View
13
Download
0
Category
Preview:
Citation preview
1
Hierarchy and Interdependence in Multi-level Structures
Foreign and European Relations of
Belgian, German and Austrian Federated Entities
2
3
Vrije Universiteit Brussel
Faculteit Economische, Sociale en Politieke Wetenschappen
en Solvay Business School
Vakgroep Politieke Wetenschappen
Hierarchy and Interdependence in Multi-level
Structures
Foreign and European Relations of
Belgian, German and Austrian Federated Entities
Thesis submitted for the degree of Doctor of Philosophy in Political Science
Tamara Kovziridze
Promotor: Prof. Dr. Bruno Coppieters
Maps on the cover page: courtesy of the General Libraries, the University of Texas at Austin.
The following maps were produced by the U.S. Central Intelligence Agency for the World Factbook
Austria: http://www.lib.utexas.edu/maps/cia08/austria_sm_2008.gif
Belgium: http://www.lib.utexas.edu/maps/cia08/belgium_sm_2008.gif
Germany: http://www.lib.utexas.edu/maps/cia08/germany_sm_2008.gif
European Union: http://www.lib.utexas.edu/maps/cia08/european_union_sm_2008.gif
Print: DCL Print & Sign, Zelzate
2008 Uitgeverij VUBPRESS Brussels University Press
VUBPRESS is an imprint of ASP nv (Academic and Scientific Publishers nv)
Ravensteingalerij 28
B-1000 Brussels
Tel. ++32 (0)2 289 26 50
Fax ++32 (0)2 289 26 59
E-mail: info@vubpress.be
www.vubpress.be
ISBN 978 90 5487 536 9
NUR 754
Legal deposit D/2008/11.161/080
All rights reserved. No parts of this book may be reproduced or transmitted in any form or by any means,
electronic, mechanical, photocopying, recording or otherwise, without the prior written permission the author.
5
Foreword
This dissertation was written at the Free University of Brussels (Vrije Universiteit
Brussel, VUB) in the framework of a collective research project named ‘Politics
beyond the State.’ The research was undertaken in the period between 2000 and 2003,
and the dissertation in the present form was successfully defended in January 2004.
Given the relevance of the topic, and the ongoing federalization process in all
three states covered by the study, I decided, together with the Free University of
Brussels and my supervisor Prof. Dr. Bruno Coppieters, to publish the dissertation. I
do believe that even without further update since its submission end of 2003, this
dissertation may represent an interesting piece of research for researchers working on
multi-level institutional structures, Europeanization and federalism.
I would like to sincerely thank my supervisor, Prof. Dr. Bruno Coppieters,
who guided me through the entire process of research. His constant readiness to
critically comment on my work made it possible for me to respect my own deadlines.
I would like to equally thank my co-supervisors Kris Deschouwer and Theo Jans.
Constructive discussions with them at various stages of my work proved to be
extremely useful.
I am grateful to the Free University of Brussels and my colleagues from the
Department of Political Science who supported me throughout my stay in Brussels.
I had the opportunity to present some preliminary results of my research at various
international conferences and receive useful insights and critical comments from such
outstanding scholars in the field as Charlie Jeffery, Liesbet Hooghe, Gary Marks,
Peter Bursens, Jan Beyers, Bart Kerremans, Uwe Leonardy, Stefano Bartolini, Klaus
Armingeon, Gerda Falkner, José M. Magone, Yuri Devuyst, Erik Franckx and Claus
Goetz. Their comments were highly valuable for my study.
I am extremely thankful to all the interviewees who found time to respond to
my questions. The information obtained via the expert interviews with Belgian,
German and Austrian officials at federal and federated levels proved to be a highly
relevant source for my research.
5
6
My deepest gratitude goes to my parents who gave me constant support, and
intellectual and moral feedback throughout the years I spent abroad. I would also like
to thank all my friends who shared my concerns.
Dr. Tamara Kovziridze
Tbilisi, 27 October, 2008
6
7
Contents
1 Introduction 11
1.1 Europeanisation and regional dimension of the European Union 13
1.2 Research questions and research topic 17
1.3 Comparative design, cases and sources 23
1.4 Theoretical framework 29
1.5 Structure of the study 31
2 Theoretical Framework and Conceptual Tools 33
2.1 Theoretical framework 34
2.1.1 The choice for theoretical concepts 34
2.1.2 Hierarchy and interdependence 37
2.1.2.1 What is hierarchy? 37
2.1.2.2 What is interdependence? 43
2.1.2.3 Working definitions and a typology 45
2.1.3 Hierarchy and interdependence in federal theory and
multi-level governance literature 50
2.1.3.1 Federal theory and multi-level governance
literature meet hierarchy 56
2.1.3.2 Interdependence in federal theory and
multi-level governance literature 60
2.2 Conceptual tools: formalised versus non-formalised 67
2.2.1 Concepts to be found in the literature on governance,
organisation sociology and the theory of institutions 68
2.2.2 Working definitions 74
7
8
3 Belgium, Germany and Austria. Three Faces of the Federal Principle 77
3.1 General characteristics 79
3.1.1 History of federalism and the creation of federal states 79
3.1.2 Federal reforms 84
3.1.3 Symmetry versus asymmetry 89
3.1.4 The role of second chambers 93
3.1.5 Ethnic versus territorial principles 98
3.1.6 Competence structures 100
3.2 Various types of competences and division of legislative and
administrative prerogatives 103
3.2.1 Belgium 105
3.2.2 Germany 108
3.2.3 Austria 111
4 Comparative Analysis of Belgium, Germany and Austria 117
4.1 Foreign relations of federated entities in the EU framework 119
4.1.1 A brief theoretical overview 122
4.1.2 Possibilities and instruments of foreign policy making
by federated entities 124
4.1.2.1 Treaty making 127
4.1.2.2 Cross-border and inter-regional co-operation 129
4.1.3 Constitutional competences of federated entities in the field
of foreign policy 139
4.1.3.1 Belgium 139
4.1.3.2 Germany 145
4.1.3.3 Austria 152
4.1.4 Foreign policies of federated entities
Europeanisation of federal relationship structures? 156
8
9
4.1.4.1 Belgium 156
4.1.4.2 Germany 168
4.1.4.3 Austria 181
4.1.5 Summary and conclusions 187
4.2 European policies of federated entities 193
4.2.1 Co-ordination of European policies 196
4.2.1.1 Belgium 196
4.2.1.1.1 Formalised mechanisms 196
4.2.1.1.2 Non-formalised mechanisms 204
4.2.1.2 Germany 207
4.2.1.2.1 Formalised mechanisms 207
4.2.1.2.2 Non-formalised mechanisms 216
4.2.1.3 Austria 225
4.2.1.3.1 Formalised mechanisms 225
4.2.1.3.2 Non-formalised mechanisms 231
4.2.2 Representation in the European Council of Ministers 236
4.2.2.1 Belgium 236
4.2.2.1.1 Formalised mechanisms 236
4.2.2.1.2 Non-formalised mechanisms 240
4.2.2.2 Germany 241
4.2.2.2.1 Formalised mechanisms 241
4.2.2.2.2 Non-formalised mechanisms 243
4.2.2.3 Austria 246
4.2.2.3.1 Formalised mechanisms 246
4.2.2.3.2 Non-formalised mechanisms 248
4.2.3 Summary and conclusions 249
5 Conclusions 255
Bibliography 265
9
10
11
Part 1
Introduction
12
13
1.1 Europeanisation and regional dimension of the European Union
The study of the influence and effects of European integration on domestic structures
and policies of member states has received a substantial scholarly interest in the past
decades. Changes within state structures conditioned by European integration have
been described as Europeanisation.1 The Europeanisation of domestic structures is a
process, in which the European rules, mechanisms and collective understandings
interact with the given domestic structures in the member states. This means that
Europeanisation is not exclusively a top-down process where European mechanisms
are influencing member states structures. It is rather a process, which involves and is
conducted by various levels of the European multi-level structure, and which has an
impact on the interrelationship among these levels.
The growing scholarly interest in the phenomenon of Europeanisation resulted in a
number of studies on the topic. It has been analysed from theoretical as well as
empirical perspectives. Case and comparative studies have concentrated on general
characteristics and trends of Europeanisation as well as on the examination of specific
policy fields such as social policy, regional policy and structural funds, immigration
or implementation. A number of scholars have also analysed Europeanisation of
administrations on the state as well as on the regional levels (Engel, 2002; Falkner,
2001; Knill and Lehmkuhl, 1999; Risse, Cowles and Caporaso, 2001; Vink, 2002;
Bursens, 2002; Olsen, 2002).
Given that Europeanisation involves a process of interaction between European and
domestic sets of institutions and structures, a priori the impact of Europeanisation can
not be the same in various member states. Instead, it is co-determined by domestic
1 It has to be noted here that to define Europeanisation as changes within member state structures conditioned by European integration is only one possible way to describe and understand this phenomenon. There are various definitions of Europeanisation in the literature on the subject. For example, Risse, Cowles and Caporaso define Europeanisation as the emergence and development of distinct structures of governance at the European level (Risse, Cowles and Caporaso, 2001: 1). Robert Ladrech defines Europeanisation as an ‘incremental process reorienting the direction and shape of politics to the degree that EC political and economic dynamics become part of the organizational logic of national politics and policy-making’ (Ladrech, 1994: 70). Olsen gives five possible meanings of Europeanisation. According to Olsen, Europeanisation may refer to changes in external territorial boundaries of the EU, to development of institutions of governance at the European level, to central penetration of national and sub-national systems of governance, to exporting forms of political
13
14
factors to a considerable extent. This does not mean, however, that there are no
similar trends with regard to Europeanisation in various member states and across
various policy fields. Thus, although we can not expect the impact of Europeanisation
to be the homogenisation of domestic structures on the member state level, we can
examine to what extent Europeanisation conditions convergence of domestic systems
towards similar institutional mechanisms.
Some studies of Europeanisation come to the conclusion that the changes that take
place in member state structures as a result of the process of Europeanisation are
leading to a certain degree of convergence towards similar problem-solving and
institutional mechanisms (Börzel, 1999; Börzel, 2002). However, the majority of
scholars tends to emphasise the crucial importance of domestic factors and the
absence of a common institutional model harmonising internal mechanisms and
structures in European states (Olsen, 2002; Engel, 2001; Kovziridze, 2002; Kassim,
Peters and Wright, 2000).2 Whereas case studies point out various degrees of
Europeanisation in member states (Adshead, 2002; Dardanelli, 2002; Graziano,
2002), the majority of comparative studies fail to reveal any significant trend towards
convergence.3 However, it has to be mentioned that research results depend to a great
extent on selected cases and analysed policy fields as various dimensions and
intensities of Europeanisation can be sufficiently assessed only by restricting the
scope of analysis to particular cases, aspects and contexts.
The analysis of the regional dimension of the European Union is one of the essential
pillars of scientific literature on European integration. Scholars of regionalism,
federalism and multi-level governance have dedicated their attention to the role of
regional entities in the multi-level framework of the European Union (see for example
Le Galès and Lesquesne, 1998; Benz and Eberlein, 1999; Danson, Halkier and
organisation and governance distinct for Europe beyond the European territory and to a political project aiming at a unified and politically stronger Europe (Olsen, 2002). 2 The book edited by Kassim, Peters and Wright studies the national co-ordination systems of EU policies in twelve member states and concludes that ‘the systems developed by the member states for the co-ordination of EU policy have been shaped primarily by pre-existing domestic institutional structures and values. This accounts for the pattern of enduring national distinctiveness in the face of common pressures that, it is often assumed, must lead inevitably to convergence’ (Kassim, Peters and Wright, 2000: 253). 3 Apart from Börzel’s work mentioned above, an exception in this context is Ulf Sverdrup’s article on Europeanisation in the field of implementation, which indicates the existence of a Nordic model of implementation (Sverdrup, 2002: unpublished manuscript).
