DEPARTMENT OF LAW EUI Working Papers LAW 2012/06 DEPARTMENT OF LAW DECONSTRUCTING EU FEDERALISM THROUGH COMPETENCES Loïc Azoulai, Lena Boucon, Annegret Engel, Anna Kocharov, Dennis- Jonathan Mann, François-Xavier Millet, Jacob Öberg Edited by Loïc Azoulai, Lena Boucon, François-Xavier Millet EUROPEAN UNIVERSITY INSTITUTE , FLORENCE DEPARTMENT OF LAW Deconstructing EU Federalism through Competences EUI Workshop Proceedings – 14 June 2011 LOÏC AZOULAI , LENA BOUCON , ANNEGRET ENGEL , ANNA KOCHAROV , DENNIS -JONATHAN MANN , FRANÇOIS -XAVIER MILLET , JACOB ÖBERG LOÏC AZOULAI , LENA BOUCON , FRANÇOIS -XAVIER MILLET (E DS .) EUI Working Paper LAW 2012/06 This text may be downloaded for personal research purposes only. Any additional reproduction for other purposes, whether in hard copy or electronically, requires the consent of the author(s), editor(s). If cited or quoted, reference should be made to the full name of the author(s), editor(s), the title, the working paper or other series, the year, and the publisher. ISSN 1725-6739 © 2012 Loïc Azoulai, Lena Boucon and François-Xavier Millet (eds.) Printed in Italy European University Institute Badia Fiesolana I – 50014 San Domenico di Fiesole (FI) Italy www.eui.eu cadmus.eui.eu Abstract This paper is a collective endeavour to depart from the traditional view that a clear-cut separation of powers between the European Union and its Member States is one of the main features and one of the main safeguards of the European quasi-federalism. On the one hand, it is an effort to show the deep intertwining of EU and national powers in the actual course of European integration. On the other hand, it is an attempt to discover new legal and political safeguards to the development of EU federalism. Keywords European Union Law – Division of powers – Competences – Retained powers – Subsidiarity – Proportionality – Constitutional Identity – American and European Federalism Authors/Editors’ Contact Details Loïc Azoulai Professor of European Union Law European University Institute Florence, Italy Email: [email protected] Lena Boucon Law Ph.D. Researcher European University Institute Florence, Italy Email: [email protected] Annegret Engel Ph.D. Candidate in Law Durham University Law School 50 North Bailey Durham DH1 3ET United Kingdom Email: [email protected] Anna Kocharov Law Ph.D. Researcher European University Institute Florence, Italy Email: [email protected] Jacob Öberg Law Ph.D. Researcher European University Institute Florence, Italy Email: [email protected] Dennis-Jonathan Mann SPS Ph.D. Researcher European University Institute Florence, Italy Email: [email protected] François-Xavier Millet Law Ph.D. Researcher European University Institute Florence, Italy Email: [email protected] TABLE OF CONTENTS INTRODUCTION ................................................................................................................................. 1 L. Azoulai PART I: THE TRADITIONAL DIVISION OF POWERS DOCTRINE: A SATISFACTORY SAFEGUARD TO EU FEDERALISM? ............................................................................................. 5 Subsidiarity After Lisbon: Federalism without a Purpose? ..................................................................... 7 A. Kocharov Deconstructing Federalism through Retained Powers of States: The European Court of Justice Middle Ground Approach Analyzed in the Light of the American Federal Experience ....................... 23 L. Boucon Retained Distinctiveness in the Integrated Third Pillar: Safeguarding Member States’ Competences in the European Criminal Law Sphere ................................................................................................. 39 A. Engel PART II: NEW SAFEGUARDS TO RECONSTRUCT EU FEDERALISM ................................ 51 National Constitutional Identity as a Safeguard of Federalism in Europe ............................................ 53 F.-X. Millet The Principle of Proportionality, Federalism and Judicial Review in the Law of Free Movement ...... 65 J. Öberg Contested Competences and the Contested Nature of The EU: Ambiguity as a Defining Characteristic of the EU and the (Early) US ......................................................................................... 89 D.