The European Union, Germany, and the Länder: New Patterns of Political Relations in Europe

5 Colum. J. Eur. L. 415 (1999)

Martin A. Rogoff. Professor of Law, University of Maine School of Law.

A new political order is taking shape in Europe. The end of the Cold War, the reunification of Germany, the break-up of the Soviet empire, the decision to create a European monetary union, to mention only the most significant political events of the past decade, are leading to a type of economic and political cooperation that is unique in European history. The expansion of the European Union to the east will extend the scope of these historic developments. The progressive integration of western and central Europe is proceeding peacefully, rationally, and deliberately, within the context of the established legal and institutional processes of the European Union.

The current trend is not necessarily irreversible, however. The European Union is a unique political construct. It does not resemble a federal state, but neither is it a mere confederation of states. The member states which compose it still retain, legally as well as politically, the essential attributes of national sovereignty, although some attributes of national sovereignty have undoubtedly passed to the Union. Ultimately, the success of the enterprise depends upon the willingness of at least the most powerful and populous states to cooperate in the European project. Since all EU member states are democracies, whose governments are by and large responsive to the desires of their people, it is, in the final analysis, the support of the people of Europe upon which European integration depends.

Certain events in the early and mid-1990’s, like the referenda in France and Denmark on the Treaty of European Union (TEU), the constitutional challenge to the Germany’s ratification of the TEU, and British opposition to monetary union and the European social agenda have demonstrated that popular support for further European integration may indeed be precarious. In recognition of this political reality, Europe took what might be characterized as a step backwards with the formal adoption of the “subsidiarity” principle; and the European Court of Justice has given effect to that principle in a number of specific decisions. Also in response to the political climate, the power of the European Parliament was enhanced in both the TEU and in the subsequent Amsterdam agreement in order to reduce the so-called “democracy deficit.”

The protection of domestic competence in matters better decided at the member- state level and the extension of popular participation in the EU legislative process are undoubtedly moves well calculated to enhance support for the Union among the peoples of Europe. But perhaps the most original and intriguing political arrangements for building an integrated Europe are those presently under construction in Germany, arrangements which allow for broad-based, ongoing participation in internal German decision-making with regard to EU matters. These arrangements build on and profit from the federal organization of the German state; and they neatly resolve a number of difficulties with are presently retarding European integration, such as the problem of popular participation in EU decision-making and the feeling that the institutions of the EU are too remote from and unresponsive to the average European.

In this article, I will describe and evaluate the arrangements which Germany has put in place to allow for participation in EU matters by the constituent units of the  German federal state (the Länder). To provide necessary background, I will first briefly describe the structure and operation of German federalism. I will conclude by suggesting that the German model represents a new form of conceiving and organizing political relations which has considerable potential for the building of larger political units, like the integrated Europe which is presently under construction.