14
15
Cameron, 2000; Engel, 2001; Hooghe, 1995; Krämer, 1998; Loughlin, 2000;
Neunreither, 2001; Hesse, 1995/96; Kohler-Koch, 1998; Nietschke, 1999; Larsson,
Nomden and Petiteville, 1999). A special emphasis has been laid, among other things,
on regional participation in European decision and policy making processes, on the
function and meaning of regional institutions on the EU level, such as the Committee
of the Regions, and on the mobilisation of regional interests in the European
framework. In sum, this literature primarily concentrates on the extensive study of the
growing relevance of regional policies for the changing European structures.
The scholarly debate on European regionalism has left two important aspects out of
scope of the analysis. First, the influence of foreign and European policies of regional
entities on the institutional structures of member states has not yet been explored.
These policies are normally based on various mechanisms and possibilities the
regional entities are given in the EU framework to act beyond the member state
border. Such actions shape and influence not only the European but in the first place
domestic authority structures. In this sense, the changing role and function of regional
entities in the EU context leads to the establishment of particular relationship
structures among various levels in member states.
The degree of regional involvement on the EU level depends on two aspects: top-
down and bottom up. The first has a descending character and refers to the effects of
European integration process on institutional and political structures in member states.
The second is of an ascending nature in the sense that it focuses on how domestic
structures and distribution of competences affect the degree of involvement of
regional entities in the European Union framework. This view is often based on the
assumption that the degree and intensity of regional involvement on the EU level is
highly influenced by the constitutional and legal status of regions on the internal level.
Second, while analysing the regional dimension of the European multi-level polity,
scholars of Europeanisation and regionalism have emphasised the crucial importance
of regional entities’ constitutional status and of the degree of regional involvement in
national decision making structures. Despite this emphasis they dedicated limited
attention to the differentiation between federal states on the one hand, and unitary and
decentralised ones on the other. Such a lack of scholarly attention is striking if we
15
16
consider that academics of various backgrounds have been analysing regionalism and
the regional dimension of the European integration process since at least two decades.
The more so if we take into account that there is a difference between federated
entities that have constitutional sovereign rights on the internal level and can
potentially play a substantial role on the European arena, and territorial entities of
unitary and decentralised states whose involvement in the EU decision making
process remains comparatively modest. In some of these states the regions are
relatively weak and the unified institutional legal mechanisms of regional
participation in EU policy co-ordination on the domestic level are missing.
In general terms, compared to territorial entities of unitary and decentralised states
federated units have a higher degree of institutional autonomy. The latter includes
exclusive legislative and administrative prerogatives as well as formalised
participation rights into federal processes via the second chamber of the federal
parliament or via other institutionalised mechanisms such as interministerial
conferences and various joint inter-level institutions. Hence, regional involvement on
the European level, which is most likely to take source in the institutional position of
regional entities on the internal level, is expected to be the most intensive in federal
states. Partly on urge of federated entities, federal states – more than other member
states in the EU - feel the pressure to respond to the process of European integration
by creating certain mechanisms of involvement and representation of federated units
in the EU decision making process. These mechanisms are on the one hand aimed to
compensate the loss of sovereign powers by federated entities towards the EU. On the
other hand they are seen as a substitute of these entities’ involvement in domestic
decision making in those fields of federal competence that have been transferred to
the EU. Various degrees of involvement of federated entities outside member state
borders in the EU framework have consequences on federal relationship structures on
the domestic level. Such consequences can be described as Europeanisation of federal
forms of governance.
16
17
1.2 Research questions and research topic
Taking the considerations outlined above as a starting point, our study examines
Europeanisation of relationship structures between the levels of governance in federal
member states of the EU established as a consequence of federated entities’ foreign
and European policies. Such a focus of the analysis is based on the concept of
Europeanisation understood as a process of interaction between European and
domestic factors. It covers both top-down and bottom-up dimensions of
Europeanisation in so far as it analyses structural and institutional changes in federal
member states conditioned by processes both at the European as well as at the
domestic – in particular federated – levels. In other words, we analyse
Europeanisation of federal relationship structures established as a consequence of
federated entities policies (bottom-up dimension) in the framework of opportunity
structures created by the European integration process (top-down dimension).
The study is aimed at answering two related questions. First, what is the impact of
European integration on federal relationships established as a consequence of
federated entities’ foreign and European policies in the EU framework? And second,
in this respect does Europeanisation result in similar outcomes in federal states, i.e. a
certain type of common federal model?
To answer these questions the study goes into research fields on federalism, foreign
relations, multi-level governance, European studies and to a limited extent
international law. It has to be emphasised that while examining the existence or
absence of similarities among federal member states of the EU, we will differentiate
between two aspects. First, we will analyse similarity with regard to institutional
models and methods of inter-level co-ordination on the domestic arena, i.e. focus on
Europeanisation of institutional inter-level relationships. Second, we will concentrate
on similarity with regard to structural characteristics of federal states. Hereby we will
examine specific types of relationships between federal and federated levels, and
choose two theoretical concepts, hierarchy and interdependence, to analyse federal
relationship structures (for greater details see sections 1.4 and 2.1).
17
18
The dichotomy between formalised and non-formalised mechanisms is essential to
this study. While analysing relationship structures between the federal level and
federated entities we will draw a distinction between formalised and non-formalised
interaction patterns, and will analyse these from a comparative perspective. Simple as
they seem to be, both terms have a very broad meaning, which requires certain
specifications in order to make these terms applicable to particular contexts. In
contrast to a number of scholars who have used the terms ‘formal’ and ‘informal’
(Blatter, 2001a; Mayntz, 1993; Peters and Pierre, 2001; Rosenau, 2001; Thompson,
1976), we will differentiate between ‘formalised’ and ‘non-formalised’ relationship
patterns. Such a differentiation is meant to draw a clear distinction between
relationship structures with and without a binding legal basis irrespective of the fact
whether they take place within institutional settings or not. Apart from that we chose
the terms formalised and non-formalised to avoid a somewhat negative connotation of
the word ‘informal’, which is often associated with ‘unofficial’.
In order to characterise relationship structures as formalised two conditions have to be
given. First, these relationships have to be regulated by the constitution or any other
legally binding document such as laws or intergovernmental agreements. Second, the
relationship structures must take place within previously structured institutional
mechanisms exercised on a regular basis. Thus, formalised relationship structures are
legalised as well as institutionalised.
Non-formalised relationships, on the contrary, refer to factual patterns of interaction,
which take place outside the legally envisaged institutional settings. Non-formalised
mechanisms are neither constitutionalised nor codified in other legally binding
documents. Within non-formalised relationship structures, the involvement of certain
institutions is not obligatory and may grow out of practice. They take place on an
irregular and non-legalised basis. However, non-formalised relationships, which are
by no means legalised, can be institutionalised to a certain degree.
These two types of interaction patterns are not mutually exclusive and the borders
between them are permeable. Non-formalised mechanisms exist side by side with
formalised institutional settings and often emerge within the structure or in the
18
19
shadow of formalised rules. Even if it is not always possible to differentiate between
them clearly, it is essential to point out their existence and to examine both.
As far as federated entities’ involvement in European multi-level structures is
concerned, this study concentrates on and differentiates between two types of
activities. The first encompasses foreign relations of federated units with sovereign
states, federated and regional entities, and cross-border and inter-regional
establishments. For the purpose of the study these relations are geographically
restricted and include bilateral and multilateral activities conducted by federated
entities only within the European Union framework. Aimed at establishing contacts
beyond the member state border, such activities normally bypass the central state.
Foreign relations of federated entities within European structures may be encouraged
from above by launching specific initiatives – the most notable of which is the EU
Commission’s program INTERREG – to establish cross-border and inter-regional
contacts and institutionalised structures. Apart from these top-down incentives,
bottom-up initiatives of regional entities aim at establishing regional networks on a
cross-border and inter-regional scale. Such an example is the Flemish initiative
launched in 2000, which is targeted at strengthening constitutional regions in the EU
framework (for more details on this initiative see section 4.1.4.1). Foreign relations of
federated entities, including inter-regional and cross-border co-operation, may
develop with or without a legal basis. As far as legally regulated foreign activities are
concerned, these take place either on the basis of an international treaty – in case
federated entities avail of constitutional treaty making powers – or on the basis of an
agreement that does not have the status of a treaty under terms of international law
and is instead regulated by domestic, i. e. either public or private, law. We have
mentioned above that despite the high relevance accorded to regional foreign relations
both by regional entities themselves as well as by European authorities, the study of
Europeanisation in the field of external relations of regions has not yet received any
substantial scholarly attention. This study can be viewed as a first step aimed at filling
the gap.
The second type of activities of federated entities analysed in this study is referred to
as European policies. For the purpose of the study, under European policies we
19
20
subsume two different activities of federated entities in the framework of the
European Union. The first takes place on the member state level but aims at having an
impact beyond the federal state on the EU level. These activities by federated entities
take place in close co-operation with the federal level in the framework of domestic
inter-level co-ordination mechanisms and processes designed to formulate member
state positions. These positions are at a later stage represented in the EU institutional
structures. Federated entities try to co-determine respective member states’ positions
with regard to European dossiers as much as possible. The second activity in the
framework of European policies of federated entities analysed in this study comprises
the involvement of these entities in domestic systems of institutional representation at
the EU level. Such systems of representation are designed on the member state level.
Also the decisions on who represents the member states in the EU are made on the
internal level, normally jointly by federal and federated authorities.
Thus, in contrast to foreign relations, European policies of federated entities are not
and can not be developed independently by these entities. Instead, they are based on
intensive interaction processes between federal and federated orders and can only be
exercised in the framework of inter-level mechanisms of co-ordination and co-
operation in respective member states. Hence, European integration makes a certain
degree of intermediation among federal and federated entities on the domestic level
necessary. It leads to the establishment of certain relationship structures between the
two levels that interact with each other in the broader multi-level framework of the
European Union.
However, although the establishment of federal relationship structures in various
federal EU member states is induced by the European integration process, concrete
types of federal relationships in respective federations are co-determined by
institutional and structural characteristics of these federal states. For example, both
types of federated entities’ activities to be analysed in this study - foreign relations as
well as European policies - are to a large extent influenced by the internal federal
balance and the competence structure in respective federal member states. This means
that similar domestic arrangements and constitutional mechanisms should a priori
contribute to similar results with regard to Europeanisation of federal relationship
structures established as a consequence of federated entities’ foreign and European
20
21
policies. Taking this assumption into consideration, it has to be found out whether
there is any similarity among federal member states of the European Union, and if so,
to what extent.
21
22
23
1.3 Comparative design, cases and sources
In order to answer the two research questions formulated above, the study analyses
the three federal member states of the European Union, Belgium, Germany and
Austria. It is structured around three case studies, which are examined from a
comparative perspective. The cases for the comparative analysis have been selected
according to the following criteria.
First, according to their constitutions, the three polities are the only federal member
states of the European Union. This means that the constitutions of Belgium, Germany
and Austria are the only ones that represent a legal concretisation of the federal
principle.4
Second, according to all three federal constitutions, federated entities possess certain
competences in the field of foreign policy making, which allow them to conduct
external activities of their own choice. For example, Belgian Regions and
Communities as well as German and Austrian Länder have the competence to
conclude treaties under terms of international law in fields that correspond to their
internal legislative and administrative prerogatives.5 Thus, in the three states the
competence to conduct foreign policy and in particular to conclude international
treaties is not, at least on the formalised level, concentrated under the sole
responsibility of the federal government. Federated entities avail of constitutionally
guaranteed rights to conduct external relations parallel to those of the federal level.
