The Framework Revisited: Constitutional, Federal and Subsidiarity Issues

2 Colum. J. Eur. L. 403 (1996)

Ingolf Pernice. Professor of Law, Humboldt-Universität, Berlin; formerly Professor of Law, Johann Wolfgang Goethe-Universität, Frankfurt; Dr. iur. Augsburg.

At an international symposium in 1993 on the future of Europe, Thomas C. Fischer opened his report on comparative federalism with a reference to his favorite cartoon about the EC: a hydra monster with twelve heads, each biting the other. In my view, there are actually fifteen heads biting the very body of the monster, pretending, however, to be strengthening it, bite by bite.

Since March 29, 1996, the Intergovernmental Conference of the European Union has convened to negotiate the revision of the Treaty of Maastricht with the view of enhancing the principles of subsidiarity and democracy, simplifying decisionmaking procedures and preparing the institutions for the future enlargement of the Union. Promises, proposals and hopes regarding this conference are extremely divergent, if not contradictory. But there seems to be unanimity on the need to bring the Community closer to the people, to foster citizen involvement in Community policies, and to enhance the powers of the European Parliament while simplifying the Community’s legislative procedures and introducing more transparency. Germany and some other Member States are also keeping a close eye on stricter and more precise terms of subsidiarity in the evolving federal system.

Thus, the subject of our symposium fits in directly with a basic concern of the European constitutional process. Let me, therefore, first draw some conclusions from last year’s symposium, which concerned methods to make the principle of subsidiarity effective within the Union; indeed the comparison between the United States and the European Union seems already to have borne valuable fruit. Secondly, I would like to take up one thought which was expressed often last year: the idea of voluntary harmonization in a federal system versus mandatory rapprochement of legislation and federalization. In a period when people are opposed to external constraints on the design of internal legislation and yet are still sympathetic to the unification of Europe, voluntary adaptation may prove to be preferable to any central government.

Finally, considering federalism in the light of a future European constitution has led me to reflect on the division of power among two or more levels of government and the legal mechanisms which keep the system together. In other words, I would like to elaborate on structural and legal integration by interlacing the   European    and  national constitutional orders – which I call “Verfassungsverbund” – meaning something approaching an integrated constitutional system.