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From Dual to Cooperative Federalism: Changing Structure of European Law (eBook)


ISBN13: 9780191642807
Published: February 2013
Publisher: Oxford University Press
Country of Publication: UK
Format: eBook (ePub)
Price: £22.49 + £4.50 VAT
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What is the federal philosophy underlying the law-making function in the European Union? The federal principle represents a constitutional structure which attempts to find unity in diversity. In federal structures, authority is divided between a centre and the periphery.

The two most influential manifestations of the federal principle emerged under the names of dual federalism and cooperative federalism in the constitutional history of the United States of America. While the two variants of federalism share the federal idea of duplex regimen, they differ in how the two levels of government relate to each other.

Which federal model best characterizes the European Union? After an analysis of the federal principle in constitutional history, three lines of arguments are pursued to demonstrate the evolution of the European legal order from a dual federalism towards a cooperative federalist philosophy. The three arguments focus on the scope of the Community's law-making powers in general; the scope of the Community's exclusive powers; and the extent of legislative pre-emption under the Community's shared powers.

This transition from dual to cooperative federalism is viewed as a positive development that will benefit both levels of government - the European Union and the Member States - since the ideal of structuring the law-making function according to the problem at hand is more flexible and efficient than the idea of mutually exclusive spheres of power. The mechanism of common federal standards supplemented by territorially differentiated national solutions best expresses the idea of unity in diversity.

Subjects:
EU Law, eBooks
Contents:
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

Series: Oxford Studies in European Law

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