However, in practice none of the levels can act entirely independently in the field of
foreign relations and as a consequence of co-ordinated policies and interaction
processes on the domestic level specific types of relationship structures are
established between them.
4 For constitutional codification of federal character of the three states see Article 1 of the Belgian Constitution, Article 20 of the German Constitution (Basic Law, in German Grundgesetz) and Article 2 of the Austrian Constitution (Bundesverfassungsgesetz (B-VG)).5 Treaty making powers of Belgian, German and Austrian federated entities are regulated respectively in Article 167 of the Belgian Constitution, Article 32 of the German Constitution and Article 16 of the Austrian Constitution.
23
24
Third, as far as European policies of federated entities are concerned, in the three
selected federations certain unified legal procedures have been designed to guarantee
the involvement of federated entities into the process of European policy making.6 As
all federated entities in each of the three federal states were given equal rights to
participate in the domestic co-ordination process of European policies, a considerable
degree of symmetry has been established in the three federal states in this respect.
This makes it possible to analyse formalised relationship structures between federal
and federated levels and to compare them with non-formalised relationship patterns.
Fourth, the three federations have established legal mechanisms of direct involvement
of federated entities in the EU Council of Ministers in accordance with Article 203 of
the Treaty of Amsterdam.7 This makes it possible to examine formalised and non-
formalised mechanisms of federal representation at the EU level from a comparative
perspective. Participation of federated entities in these systems of representation can
be considered as part of their European strategy. Moreover, Belgian, German and
Austrian legal regulations with regard to federal representation at the EU level open
up a possibility for federated entities to head respective member state delegations in
the Council of Ministers. In this respect the three federal states differ from other
member states of the Union although some of these member states have also
established certain mechanisms of regional entities’ participation in the meetings of
the Council.8
6 In Belgium, the Co-operation Agreement between the Federal State, the Communities and the Regions concerning the Representation of the Kingdom of Belgium in the Council of Ministers of the European Union concluded on 8 March 1994 regulates the involvement of federated entities in the domestic co-ordination process of European policy making. In Germany, the participation of the Länder in the German mechanisms and processes of European policy co-ordination is regulated by Article 23, 2, 4 and 5 of the Constitution and the Law on Co-operation between the Bund and the Länder in Matters of the European Union of 12 March 1993. In Austria, Article 23d, 1 and 2 of the Constitution and the Agreement between the Bund and the Länder According to Article 15a of the Federal Constitution on Participation Rights of the Länder and Municipal Entities in Matters of European Integration, concluded in March 1992, regulate the involvement of the federated entities in the process of co-ordination of European policies on the domestic level. 7 Possibilities of direct involvement of Belgian, German and Austrian federated entities in the European Council of Ministers are regulated in Belgium in the Co-operation Agreement of 8 March 1994 mentioned in the previous footnote, in Germany - in Article 23, 6 of the Constitution and the Law on Co-operation mentioned in the previous footnote, and in Austria – in Article 23d, 3 of the Constitution and the Bund-Länder agreement also mentioned in the previous footnote. 8 For example, as a result of the process of devolution in the UK, the ministers of the devolved entities obtained the right to attend the meetings of the Council of Ministers as members of the UK delegation. Decisions on ministerial attendance are taken on a case-by-case basis by the leader of the UK delegation. In appropriate cases the latter may allow the ministers of devolved entities to speak for the UK in the Council. However, these ministers do not have the right to be the leader of the member state
24
25
Fifth, despite the similarities described above, the three federal states are different as
far as their historical background, societal composition, and institutional and
competence structures are concerned. The existence of these differences is an
inspiration for a comparative analysis. The intention is to find out whether in spite of
these differences there is any similarity among the three federal states regarding the
Europeanisation of federal forms of governance.
The combination of cases in our analysis is different from other cross-federal studies.
Most EU-wide comparative studies have either compared only two constitutionally
federal states with each other (for example Mörsdorf, 1996; Schweizer and Brunner,
1998; Roller, 1998) or have examined two or more federal and quasi-federal states
from a comparative perspective (Hanf, 1999; Börzel, 2002; Keating 1999a;
Neunreither, 2001). Some studies have compared two federal member states of the
EU, Germany and Austria, with Switzerland (for example Blatter, 2001b). Limited
attention has been dedicated to a systematic comparative analysis of the three
constitutionally federal member states of the EU, Belgium, Germany and Austria. The
present study is aimed at filling this gap.
It should be noted here that whereas the three member states of the European Union
under consideration in this study are federations according to their constitutions, in a
number of member states decentralisation – for example Spain and Italy – and
devolution – for example the United Kingdom - processes are underway. Based on
their constitutions and other legal regulations, these states can not be classified as
federations in the conventional meaning of the term. However, a closer examination
of their institutional structures and constitutional provisions shows that some of them
posses a number of federal characteristics (see for example Hanf, 1999).
Such characteristics are most obvious in the Spanish state structure. It is still contested
among scholars of federalism whether Spain can be labelled as a federation or not. In
contrast to the Belgian, German and Austrian Constitutions, which explicitly regulate
delegation. Devolved entities’ representation in UK delegations to the Council are regulated in the Memorandum of Understanding and supplementary agreements between the UK Government, Scottish Ministers, the Cabinet of the National Assembly for Wales and the Northern Ireland Executive Committee, concluded first in 1999 and last renewed in 2002. In practice, devolved entities’ ministers have spoken for the UK in the Council of Ministers on several occasions.
25
26
that these states are federations, the Spanish Constitution (SC) remains silent about
the type of state structure and the number of regional entities that constitute the state.
For the moment, the process of division of the Spanish state into territorial entities is
concluded and since 1983 Spain is composed of seventeen regional entities, called
Autonomous Communities (Comunidades Autónomas). Consequently, Spain is
frequently referred to as a state of autonomies. The Spanish Autonomous
Communities (ACs) possess wide ranging legislative competences and some of them,
for example the Basque Country and Navarre, even avail of a high level of fiscal
autonomy. According to Nicolas Schmitt, ‘at present, the Spanish state can not be
described as federal, but it has the constitutional potentiality to become a federal state’
(Schmitt, 1994: 367). Scholars, who have tried to identify the type of state structure in
Spain, concluded that the Spanish state of autonomies is a quasi-federal or a pre-
federal polity (on features of the Spanish state structure see among others Hanf, 1999;
Agranoff, 1999b; Moreno, 1999; Keating, 1999a; Schmitt, 1994; Neunreither, 2001).
It is not the aim of this study to answer the question whether Spain is a federal state or
not. Although it can not be rejected that Spain has a number of characteristics typical
for a federation and its decentralised entities avail of a high level of autonomy, the
Spanish system is for two reasons not a suitable case for the comparative research
undertaken in this study.
First, compared with federated entities of the three federal states under consideration
in this study, the Spanish Autonomous Communities have limited competences in
fields of foreign relations and European policy making. According to Article 149, 1 of
the Spanish Constitution, the central state holds the exclusive competence to conduct
foreign relations. The Constitution does not attribute any competences to the
Autonomous Communities in this field. The Constitutional Court of Spain confirmed
by its decision in 1989 that treaties concluded by the Autonomous Communities
violated the exclusive power of the central state to conduct foreign relations (Schmitt,
1994: 375).9
9 This decision of the Constitutional Court concerns the conflict between the central government and Galicia regarding a joint agreement signed between the Galician department for town and country planning and the General Directorate of Environmental Protection of Denmark in 1985. The Constitutional Court decided to abolish the agreement (Schmitt, 1994: 373).
26
27
As for the involvement of the Spanish Autonomous Communities in the EU Council
of Ministers according to Article 203 of the Amsterdam Treaty, in contrast to
Belgium, Germany and Austria, no such involvement rights exist in Spain. Despite
the repeated demands of the Autonomous Communities, the central state has been
unwilling to allow the decentralised entities to send their representatives to the
Council of Ministers as members of the Spanish delegation when the exclusive
competences of these entities are affected by European regulations. Moreover, the
Autonomous Communities do not have the right to any type of formalised
participation in the decision making bodies of the European Union. In 1997 the
Spanish central government agreed that the Autonomous Communities could send
their representatives to 55 out of more than 400 advisory committees and working
groups of the European Commission (comitology) as members of the Spanish
delegation. But due to the resistance of the Ministry of Foreign Affairs, the central-
state administration has not formally approved the agreement. However, since 1998
the Autonomous Communities participate informally in various working groups and
committees of the Commission (for more details see Börzel, 2002: 131-132).10
Second, the exclusion of the Spanish state from our analysis can be explained by the
focus and the research question of the study. The aim of the latter is to examine the
impact of European integration on relationship structures between federal and
federated levels. As mentioned above, Spain is a quasi- or a pre-federal state. We
have seen that in fields of foreign relations and European policy its Autonomous
Communities have more limited competences than the federated entities of the three
federal states under consideration in this study. For this reason we exclude Spain from
the actual analysis, but do not neglect it altogether. We will draw certain parallels
with the Spanish system and the three federal states only in so far as this may appear
interesting for our analysis.
planning and the General Directorate of Environmental Protection of Denmark in 1985. The Constitutional Court decided to abolish the agreement (Schmitt, 1994: 373). 10 As far as the participation possibilities of the Autonomous Communities in European policy making via domestic mechanisms of inter-level co-ordination are concerned, since 1994 there exist formalised mechanisms of co-ordination between the Autonomous Communities and the central state. Vertical co-ordination takes place in the structure of intergovernmental sectoral conferences specifically designed with the purpose to co-ordinate questions related to European integration.
27
Besides the study of the secondary literature and legal documents, the comparative study of
the three cases is largely based on expert interviews conducted by the author with
representatives of Belgian, German and Austrian federal and federated entities between
March 2001 and August 2003. Each interview lasted about 60 minutes and served the aim to
obtain information concerning the practice of federal-federated relations, non-formalised
patterns of inter-level co-ordination and examples illustrating these relationship patterns. The
information obtained via these interviews provided a valuable source for the case studies.
The interviews were semi-structured. This means that although the questions were prepared in
advance, the conversations with the interviewees did not have a strictly predetermined
structure and a number of follow-up questions that normally arose during the conversation
were asked by the author. The interviewees were determined first, according to the institution
they are affiliated to and second, according to their position in these institutions. Based on
these criteria authorities on the federal and federated levels involved in the processes of inter-
level co-ordination analysed in the study were selected. The interviews were conducted in
English, German and French. As agreed with the interviewees, their names are not cited in the
text.
28
29
1.4 Theoretical framework
This study analyses Europeanisation of relationship structures between federal and
federated levels by applying to these relationships two theoretical concepts, hierarchy
and interdependence. These particular theoretical concepts have been selected for a
number of reasons, which are explained in greater detail in section 2.1 of the study. At
this stage we will only briefly introduce both concepts.
The concepts of hierarchy and interdependence have been designed and applied to
explain relationship structures between various entities and levels in different spheres
of social life (on hierarchy see among others Herbst, 1976; Chrisholm, 1989;
Lindblom, 1965; Simon, 1975; Kontopoulos, 1993. On interdependence see among
others Keohane and Nye, 1989; Chrisholm, 1989; Thompson, 1967). Hierarchy is a
vertical structure of inter-level relationships in the first place characterised by
unilateral dependence of lower levels on higher ones. Interdependence is also a
structure of relationships. However, in contrast to hierarchy, it is characterised by
mutual dependence. Interdependent relationships may be structured across vertical
and/or horizontal lines and consequently mutual dependence may have vertical and/or
horizontal dimensions. Both concepts are essential to the analysis of relationships
between federal and federated levels in so far as in federal polities none of the levels
can act independently. Instead, such polities are structured around unilateral – like in
hierarchy - or mutual – like in interdependence - lines of institutional dependence of
entities on each other. In this sense, hierarchy and interdependence appear to be
suitable conceptual tools to explain multi-level and in particular federal dynamics.
