[14] Ibidem, p. 3 ff.
[15] Theodor Eschenburg, “Bundesstaat im Staatenbund — Bahnt sich ein Verfassungskonflikt an”, in Die Zeit, Hamburg, n. 44 of October 24, 1986, p. 13. The proceedings of the conference which was particularly rich in information, and which took place on June 20 and 21 in Stuttgart on this issue, have been published as the book edited by Rudolf Hrbek and Uwe Thaysen: Die Deutschen Länder und die Europäische Gemeinschaft, Baden-Baden, 1986, p. 294.
[16] Federal Government Decision made on November 12, 1986, Deutscher Bundestag, Telefax n. 0228-9090, Lfd. n. 506 of November 13, 1986.
[17] The lack of information on the process of integration is an important but complex phenomenon, which concerns everybody and which in part must be attributed to European bodies which have not as yet shown any ability to conduct an effective information policy.
[18] Even though a preliminary formulation of this issue was given in the Single European Act, the fact remains that in this sector the procedures have remained those typical of the intergovernmental method, and hence no original Community powers are provided for.
[19] This explains for example the Bundesrat’s opposition to the EEC Commission’s Erasmus Project (student exchanges). (See Das Parlament, n. 29/30 of July 19-26, 1986, p.1 ff.).
[20] Particularly in the last years of the Liberal-Socialist coalition. This also explains why every regional election has a political significance for the entire Federal Republic.
[21] The Bavarian regional Parliament was the only one to reject the Grundgesetz on the grounds that it was insufficiently federalist.
[22] Cfr. Klaus Ono Nass, “Nebenaussenpolitik der Bundesländer,” in Europa-Archiv, Bonn, n. 21 of November 10, 1986, p. 619 ff. It should be pointed out that Art. 32, Section 3, lays down that the Länder can also draw up treaties with foreign states. The Section states: “Within the limits of their legislative powers the Länder can stipulate treaties with foreign states with the consensus of the federal government”.
[23] This was apparent in particular in the 1986/87 electoral campaign for the Bundestag, when the Bavarian CSU, led by Franz Josef Strauss, asked very energetically for a change in foreign policy. The main issues at stake were: the relationship with the USA, détente, policy towards South Africa and freedom movements.
[24] The particular contribution of Bavaria in this controversy was made clear from the reading of the titles in an issue of the Bundesrat’s press review, which dealt with the Bundesrat’s position regarding the Single European Act. Here is a sample list of titles: “Bavaria wants to be present in Brussels”; “The free state is organized in Europe”; “A lance broken for federalism, at the expense of Bonn”; “Bavaria opposes the Single Act”; “Bavaria: the government breaks its agreements”; “Bavaria blocks Kohl and Genscher’s European plans”; “The particular wishes of Bavaria block further development of the Community” (from Pressespiegel des Bundesrates, Bonn, n. 7/86 of October 29, 1986).
[25] The following fall under the exclusive jurisdiction of the Bund (the field in which only the federal level has the power to legislate) under Article 73 of the Grundgesetz : 1) foreign affairs and defence, including civil defence; 2) federal citizenship; 3) freedom of circulation, passports, immigration and emigration, extradition; 4) the monetary and currency system, weights and measures, the determination of time; 5) the unity of the customs and trading territory, trade and navigation treaties, free circulation of goods, trade and payments to foreign countries, including customs and border protection; 6) the federal railways and air traffic; 7) the post system and telecommunications; 8) the juridical status of the personnel employed by the Bund and the public bodies directly controlled by the Bund; 9) legislation providing for industrial protection, publishers’ and authors’ royalties; 10) collaboration of the Bund and the Länder in questions relating to criminal police and the defence of constitutional principles, the institution of a federal criminal police office, the struggle against international crime; 11) statistics for federal ends.
[26] Art. 32, Section 1, lays down that “the management of relationships with foreign states is the responsibility of the Bund”.
[27] The corresponding passage in the preamble to the European Parliament’s Draft Treaty establishing the European Union contains the sentence: “Convinced of the need to allow the participation of local and regional authorities in the construction of Europe along appropriate lines”.



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