-J. Mann INTRODUCTION Loïc Azoulai This Working Paper is the outcome of a workshop held at the EUI on June 14 th , 2011 on the initiative of two researchers of the Law Department, Lena Boucon and François-Xavier Millet, with my support and in the presence of several EUI researchers and of Bruce Ackerman, professor of Law and Political Science at Yale University, Bruno de Witte, professor of European Law at Maastricht University and part-time professor at the EUI Robert Schuman Centre and Miguel Poiares Maduro, professor of European law at the EUI. It has been given a title which might sound like a slogan: Deconstructing EU Federalism… This was meant not only to bring the “French theory touch” into a project mainly oriented at investigating EU federalism in a comparative context, but also reflects a thoughtful working hypothesis. A Working Hypothesis As formulated by the two initiators of our meeting, the workshop was aimed at challenging the so- called traditional view that “a clear-cut separation of powers between the European Union and its Member States is supposed to be one of the main safeguards of federalism”. Federalism refers to a mode of political organization where two distinct levels of governance – the federal/supranational and the national – coexist and are protected. Under a federalist mode of organization, the main issue is how to differentiate intrinsically interdependent political and legal orders. A traditional response resides in the allocation of powers. Federal law and federal courts seek to enforce mechanisms whereby the efficiency of the federal structure is ensured while “core” state powers are protected from federal influence and state interests are incorporated in federal political institutions. It is submitted that, in deploying such mechanisms, the EU has failed to protect the autonomy of national powers. The picture is one of the deep intertwining of EU and national powers. Therefore, if European federalism is to be safeguarded, new mechanisms should be sought. The catalogue of competences and the new procedures introduced by the Lisbon treaty (such as the introduction of subsidiarity review by national parliaments or the existence of opts-outs procedures in the area of freedom, security and justice) are not the solution; they are rather part of the problem. The activation of these clauses inevitably creates the suspicion that the dynamics of European integration and the sense of a loyal membership to the Union are endangered. As argued by A. Kocharov, the new subsidiarity review procedure tends to “reverse the presumption in favour of Union action”, 1 but the same can be said of the procedures examined by A. Engel. Ex-ante methods aimed at setting clear-cut frontiers to the EU enumerated powers have proven to be ineffective in protecting the Member States’ legitimate scope of action. An alternative approach could look to techniques of differentiation developed in the course of the exercise of EU and state powers. As a matter of fact, fundamental state interests are better protected ex-post, through a variety of techniques – for example by introducing the disruptive concept of “constitutional identity” in the framework of the interpretation of EU law, by varying the degree of the proportionality test applied to states’ justifications or even by acknowledging the very ambiguity of the language developed by the legal and political actors in European integration. The time is ripe to recognize, systematize and evaluate each of these practices and discourses. It is this hypothesis that the papers included in this volume develop, each with its own style and inflection. It was discussed at length during our lively workshop. It is now submitted to the readers. In 1 See Anna Kocharov’s paper. 1 Loïc Azoulai what follows, I would like to illustrate the value of it by paradoxically departing from one of its premises. How Traditional is the Division of Powers Approach? One of the merits of the approach proposed in this volume is to bring out a theme which has been underdeveloped in EU legal studies and practices. The approach drawn in allocation of powers terms is not as “traditional” as it might have been assumed in the presentation of our workshop. As has been noted, “Until the end of the 1990s, there had been astonishingly little research on the system of the Communities’ competences. Legal literature on competence issues had almost exclusively focused on Article 235 EEC Treaty” .2 Arguably, this lack of conceptualization is due to the structure of the EC treaty which did not specify the categories of competences conferred on the Community. The European Community was supposed to operate on the basis of the broad objectives and the specific provisions provided for by the treaty. 3 EC competences were derived from a list of aims and means allocated to the Community and on the basis of the link that may be established between a purported action and the achievement of the common/internal market. 4 EC action was certainly not justified on the basis of a specific subject matter having been entrusted to the Community. This may not be the only explanatory factor however. Intertwined with the EC’s appeal for aims and treaty objectives to foster “positive integration” are the legal