Federal theorists and scholars of multi-level governance have identified either
hierarchy or interdependence, or both at the same time, as features characterising
federal and multi-level systems (for scholars of federalism see among others
Grodzins, 1970; Elazar, 1997; Bernier, 1973; Vile, 1961; Wheare, 1951; Frenkel,
1986; Friedrich, 1964. For multi-level governance scholars see among others Sand,
1998; Rosenau, 1997; Loughlin, 2000; Hooghe, 1995, Benz and Eberlein, 1999).
However, these considerations predominantly remained of theoretical nature and
students of federal and multi-level structures have not yet dedicated their attention to
29
30
the analysis of federations from the point of view of hierarchy and/or
interdependence. From this perspective, it is interesting to find out to what extent
hierarchy and interdependence characterise federal states embedded in multi-level
decision making structures such as that of the European Union.
The concept of hierarchy is particularly interesting for the study of foreign and
European relations of federated entities. Principles of international law governing the
field of foreign relations, such as indivisibility of sovereignty on the external level,
imply the existence of a certain degree of hierarchy between sovereign states and non-
sovereign entities. As international law does not differentiate between federal and
unitary states and treats them all as unitary actors on the international arena, the
principles of international law equally apply to all states. It is particularly interesting
to analyse federal relationship structures from the point of view of hierarchy in those
federations, in which the federated entities possess certain competences in the field of
foreign policy but are not considered as sovereign on the international level. As
mentioned above, the three federations selected for a comparative analysis in our
study belong to this category.
Also certain regulations in the framework of the European Union are based on
principles of international law in as far as they treat member states as single actors
irrespective of their domestic structure. Article 203 of the Treaty of Amsterdam, for
example, allows the representatives of regional governments to head member state
delegations in the European Council of Ministers. However, regional ministers are
obliged to represent the respective member state as a whole and not their regional
entity at the European Union level. This means that the principle of international law,
‘one state one voice’, is fundamental not only in the field of foreign relations but also
in the politics and structures of the European Union. A priori it contributes to the
establishment of a certain degree of hierarchy between federal and federated levels.
30
31
1.5 Structure of the study
The study is divided in five parts. The first parts is an introduction to the study. It
specifies the research topic and research questions and explains the choice of the
theoretical framework and concepts as well as of the cases, which are later analysed
from a comparative perspective. Apart from that the introductory part gives a brief
overview of the academic state of the art with regard to the research questions and
attempts to show the relevance of the latter.
The second part provides a theoretical framework and explains the conceptual tools
applied in the study. First, the theoretical concepts of hierarchy and interdependence
are introduced. After a review of the theoretical literature on hierarchy and
interdependence, a brief comparative analysis of these terms is given and then the
working definitions and a typology are developed. Second, these theoretical concepts
are located into a broader theoretical framework composed of federal theory and
multi-level governance literature. This section highlights to which extent scholars of
federalism and multi-level governance authors refer to hierarchy and interdependence
as elements that characterise relationship structures they analyse. Different groups of
authors are identified in this context. Apart from that, part two explains the dichotomy
between formalised and non-formalised mechanisms and relationship patterns
between federal and federated levels.
The third part gives a brief overview of general principles and characteristics of the
three federations analysed in the study. Among other things a special emphasis is laid
on systems of division of legislative and administrative prerogatives between federal
and federated levels of authority. Domestic competence structures are essential in so
far as they determine to the greatest extent powers and prerogatives of territorial
entities in the fields of external relations and European policies.
The fourth part is dedicated to the comparative analysis of the three cases. It applies
the theoretical concepts introduced in the second part to federal relationship structures
in Belgium, Germany and Austria, and analyses these from the point of view of
hierarchy and interdependence. This part is subdivided in two chapters. The first
31
32
subdivision of part four (chapter 4.1) analyses foreign relations of Belgian, German
and Austrian federated entities including their treaty making activities and cross-
border and inter-regional relations. The second subdivision of part four (chapter 4.2)
examines European policies of Belgian, German and Austrian federated entities.
These are exercised predominantly on the internal level in co-ordination with the
federal government and can be referred to as domestic activities with an impact on the
European level. The mechanisms of co-ordination of European policies on the
member state level as well as the systems of federal representation in the Council of
Ministers of the EU are analysed in this part. A special stress is laid on the dichotomy
between formalised and non-formalised relationship patterns.
The last fifth part of the study gives a summary and conclusions. It is aimed at
answering the research questions introduced in the first part of the study. Apart from
that, based on the conclusions of this study the final part outlines possible questions
for a future research agenda on Europeanisation of domestic institutional
relationships.
32
33
Part 2
Theoretical Framework and
Conceptual Tools
34
2.1 Theoretical framework
2.1.1 The choice for theoretical concepts
This dissertation analyses Europeanisation of institutional relationships between
federal and federated orders from the point of view of hierarchy and interdependence,
and examines for this purpose three federal member states of the European Union,
Belgium, Germany and Austria. The choice for these two theoretical concepts –
hierarchy and interdependence - has been conditioned by a number of reasons
outlined below.
First, the concepts of hierarchy and interdependence have frequently been utilised by
scholars of federal theory to describe federal systems in general. In the theoretical
literature, various authors who attempted to define federalism have identified either
hierarchy or interdependence as one of the essential characteristic features of federal
structures. However, little scientific interest has been dedicated so far to the
theoretical assessment of inter-level relationship structures in federal polities by
applying the concepts of hierarchy and interdependence to federations. In this sense,
the theoretical debate among scholars with regard to characteristic features of federal
states remained rather abstract. What has been repeatedly stated in theoretical terms,
has not yet been systematically tested by means of examining various federal
constitutional options or institutional structures.
Second, while analysing inter-level processes in the European context, scholars of
multi-level governance have utilised similar terms as federal theorists. They have
characterised the European multi-level polity as a mixture of different modes of
governance, in which hierarchy among levels is eroding and interdependence gains a
growing importance. According to the vast majority of scholars who analyse multi-
level governance, hierarchical decision structures are gradually loosing their
importance, whereas an increasing degree of interdependence is shaping interaction
processes among various orders (for example Hooghe, 1995: 178; Hooghe, 1996: 15;
Sand, 1998: 283-284). Given that the three federal states we analyse in this study are
part of the European Union’s multi-level decision making structure, it appears
34
35
interesting to find out to what extent hierarchy and interdependence characterise
federal states embedded in European multi-level processes. Since these multi-level
processes have to a large extent been characterised as interdependent, the question
that should be asked in this context is whether European multi-level processes
influence federal structures and cause a shift towards federal relationships
characterised by a higher degree of interdependence. In other words, are federal
polities involved in the multi-level structures of the European Union also
characterised by diminishing hierarchical modes of governance and by growing
interdependence among the levels – features that are considered to be typical for
multi-level polities?
Third, the concepts of hierarchy and interdependence are essential to the study of
interrelationship structures between various levels of governance. Hierarchy and
interdependence refer to relationship patterns characterised respectively by unilateral
and mutual dependence of levels on each other. Both federal and multi-level polities
are structured around relationships among levels of authority. In such polities entities
on various levels are forced to interact with each other as power and resources are
divided and balanced among them in such a way that single levels can seldom make
decisions alone. Relationship structures among them are predominantly hierarchical if
structured around unilateral dependence of lower levels upon higher ones. Mutual
dependence, if present to a sufficient extent, counterbalances hierarchical structures
and leads to interdependent relationships between the levels.
Fourth, the concept of hierarchy is particularly interesting for the study of foreign and
European policies of federated entities. Whereas sovereignty may be divided on the
domestic level and federal order as well as federated entities normally possess their
exclusive, so-called sovereign rights, international relations are based on the principle
of indivisible sovereignty expressed in the formulation ‘one state one voice’. Under
terms of international law sovereignty is indivisible on the external level. Applied to
federal states, the principle of indivisible external sovereignty leads to a situation
where the constitutional responsibility to conduct foreign policy is in the hands of the
federal government. This in turn leads to a certain degree of hierarchy between federal
and federated orders in the field of external relations.
35
36
It has to be mentioned that in contrast to unitary and decentralised polities, some
federal states do open certain constitutional possibilities of foreign policy making to
their federated entities. However, the international legal order does not differentiate
between federal and unitary states and the principle of indivisible external sovereignty
in international law applies to all states irrespective of their internal structure. In
federations, federated entities possess certain qualities of statehood such as legislative,
executive and judicial tiers of government, flags and sometimes even their own
constitutions. As a rule they also avail of a number of exclusive constitutional
competences on the internal level.
As far as external relations are concerned, participation of federated entities in the
process of federal foreign policy making is normally guaranteed by means of various
institutional mechanisms, especially in cases where federal foreign policy initiatives
affect exclusive constitutional competences of federated entities. Some federal
constitutions even grant federated units certain, normally limited, possibilities to
develop own contacts with outside partners and conduct foreign policies of their
choice. Federated entities in some federations even have the competence to conclude
treaties under terms of international law in fields of their domestic legislative and
administrative competences.
However, these activities by federated units are normally subject to certain control
mechanisms from the side of federal governments. It is in this context that the concept
of hierarchy comes into play. As mentioned above, the federated entities of the three
federations selected for a comparative analysis in this study possess certain
constitutional foreign policy competences, which allow them to act sometimes even
parallel with the federal government in the field of foreign relations (see section 1.3).
The present study will analyse federal relationship structures originated in this context
from the point of view of hierarchy in order to examine to what extent foreign policy
making is dominated by the federal level in those federations, where federated entities
have the most far-reaching competences in this field.
Although European policies are neither foreign nor domestic policies in the
conventional meaning of the term, certain European mechanisms widely correspond
and function according to principles of international law outlined above. Article 203
36
37
of the Treaty of Amsterdam, for example, allows regional authorities on the
ministerial level to represent their member state in the European Council of Ministers.
However, as each member state is supposed to speak with one voice, regional
ministers are obliged to represent the state as a whole and not the respective regional
entity. In this sense, the principle ‘one state one voice’ remains fundamental not only
on the international level but in the EU context as well.
Thus, there are a number of reasons why hierarchy and interdependence should be
considered as suitable concepts for the analysis of federal states embedded in broader
multi-level decision making structures such as that of the European Union. We have
seen that these two concepts are relevant for the study of relationship structures
among various orders in federal states and in particular for the examination of inter-
level relationships in the field of foreign and European policy making by federated
entities.
2.1.2 Hierarchy and interdependence
In what follows we will first define hierarchy and interdependence based on various
concepts to be found in the literature on the subject. Second, we will highlight to what
extent federal theorists and scholars of multi-level governance identify hierarchy and
interdependence as features characteristic for the multi-level structures and processes
they analyse. In so doing we will locate the two concepts in a broader theoretical
framework composed of federal theory and multi-level governance literature.
2.1.2.1 What is hierarchy?
The word hierarchy is of Greek origin and means sacred rule. Originally used in the
religious sphere, it was later secularised and increasingly applied to almost all the
spheres of political and social life, with the meaning of order of precedence
(Brockhaus Enzyklopädie, 1989: 64-65; Ritter, 1971: 1123-1125).
On examination we discover that hierarchy in its traditional meaning signifies a
structure of dependence, in which relationships among different levels are based on
37
38
vertical channels of communication. For example, in a hierarchical structure with
three levels - A, B and C - the communication linkages between these levels are such
that level C can not have a direct access to level A because it can not bypass level B.
Level C has to rely on B’s role as gatekeeper to A. In such structures each level is
nested in and dependent on the level above it. Within a hierarchical division of
functions each level is responsible for tasks allocated solely to it. As Jeremy Mitchell
puts it, ‘ultimate authority resides with those at the “top”, and at each level those
involved carry out more narrowly-defined tasks with less and less autonomy’
(Thompson, Frances, Levačić and Mitchell, 1991: 105). Such a structure implies the
existence of dominant players on upper levels, whose position is based on the
resources available to them. They can dispose of more control mechanisms and
greater autonomy than lower decision making levels and are in charge of the most
important tasks.
There was great scientific interest in the concept of hierarchy in the 1970s and 1980s
(see for example Chrisholm, 1989; Herbst, 1976; Laumann, Siegel and Hodge, 1970;
Tannenbaum, Kevčič, Rosner, Vianello and Wieser, 1974). At that time, sociologists
as well as philosophers, political scientists and economists used the term to refer to a
relationship structure comprising different levels, which is organised across vertical
lines of communication and is based on preponderance of higher levels over lower
ones. From a sociological perspective, a hierarchical structure comprises different
social levels (classes) of society and is the opposite of equality between individuals.
In organisation sociology it is used, often synonymously with bureaucracy, as a
specific form of organisation in addition to market- and network-like structures.11 In
the theory of international relations it is understood as the opposite of anarchy
between states, and in economics, hierarchy is opposed to market structures.
11 Burns and Stalker distinguish between and compare ‘mechanistic’ and ‘organic’ forms of organisation. According to Burns and Stalker both are rational forms of organisation in the sense that they are ‘explicitly and deliberately created and maintained’ (Burns and Stalker, 1961: 119). In contrast to organic organisations, that are decentralised and co-ordinated through mutual adjustment and horizontal contacts, a mechanistic organisation is a hierarchy in the Weberian sense of the word. Stressing specialisation, it subdivides tasks into more specialised ones and achieves co-ordination via centralised planning, hierarchical direction and control. Communication between members is predominantly vertical, i.e. takes place between a superior and a subordinate. All these lead to vertically deep bureaucracies. Organic organisations have a network structure of authority, control and communication. Hereby communication consists of information and advice rather than of instructions and command. However, Burns and Stalker emphasise that although organic organisations are not
38
39
Common to all these perspectives is the view that hierarchical structures have a
pyramidal form with the number of units increasing at lower levels. As the lower
levels are nested into the higher ones, hierarchical structures are difficult to overcome.
Supervision is exercised from above and lower levels function according to the needs
of higher ones. Hierarchy is a method, a way of organising. This means that
hierarchical structures are created on purpose. Their creation is based on the division
of resources, which comprise rights, powers, competences as well as access to
information. In a hierarchical structure division of these resources takes place
according to a particular pattern which is by no means based on equality between the
levels. As a result, higher levels possess more resources.
It should be noted that not only the quantitative aspect of the division of resources, i.e.
the amount of available resources, is decisive but also the autonomy in utilising them.
In a hierarchical structure the autonomy of lower levels is reduced in such a way that
a limitation is imposed from above on their right to use their resources in whatever
way they choose. This means that the resources of lower levels are controlled from
above. Such mechanisms of control make lower levels dependent on higher ones.
Hierarchy is a rigid type of inter-level co-ordination, as in hierarchical structures
previous interactions shape current ones and informal relationships do not have much
room to develop.
Describing general types of co-ordination processes Charles E. Lindblom starts with a
differentiation between centrally regulated decision making and decision making
through mutual adjustment. What he describes as centrally regulated decision making
or central co-ordination can be interpreted as a hierarchical structure, in which
‘decision makers adapt to one another on instruction from a central decision maker’. It
is a pyramidal model of co-ordinated decision making in which co-ordination is
achieved from above and where normally a number of decision makers is subject to
co-ordinating decisions made immediately central to them (Lindblom, 1965: 25). Co-
ordination by mutual adjustment, on the contrary, is not centralised. The most notable
forms of mutual adjustment are negotiation and bargaining. Lindblom does not
exclude a possibility of mixed co-ordination, which unites the elements of both
hierarchical to the same extent as mechanistic organisations, the former remain stratified (Burns and Stalker, 1961: 119-125).
39
40
extreme examples of decision making, central regulation and mutual adjustment. He
calls such co-ordination mixed central and non-central co-ordination, but does not
identify this as a third type. Instead, a third type of decision making is called ‘co-
ordination through agreed acceptance of rules of behaviour’. Under such
circumstances it is specified beforehand ‘how, in any case of interdependence, each
decision in a set is to be adjusted to each other’ (Lindblom, 1965: 27). According to
Lindblom, this third type of co-ordination can be considered as a sub-type of
centralised (hierarchical) co-ordination, because the rules of behaviour are set by a
central co-ordinator (Lindblom, 1965: 28).
P. G. Herbst stresses the difference between hierarchical and non-hierarchical
organisations. There are two basic assumptions that generate a hierarchical structure:
first, the decomposability of tasks into smaller independent bits and second, the
allocation of a single task element to each unit. According to Herbst, a hierarchical
structure has the following six characteristics: (a) a single structure of relationships,
(b) a uniform type of superior-subordinate relationship, (c) a clearly demarcated
boundary between tasks executed by units or persons, (d) decisions about task
performance are made by the superior level for the subordinate one, (e) decision
making is split from task performance, (f) the top level is left with decision making
but not necessarily task performance, while the bottom level is engaged in task
performance but not necessarily in decision making (Herbst, 1976: 18-19).
According to Herbst, two features distinguish hierarchical organisations from non-
hierarchical structures.12 First, non-hierarchical organisations may function on the
basis of various types of structures at the same time whereas hierarchies are
characterised by a single structure of relationships. Herbst calls this feature of non-
hierarchical organisations ‘the capacity for multi-structured functioning’. Second,
non-hierarchical organisations have the capacity to achieve and maintain
organisational relationships, which support the individual autonomous development
of members. The latter may be working independently or in smaller subsets (Herbst,
1976: 32). This is different from hierarchical organisations where a rigid demarcation
12 Herbst differentiates between three types of non-hierarchical organisations: composite autonomous group, matrix group and network group. For an extensive description of these forms of organisation see Herbst, 1976: 29-34.
40
41
of task performance and decision making activities leaves a very limited degree of
independence to single entities.
Herbert Simon has developed another concept of hierarchy. Simon argues that
complexity often takes the form of hierarchy and complex systems13 evolve into
hierarchical structures. Simon defines hierarchy as a ‘system that is composed of
interrelated subsystems, each of the latter being, in turn, hierarchic in structure’
(Simon, 1975: 87). In this context, Simon understands the entire system as hierarchy
whereby separate subsystems have the function of single levels within a hierarchy.
Subsystems are also referred to as components of a hierarchy. Simon’s working
definition of hierarchy includes systems in which each subsystem is ‘subordinated by
an authority relation to the system it belongs to’ as well as systems where there is no
relation of subordination among the subsystems (Simon, 1975: 87-88). In hierarchical
systems, Simon distinguishes between interactions among subsystems (i.e.
components) and interactions within subsystems, and argues that ‘intracomponent
linkages are generally stronger than intercomponent linkages’ (Simon, 1975: 106).
This means that in hierarchies links among units within subsystems are stronger than
links among single subsystems.
Based on this differentiation, Simon states that at least some hierarchical structures
can be described as nearly decomposable systems. In order to explain the concept of
near decomposability, Simon introduces the time dimension in his analysis.
According to him, in a nearly decomposable system, the subsystems are in the short-
run approximately independent from each other as far as their behaviour in concerned.
In the long run, the behaviour of any component of the system depends only in an
aggregate way on the behaviour of the other components (Simon, 1975: 100).
Kontopoulos makes an attempt to highlight the essence of hierarchy by putting it in
relation to other forms of inter-level relationship structures, which he calls inter-level
orderings. According to Kontopoulos, inter-level orderings can be divided in two
categories, non-nested and nested relations. For us interesting is the second category
13 By a complex system Simon means a system ‘made up of a large number of parts that interact in a nonsimple way. In such systems, the whole is more than the sum of the parts’ (Simon, 1975: 86).
41
42
of inter-level orderings, the so-called nested relations.14 According to Kontopoulos
‘nesting implies successive, at least partial (if not complete) inclusion of lower levels
into higher ones’ (Kontopoulos, 1993: 52). Nested structures entail either full or
partial inclusion of lower levels into higher ones. Each of these two subtypes, fully
and partially nested relations, comprises at least three levels. Fully nested relationship
structures, in which lower levels are completely nested in higher ones, are
characterised by many-to-one or several-to-one relationships among levels and are
called hierarchies. Partially nested orderings, on the contrary, are characterised by
many-to-many or several-to-several relationships within inter-level structures and are
called heterarchies (Kontopoulos, 1993: 54-55). Thus, both hierarchy and heterarchy
are subtypes of nested relations and differ from each other in the degree of nesting.
The latter is higher in hierarchical structures and lower in heterarchies.
According to Kontopoulos, hierarchies are ‘linear orderings with a straightforward
relation of full inclusion applying to all levels’ (Kontopoulos, 1993: 54). This means
that communication in hierarchies takes place across vertical lines. Heterarchies, on
the contrary, are referred to as ‘tangled composite structures’, in which the aspect of
linearity is missing. In heterarchies there is no single governing level among the levels
they are composed of. Instead, various levels can exercise influence on each other in
some respect. Heterarchies are characterised by ‘multiple access, multiple linkages
and multiple determination’ (Kontopoulos, 1993: 55). Thus, what distinguishes a
heterarchy from a hierarchy is the capacity of lower level entities to communicate
with multiple higher level centres as well as with units at the same organisational
level. Hierarchy, on the contrary, is structured around vertical chains of command
from above.
Further Kontopoulos distinguishes between two subtypes of hierarchical structures,
the so-called s-type (Simon hierarchy in honour of Herbert Simon) or modular
hierarchy and the so-called p-type (Pattee hierarchy in honour of Howard H. Pattee)
or control hierarchy.15 Control hierarchy is a top-down structure in which upper levels
14 As for non-nested relationship structures, according to Kontopoulos these comprise two subtypes, collections and collectives. For an extensive analysis of these two subtypes see Kontopoulos, 1993: 52-53. 15 For Herbert Simon’s contribution to the development of hierarchy as a concept see above. As for Howard H. Pattee, he approached the problem of control hierarchies from the point of view of a
42
43
have a high degree of authority over the lower ones. In this authoritative relation
higher levels determine and control lower levels to a considerable extent. Modular
hierarchy is a bottom-up structure. Kontopoulos calls it a ‘weaker type of hierarchy’.
Modular hierarchy is based on the idea of full or nearly full inclusion i.e. nesting of
lower levels in higher ones. In this sense it differs from heterarchy, which is
characterised by a partial nesting of levels (Kontopoulos, 1993: 54-55).
2.1.2.2 What is interdependence?
The simplest definition of interdependence characterises the latter as mutual
dependence (Keohane and Nye, 1989: 8). Dependence in this context is defined as a
state of being determined or significantly affected by external forces. Already at this
stage a parallel can be drawn between hierarchy and interdependence in so far as the
definitions of both concepts are based on the notion of dependence. Hierarchy, as
mentioned above, is a structure of unilateral dependence. Interdependence is in the
first place characterised by mutual dependence. However, interdependence is not
always an evenly balanced mutual dependence. Interdependent structures may vary
from highly symmetrical mutual dependence, which is close to equality of various
entities, to highly asymmetrical dependence, which, if structured across vertical lines,
may even come close to hierarchy.
In international politics, interdependence refers to situations characterised by
reciprocal effects among countries or among actors in different countries (Keohane
and Nye, 1989: 8). In organisation sociology, interdependence has been characterised
as a situation under terms of which two or more organisations require each other and
are dependent each upon the other (Chrisholm, 1989: 42). Here again the dependence
aspect is emphasised. However, in contrast to hierarchy, interdependence is
characterised by a higher degree of symmetry as far as dependence among entities is
concerned and implies no subordinate status for any of the entities on the others
within the structure (ibid.).
physicist. According to Pattee, ‘in a control hierarchy the upper level exerts a specific, dynamic constraint on the details of the motion at lower level, so that the fast dynamics of the lower level can
43
44
Chrisholm, who analyses interdependence from sociological and social psychological
perspectives, distinguishes between three types of interdependence according to the
origin: voluntary, natural and artificial. Voluntary interdependence is established
when organisations voluntarily enter into arrangements to realise mutual benefits. In
such situations one party seeks to have another perform certain services on a
contractual basis (Chrisholm, 1989: 58-59). According to Chrisholm, ‘natural
interdependence occurs when a variety of forces beyond the control of the
organisations immediately involved come together to cause them to become
connected’. Artificial interdependence is established as a result of ‘deliberate efforts
of an outside party to link two or more organisations for some purposes of its own’
(Chrisholm, 1989: 58). The last two types have been summarised by Zafonte and
Sabatier as imposed interdependences (Zafonte and Sabatier, 1998: 481), as they are
neither originated on the voluntary basis nor established by the parties immediately
involved in interdependent relationships.
Another interesting differentiated approach to interdependence stems from
organisation sociology. In contrast to Chrisholm, for James D. Thompson not the
origin of interdependence but its internal structure is the point of reference for a
differentiation between three types of interdependence. According to him, there are
pooled, sequential and reciprocal types of interdependence. In the case of pooled
interdependence each part gives a contribution to the whole and is supported by the
whole. The entire structure is jeopardised unless each performs adequately. This
means that the degree of interdependence among single entities is relatively high.
Sequential interdependence has a serial form. Direct interdependence of units on each
other has a specific order, whereby the output produced by one entity is the input for
the next. Under the conditions of reciprocal interdependence, outputs of each become
inputs for the others, but not in a serial form. Instead, each involved unit is penetrated
by the other (Thompson, 1967: 54-55).
Thompson emphasises that sequential interdependence contains elements of pooled
interdependence, whereas reciprocal interdependence includes elements of both
not simply be averaged out’ (Pattee, 1973: 77). Pattee emphasises that one of the central results of hierarchical organisation is greater functional simplicity (Pattee, 1973: 73).
44
45
pooled and sequential interdependence (Thompson, 1967: 55). This means that the
three types of interdependence are not mutually exclusive, but highly inter-linked.
Additionally, Thompson relates each type of interdependence to an appropriate
method of co-ordination. Pooled interdependence leads to co-ordination by
standardisation. This involves the establishment of routines and rules, which constrain
the actions of each unit. Since co-ordination takes place according to previously
established routines, it can only be effective under terms of stable and repetitive
situations. Sequential interdependence is co-ordinated by plan, where actions of
interdependent units are governed by previously established schedules. However, in
contrast to co-ordination by standardisation, co-ordination by plan does not require
the same degree of high stability and is suitable for more dynamic situations.
Reciprocal interdependence results in co-ordination by mutual adjustments where
information exchange takes place during the process of co-ordination. March and
Simon refer to this type as co-ordination by feedback. According to these authors, ‘the
more stable and predictable the situation, the greater the reliance on co-ordination by
plan; the more variable and unpredictable the situation, the greater the reliance on co-
ordination by feedback’ (March and Simon, 1958: 160).
Charles E. Lindblom defines interdependence from the point of view of pluralist
political theory and decision theory. According to him, interdependence among a set
of decision makers is a situation in which ‘each decision maker is in such a relation to
each other decision maker that, unless he deliberately avoids doing so (which may or
may not be possible), he interferes with or contributes to the goal achievement of each
other decision maker’. In this context the impact of one decision maker on the other is
either direct or it takes place via a chain of effects (Lindblom, 1965: 21-22).
2.1.2.3 Working definitions and a typology
Based on various conceptualisations of hierarchy and interdependence outlined in the
review of theoretical literature made above, we can formulate the following working
definitions. Hierarchy is a vertically organised multi-level structure of unilateral
dependence of lower levels on upper ones, which is characterised by a highly
45
46
asymmetrical distribution of resources and in which the levels are linked with each
other through control and supervision from above. Interdependence is a structure of
vertical or horizontal mutual dependence, where the entities are dependent on the
exchange of symmetrically or asymmetrically distributed resources in order to achieve
final goals.
There are a number of characteristic features, which distinguish hierarchy from
interdependence. First, whereas hierarchy can be described as a structure of unilateral
dependence, interdependence - as the word indicates - is a structure of mutual
dependence. Thus the common element uniting both concepts is dependence. Hereby
the type of dependence, around which hierarchical and interdependent structures are
organised, is different.
Second, in hierarchical structures communication among levels takes place
exclusively across unilateral and bilateral lines that may have either top-down or
bottom up direction. The rules of unilateral and bilateral interaction are set by the
levels at the top of the structure. Lower levels have limited possibilities of
independent initiative and creativity. In interdependent structures, on the contrary,
unilateral and bilateral channels of communication coexist with multilateral lines of
communication among various entities. In this sense, in terms of communication,
interdependence is characterised by a higher degree of flexibility and variety than
hierarchy.
Third, since hierarchy is a pyramidal structure, levels in a hierarchical relationship
interact with each other across predominantly vertical lines. Interdependent
relationships, on the contrary, are not limited to pyramidal forms and may be found in
vertically as well as horizontally organised structures. This means that inter-level
linkages may be developed across vertical and/or horizontal axis. Hence, when
interdependent relationships are horizontally structured and the vertical dimension is
weak or missing, single elements of interdependence should be called entities or units
but not levels.
Fourth, whereas in a top-down structure of hierarchy co-ordination is exercised
exclusively from above, interdependent structures are more flexible in this respect and
46
47
open the way for various types of co-ordination. This means that in an interdependent
relationship structure the process of co-ordination is determined by various entities,
which may participate in this process to different degrees.
Fifth, in hierarchies the distribution of powers and competences is exclusively
asymmetrical in such a way that higher levels posses far more resources than the
lower ones. This leads to unilateral dependence of lower levels on higher levels. In the
structure of interdependent relationships, which are in the first place characterised by
mutual dependence, the distribution of resources has a less asymmetrical character
compared to hierarchy. This precludes the establishment of unilateral dependence
among levels. However, in principle, powers and competences in interdependent
structures may be dispersed asymmetrically or symmetrically among the entities
involved.
Sixth, hierarchies are relatively rigid, because they function according to strictly
predetermined rules. Interdependent relationships, on the contrary, are characterised
by a certain degree of flexibility, whereby the latter may vary and depends on the
distribution of resources among the entities. Compared to hierarchies, interdependent
structures are more easily adaptable to changes inside or outside the structure.
Seventh, hierarchies are structured around various levels, whereby lower levels are
nested in higher ones. Interdependences are organised around various entities that are
not nested in each other but linked with each other via horizontal or vertical lines. The
following table summarises the characteristic features of hierarchy and
interdependence from a comparative perspective.
Both terms, as characterised in the definitions and the table, are ideal types that can
not be found as such in reality. However, we can describe real situations and
structures by applying the two ideal types to them. This will help us to understand to
what extent reality comes close to these ideal types and/or contains certain distinctive
elements characterising them. It has to be stressed that the ideal types of hierarchy and
interdependence as outlined above should not be understood and conceptualised as
opposites in the sense that the presence of one of them implies the absence of the
other. Hierarchy and interdependence may coexist to a certain degree. This happens
47
48
because hierarchy may contain certain elements characteristic for interdependence
and vice versa. The complex and overlapping nature of hierarchical and
interdependent structures sometimes does not allow us to undertake a precise
differentiation between these two ideal types in theoretical terms. Also in political
reality many kinds of organisations, federal structures included, represent mixtures of
features to be found in ideal types of both hierarchy and interdependence.
Table 1. Hierarchy and interdependence compared
Hierarchy InterdependenceType of dependence Unilateral dependence Mutual dependenceChannels of communication
Exclusively unilateral and bilateral channels of communication among levels
Coexistence of unilateral, bilateral and multilateral channels of communication among levels
Direction of lines of interaction
Interaction among levels across vertical lines
Interaction among levels across vertical as well as horizontal lines
Type of co-ordination Co-ordination from above Various types of co-ordination possible
Distribution of powers and competences
Highly asymmetrical distribution of powers and competences in favour of the upper level
Different degrees of asymmetry and symmetry with regard to division of powers and competences
Degree of flexibility Once established, relatively static and rigid
Flexible, may change through time
Types of structure and linkages
Structured around various levels whereby lower levels are nested in the higher ones
Structured around various entities, which are not nested in each other but linked with each other
Source: the author
Because it is often difficult to clearly distinguish hierarchical and interdependent
relationship structures from each other, it appears more appropriate to talk about
degrees of hierarchy and interdependence rather than to conceptualise them in
absolute dimensions. For reasons of clarity and simplification we subdivide each of
our theoretical concepts in two types with regard to their degree - high and low. As a
result we have four types of relationship structure: high degree of hierarchy, low
48
49
degree of hierarchy, high degree of interdependence and low degree of
interdependence.
High degree of hierarchy means that hierarchical features in the sense of the ideal type
of hierarchy are strongly present and the degree of asymmetrical, unilateral
dependence of lower levels on the upper ones is relatively high. The upper level
exercises supervision and control on the lower one(s). Low degree of hierarchy, on
the contrary, is characterised in the first place by unilateral dependence, and control
and supervision from above. But there is at the same time a certain degree of mutual
control and co-decision. Without the latter the entire structure would not function and
achieve its aims, because the upper level(s) would not be able to make decisions
alone. In such structures, authorities at the top maintain a superior position but
compared to the high degree of hierarchy unilateral lines of dependence are weak and
coexist with structures of mutual dependence. This means that the upper level is not
entirely independent when making decisions and depends up to a point on co-
operation and co-ordination with other levels.
High degree of interdependence means that entities are mutually dependent on each
other and this mutual dependence has a largely symmetrical character. In this sense, in
some instances high degree of interdependence may even come close to equality.
Within such structures, relationships among entities are based on mechanisms of
mutual control and decisions can be taken exclusively together by the participating
entities. Moreover, co-decision mechanisms are often based on consensus rules. As
for low degree of interdependence, it is in the first place characterised by mutual lines
of dependence but there is a certain degree of supervision and control exercised from
above as well. In this sense, mutual dependence has asymmetrical character as the
upper level has more mechanisms than the lower ones to exercise supervision and
control on the other level. However, in this type of relationship structure, the upper
level, which has a superior position, is constrained by certain mechanisms that give
other levels the possibility to balance out its dominant position.
According to such a differentiation, high degree of hierarchy and high degree of
interdependence differ from each other to a large extent. These two ideal types come
very close to the ideal types of hierarchy and interdependence as defined above. Low
49
50
degree of hierarchy and low degree of interdependence, on the contrary, come close to
each other. For these two ideal types it is easier to coexist than for the ideal types of
high degree of hierarchy and high degree of interdependence. The advantage of this
differentiated concept consisting of four ideal types is its higher degree of precision
compared to the differentiation between the two ideal types only – hierarchy and
interdependence. To examine situations and structures of political reality by applying
these four ideal types to them will make it possible to give more precise descriptions
of reality.
2.1.3 Hierarchy and interdependence in federal theory and multi-level
governance literature
Theoretical literature on federalism as well as multi-level governance literature
analyse relationship structures consisting of several levels, where power and authority
are shared along vertical and horizontal lines. In spite of this similarity in general
terms, federal theory and multi-level governance literature differ from each other to a
considerable extent. In the following paragraphs we will highlight the major
differences between them.
First, whereas the origins of federal theory date back to the 17th century,16 multi-level
governance is a relatively young concept that emerged in the 1980s. The word
‘federalism’ can be traced back to foedus, which in the Latin language means union.
The word foedus was first utilised by Johannes Althusius in the early 17th century.
Althusius’ work Politica Methodice Digesta is considered to be the first writing on
explicitly federal theory. The modern meaning of the term ‘federalism’ was originated
during the American Revolution and is highlighted in The Federalist Paper, which is
a collection of essays by Hamilton, Jay, Madison and Earle published in 1787. In
French, fédéralisme was first used by Montesquieu in the 18th century, although the
word ‘federation’ was known in France since the 14th century (Watts, 1999a: 2;
Khubua, 2000: 14-15).
16 For an extensive analysis of federalism, the history of federal systems and federal ideas, see among others Elazar, 1987: 115-153 and King, 1982: 17-68. For a concise overview of various types of federal
50
51
It has to be noted that the first federal type arrangements were originated much earlier
than the first origins of federal theory. In the literature on the subject the so-called
leagues formed by ancient Hellenic city-states on the territory of Greece are often
compared with federal polities and considered as the forerunners of modern federal
arrangements. Within these structures, created on the basis of treaties for military and
commercial purposes, the city-states retained a considerable degree of autonomy and
the right to secede from the leagues (Davis, 1978: 11-35; Goudappel, 1997: 123-133;
Elazar, 1987: 120-121). Daniel J. Elazar goes further than this and even considers the
Israelite tribal federation, that according to the Bible existed more than 3000 years
ago, as the first federal experiment in the history of mankind (Elazar, 1987: 117-120).
The leagues of medieval self-governing city-states on the territory of northern Italy
(Lombard League), and northern Germany, the Netherlands and Denmark (Hanseatic
League), as well as the feudal Holy Roman Empire, that existed roughly on the
territory of modern Germany from the late Middle Ages till 1806 are also considered
as structures with federal features (Watts, 1999a: 2; Elazar, 1987: 118, 123).
There are two notable examples of entities with federal characteristics that date back
to the Middle Ages. The Swiss Confederation existed from 1291 till 1848 and was
then transformed into a federation. The United Provinces of the Netherlands was
originated in the second half of the 16th century (in 1567) as a result of a revolt against
the Spanish rule on these territories and was destroyed later by Napoleon. These and
other systems with certain federal features throughout the history of political
organisation until the origination of the United States of America in the 18th century
should be considered as being closer to confederations rather than federations in the
modern understanding of these terms.17 The first modern federation is the United
structures and a brief description of political systems of a number of federations see Watts, 1999a: 1-34. 17 Federations and confederations are both constitutional options that establish very different state structures. Both are characterised by multi-tier forms of governance in which powers and competences are distributed among at least two levels of government. Whereas a federation is a state that is recognised by international community as sovereign and independent, a confederation is a union of sovereign and independent states. A confederation is a loose structure created for limited purposes and often for a restricted duration. In a federation, federated entities may possess certain sovereign rights as well as features of statehood such as a constitution, a flag, and different tiers of government, but even under these conditions they are not independent entities on the international level. The state-quality of a federation is expressed in and symbolised by a constitution, from which each level of governance derives its prerogatives. In this sense, in a federation, no level of authority is ‘constitutionally subordinate’ to the other (Watts, 1999a: 7). In a confederation, an international treaty regulates equality between the constituent states. Thus, confederation is a union of sovereign states,
51
52
States of America established by its constitution in 1789. Successive federations were
established in Switzerland in 1848, Canada in 1867 and Australia in 1901.
As for multi-level governance literature, it emerged as an attempt to describe and
explain the European Union’s cohesion policy after the introduction of the EU
structural funds in the second half of the 1980s. Later on it was also utilised to apply a
certain governance model to political, economic and social processes, and institutional
structures of the European Union in general. According to the multi-level governance
model, powers and competences, instead of being monopolised by state authorities,
are shared vertically by actors at European, national, regional and municipal levels as
well as horizontally by public and private entities. Hereby, various levels and entities
are interconnected with one another rather than nested vertically one within the other.
The consequence of such an authority structure for regional entities is that they
operate both within national and supranational arenas. Hereby the national level is not
or only to a limited extent performing the function of a gatekeeper between domestic
and European actors. Such a view of governance rejects a clear division between
domestic and international politics (see for example Hooghe, 1996; Marks, Hooghe
and Blank, 1996; Rhodes, 1996; Sand, 1998; Schobben, 2000).
Being invented to analyse a particular political reality, the concept of multi-level
governance became broadly utilised to study processes in structures composed of
various interconnected levels. Apart from a considerable number of theoretical studies
and rather general research done on multi-level structures, scholars have addressed the
question of governance from various perspectives and applied the concept to different
policy fields mainly with the aim to detect the degree of multi-level governance in
these fields. However, it should also be noted that in the majority of cases the
application of the concept is geographically restricted to the European context. Those
limited number of studies that analyse multi-level governance in other geographic
areas choose North America as the scope of analyses and compare European and
which share limited spheres of competences. The sovereignty of states that form part of a confederation extends over their right to unilateral session from the confederation, a prerogative not existing in federal constitutions. The difference between federations and confederations is well reflected in the German terms developed in the nineteenth century. Bundesstaat (federation) in German means a union-state, whereas Staatenbund (confederation) signifies a union of states.
52
53
American patterns of multi-level governance with each other (see for example Kaiser,
2002; Blatter, 2001a).
Second, federal theory analyses federalism as a normative category. Federalism is an
ideological perspective. It represents one of the varieties of pluralism (King, 1982:
19)18 as it generally advocates shared rule and decentralisation of power and authority
along vertical as well as horizontal lines. Representing a political philosophy and a
doctrine of diversity-in-unity, federalism ‘constitutes a variable response to opposed
demands for the dispersal and centralisation of power (…) on a specifically territorial
basis’ (King, 1982: 21). Federalism is characterised by flexibility in the sense that it
has various dimensions and can find expression in different types of state structure,
such as federations, confederations, federacies, associated states or condominiums.
Furthermore, among the today existing more than twenty federations none is identical
with the other. Each of them is only a possible way of concretising the federal
principle by means of a federal constitution, and is influenced by particular historical,
political, ethnic and social conditions.
Federation, in contrast to federalism, is an institutional arrangement and a type of
state structure. It is a form of political organisation, which embodies and is based on
the federal principle. As Preston King puts it, ‘federalism is some one or several
varieties of political philosophy or ideology’ and federation is ‘some type of political
institution’. Whereas there may be federalism without federation, there can exist no
federation without some link with federal principles (King, 1982: 75-76). Taking
these considerations into account, we have to emphasise that we can draw a clear
distinction between federalism as a normative category on the one hand, and federal
political systems - including federations - and federal practice on the other hand.
Multi-level governance, on the contrary, is not an ideology but rather a concept, a
tool-kit of analysis, the emergence of which found its source in concrete changes in
the decision making structure of the European Union. It is not so easy to draw a
distinction between the normative and ideological considerations and the practice of
18 Preston King differentiates between three federal ideologies: centralist federalism, decentralist federalism and federalist balance. For an exhaustive overview of basic distinctive features of these streams of thought and the authors subscribing to them see King, 1982: 24-68.
53
54
multi-level governance, simply because multi-level governance literature describes
political practice of inter-level processes with the help of certain terms and concepts.
Third, in federal theory, the primary interest is directed towards the analysis of
relationships between two levels, federal and federated. The latter is also referred to
as regional level. The term ‘level’ is often used synonymously with ‘authority’ or
‘order’. Policy formulation in a federal structure is viewed in the first place as a result
of the interaction process conducted by the two levels although there is normally a
third, municipal, level below the regional one. Multi-level governance literature, on
the contrary, although in the first place analysing relationships between the levels,
hardly ever mentions such terms as ‘federalism’, ‘federation’ or ‘federal’. As for the
number of levels, in multi-level governance structures it is higher than in any federal
system as there is a supranational level that stands above the central government.
Having outlined the major differences between federal theory and multi-level
governance literature, we will now turn to a brief analysis of similarities between
them. As mentioned at the very beginning of this section, both federalism and multi-
level governance analyse the same phenomenon, namely relationship structures
among levels, in which power and authority are distributed across vertical as well as
horizontal lines. In such systems the levels are linked in different ways and interact
with each other. These systems are structured around interactions among and within
the levels that can take place along co-operative, co-ordinated, competitive or
hierarchical lines. In fact, multi-level governance literature does not refer to a
qualitatively new phenomenon. It is true that the emergence of multi-level
relationships among levels of authority is a qualitatively new phenomenon in the
process of European integration, but it has also to be emphasised that relationships
based on similar and identical principles have existed since centuries in federal
polities. In this sense, relationship structures analysed by multi-level governance
authors are characterised to a considerable extent by features also to be found in
various federal arrangements.
Taking these considerations into account we can conclude that federal and multi-level
governance systems have a number of features in common. Both federal and multi-
level systems are constituted of several levels the number of units increasing at lower
54
55
levels. Both can be characterised as relationship structures created with the purpose to
tackle interactive processes taking place between entities on different levels. We have
to emphasise here that the process dimension is quite important in this context
because neither federal nor multi-level organisms are static systems. They are
dynamic structures subject to changes that occur through time. Consequently, each
analysis of such systems, unless undertaken from a historical perspective, refers to the
status quo.
In spite of these similarities only few analysts of European multi-level governance
structures explicitly refer to federal features of these structures. Rob Schobben, for
example, describes the European Union as a ‘modest federation’ (Schobben, 2000:
59). Joachim Blatter emphasises that even if the concept of multi-level governance
takes private sector and other non-governmental actors into account and thus differs
from federalism, it reveals ‘the legacy of federalist thinking in the assumption that
territorially defined units are the central units of interest aggregation and agency’
(Blatter, 2001a: 177). According to Blatter, the concept of multi-level governance is
still inclined to and influenced by the notion of territoriality (Blatter, 2001a: 179).
According to James A. Caporaso, on the contrary, the concept of multi-level
governance, which implies interconnectedness rather than nesting, differs from
traditional federal concepts. It focuses in the first place on networks of interaction
among various levels above and below the nation state including public and private
actors. For this reason, in contrast to the concept of federation, multi-level governance
is ‘more sociology than constitutional principle’ (Caporaso, 1996: 47).
We have seen that interactions among the entities in multi-layered structures,
including federations, take place along horizontal as well as vertical axes as power
and resources are distributed between and within the levels. In such relationship
structures there are different methods to link the levels with each other. Hierarchy and
interdependence are two essential features of multi-level structures in general. In what
follows, we will make an attempt to analyse two things. On the one hand we will
create a link between theoretical literature on federalism and multi-level governance
literature and on the other hand we will examine to what extent scholars of federalism
55
56
and of multi-level governance refer to hierarchy and interdependence as phenomena
characteristic for the systems they analyse.
2.1.3.1 Federal theory and multi-level governance literature meet
hierarchy
In the theoretical literature on federalism controversial statements can be found
regarding hierarchy. On the one hand, there are federal theorists who deny the
existence of hierarchical linkages between the levels in federal systems. For example,
Morton Grodzins draws a parallel between federalism and a marble cake describing
the former as ‘not accurately symbolized by a neat layer cake of three distinct and
separate planes’. According to Grodzins, whenever you slice through the marble cake,
‘you reveal an inseparable mixture of differently colored ingredients. There is no
horizontal stratification. Vertical and diagonal lines almost obliterate the horizontal
ones, and in some places there are unexpected whirls and an imperceptible merging of
colors, so that it is difficult to tell where one ends and the other begins’ (Grodzins,
1970: 3-4).
Daniel Elazar defends a similar position. He distinguishes between three models of
the origin and development of a polity – hierarchic, organic and covenantal – whereby
the first two lead to unitary states and the third leads to federal polities. Thus, Elazar
explicitly stresses the contrast between hierarchy and federal principle and describes
the latter as being originated in the deliberate coming together of equals to establish
an institutional framework in which ‘all can function on an equal basis usually
defined by a pact’ (Elazar, 1997: 239).
According to Elazar, on the one hand, there are federal polities, in which power is
distributed among multiple centres none of them being higher or lower in importance.
On the other hand, there are organisational pyramids symbolising hierarchical
structures, in which the top level is the most important authority, the place where
decisions are made concerning which level does what. These different levels are
linked with each other through a chain of command. Elazar even labels hierarchy as a
‘military model par excellence’ (Elazar, 1997: 238). The third model analysed by
56
57
Elazar is a centre-periphery model, which is oligarchic in character as power is in the
hands of a number of authorities that together constitute the centre. The decisions in
the centre may or may not include the representation from and participation of the
peripheries. The non-hierarchical character of federalism is also implied in the famous
definition of Wheare, according to whom the federal principle means ‘the method of
dividing powers so that the general and regional governments are each, within a
sphere, co-ordinate and independent’ (Wheare, 1951: 11).
Preston King emphasises that the most distinguishing feature of federations from
other types of state structure is the entrenchment of regional entities in such a way
that they are represented at and form a part of the federal centre. King develops four
criteria for the entrenchment of levels that is characteristic for federations,19 and calls
such ‘entrenched’ systems polyarchic. Defining polyarchy as the rule of several in one
state, King understands polyarchic systems as being opposed on the one hand to
monarchic state structures, and on the other hand to acephalous20 systems. According
to King, both federal and confederal structures are polyarchic. Hereby, whereas
federal polities represent polyarchic states with predominantly majoritarian rules of
decision making, confederal entities are polyarchies based on the principle of
unanimity (King, 1982: 142-143).
A second group of scholars stresses the hierarchical character of federalism and is
represented, for example, by a French scholar Georges Scelle. Scelle characterises
federalism, in opposition to anarchy, as hierarchy: ‘Federalism is (…) the contrary of
anarchy because it is hierarchy: hierarchy of norms, hierarchy of institutions, of
governments, and of administrations’ (Scelle, 1959: 14). Joe Weiler’s definition of
hierarchy goes along similar lines and emphasises that constitutions of federal states
create a vertical hierarchy of a triple nature. This implies the existence of a hierarchy
of norms, which is rooted in a vertical hierarchy of normative authority and this in
turn is situated in a hierarchy of real power (Weiler, 2000: 2 (unpublished
manuscript), cited from Hooghe and Marks, 2001b: 13). Thus, hierarchy can be
19 These four criteria are (a) territorial basis of representation, (b) at least two tiers of territorial representation, (c) incorporation of regional entities into decision procedures of the centre, and (d) that the basis of such representation of regional units at the centre can not be altered easily, i.e. by means of majoritarian procedures otherwise used during decision making processes (King, 1982: 143). 20 Acephalous means without a head.
57
58
identified with regard to three essential elements of a federal system: legal norms,
normative authority and real power. This means that hierarchy can be detected in the
legal and constitutional, i.e. formal sphere as well as in terms of what is called by
Weiler real power, i.e. extra constitutional, contextually defined sphere.
Authors describing and analysing multi-level governance structures can also be
divided in two groups based on their statements about hierarchical features of these
structures. The first group of scholars does not view hierarchy as a characteristic
feature of multi-level governance. For example, students of multi-level structures such
as Liesbet Hooghe and Inger Joanne Sand rather tend to speak of eroding hierarchies
and growing interdependences between levels of authority, of relative autonomies,
and co-operative and co-ordinated processes that are gradually replacing hierarchies.
They argue that institutions in the European Union do not have ‘any more or less clear
hierarchical structure’ (Sand, 1998: 283) and that the hierarchical lines consisting only
of vertical channels of communication are eroded (Hooghe, 1995: 178; Hooghe, 1996:
15). John Loughlin states that the EU governance system is subject to a shift from
hierarchical, territorial modes of government to a non-hierarchical, functionally based
system of governance (Loughlin, 2000: 10-33).
Guy Peters and John Pierre also deny the existence of hierarchical structures within
multi-level frameworks and stress the fact that the process of multi-level governance
is not controlled from above as it happens in hierarchical systems. Peters and Pierre
introduce a new term, stratarchy. It signifies an organisational model where each level
of the organisation operates to a large extent independently of other organisational
levels. According to this definition, in stratarchical structures levels are maintained
but any type of unilateral dependence among them typical for hierarchy is largely
absent. Instead, the levels are related to each other in such way that they remain
independent from each other. This definition reminds us of Wheare’s definition of
federalism according to which the entities in federal systems are co-ordinate and
independent (see above Wheare, 1951: 11). According to Peters and Pierre it is this
new type of relationship that has replaced hierarchy in the multi-level context (Peters
and Pierre, 2001: unpublished manuscript).
58
59
Another interesting contribution to this research topic belongs to Bob Jessop who
offers two concepts of governance. The so-called broad concept of governance refers
to all modes of co-ordination in the framework of complex reciprocal interdependence
including the anarchy of the market, the hierarchy of imperative co-ordination and the
heterarchy of self-organising networks. According to the narrow concept, governance
is reduced primarily to the heterarchy of self-organisation. It is characterised by the
absence of a neatly nested hierarchy of powers and is aimed at solving common
functional problems. Thus, Jessop gives governance a new name and describes it as a
heterarchy of informal, self-organising networks (Jessop, 2001: unpublished
manuscript).
To this group of authors who deny the hierarchical character of multi-level
governance belongs also James N. Rosenau. He stresses the fact that, in abstract
terms, the very notion of multiple levels suggests governmental hierarchies with
various levels being vertically structured in layers of authority. Thus, the concept of
multi-level governance connotes hierarchy. However, according to Rosenau, the
situation is different in practice as it is characterised by ‘the shifting balance between
hierarchical and network forms of governance, between vertical and horizontal flows
of authority’ (Rosenau, 2001: unpublished manuscript). Further Rosenau emphasises
that the establishment of networks has contributed to the desegregation of authority
and the formation of steering mechanisms based on horizontal rather than on
hierarchical principles (ibid.). According to Rosenau, hierarchy is not a necessary
prerequisite to governance in general.21 Moreover, ‘the practices and institutions of
governance can and do evolve in such a way as to be minimally dependent on
hierarchical, command-based arrangements’ (Rosenau, 1997: 146).
A second group of multi-level governance scholars also stresses the growing
importance of interdependence, co-operation and co-ordination among the levels.
However, it emphasises the coexistence of various types of relationship structures,
hierarchy being only one of them. For example, Benz and Eberlein write about a
balanced mixture of different modes of governance in the European multi-level
21 At this stage Rosenau emphasises that governance includes the activities of governments but also of any actors that have mechanisms at their disposal to make demands, frame goals, pursue policies or
59
60
framework and refer in this context to co-operative networks, competition and
hierarchy (Benz and Eberlein, 1999: 343). According to these authors, the distribution
of powers along hierarchical lines even counteracts the danger of malfunction
inherent in co-operation and negotiation among equals.
Fritz W. Scharpf refers to networks, which often exist in the shadow of market,
majority rule or hierarchical authority (Scharpf, 1993: 9). According to Scharpf,
‘hierarchies and networks are inextricably intertwined – (that) hierarchical
organizations are embedded in wider networks while network-like relationships are
emerging within as well as across the boundaries of hierarchical structures’ (Scharpf,
1993: 159).
To summarise, the scholarly interest and attention dedicated to the concept of
hierarchy by federal theorists and authors analysing multi-level governance structures
has not led to systematic research on hierarchical structures. Hierarchy has so far been
a subject of reference but not a topic of primary analysis. Although hierarchy as a
phenomenon has not been altogether neglected by scholars of federalism and multi-
level governance, both bodies of literature refer to it without explicitly defining and
closely explaining the nature of hierarchy. Hereby, in the majority of cases the
reference to hierarchy as a mode of interaction and a relationship structure has been
made in rather abstract terms. It also has to be emphasised that scholars of federalism
and multi-level governance denying the existence of hierarchy in the conventional
meaning of the term outnumber those who regard hierarchy as at least one of the
possible modes of interaction in federal and multi-level structures.
2.1.3.2 Interdependence in federal theory and multi-level governance
literature
In the review of theoretical literature made above we have seen that as far as the
concept of hierarchy is concerned, scholarly dissension exists on whether and to what
extent hierarchical structures are identifiable in federal and multi-level polities. Some
issue directives. Thus, governance encompasses governmental as well as non-governmental actors at various levels (Rosenau, 1997: 145).
60
61
authors deny whereas others defend the existence of hierarchy in legal frameworks
and/or in political practice of federal and multi-level systems.
Contrary to hierarchy, interdependence has been regarded by scholars as omnipresent
in federal and, even more so, in multi-level governance structures. Political processes
in such structures have been described as conducted among and co-ordinated by
interdependent actors. It is indeed notable that normally the functioning of federal and
multi-level arrangements can best be explained by the existence of interdependent
relationships among the constituent units of these arrangements. Moreover,
interdependence has frequently been identified as a reason of primary importance for
the origination of these structures. The present section will highlight to what extent
scholars of federalism and multi-level governance regard interdependent relationships
as essential elements to the systems they analyse.
Various types of observations regarding interdependence may be identified in federal
theory. Since most scholars of federalism in one way or the other refer to
interdependence while analysing federal structures, we will divide their statements
regarding interdependent character of federal systems into implicit and explicit ones.
As far as the first group is concerned, interdependence is not viewed here as one of
the necessary conditions for the existence of federal systems. Moreover, there are a
number of definitions of federalism (see for example Frenkel, 1986; Friedrich, 1964;
Livingston, 1952), which do not refer to interdependent character of federal structures
or interdependent relationships among the levels at all. However, it has to be noted
here that the existence of interdependent relationships is not explicitly denied but
rather implied in the works by authors mentioned above. For example, Friedrich
defines federalism as a process of adopting joint policies and making joint decisions
on joint problems (Friedrich, 1964: 126-127). This definition implies the existence of
interdependence in as far as normally joint action becomes necessary when parties, in
our case the levels, are interdependent. According to Frenkel, federal decision making
systems are characterised by territorially defined groups, which avail of relatively
high autonomy (Frenkel, 1986: 55). If we take into account that interdependence
means mutual dependence and normally takes source in the relative autonomy of
participating entities, we can conclude that also Frenkel’s definition of federalism, to
a certain degree, implies the existence of interdependent relationships among
61
62
territorial units. Entities with a relatively high degree of autonomy can only achieve
common goals when they interact with each other. The process of such interactions in
its turn leads to the establishment of interdependent structures between the levels.
A second group of authors explicitly stresses interdependence as the most essential
characteristic feature of federal systems. For example, Vile defines federalism as a
‘system of government in which central and regional authorities are linked in a
mutually interdependent political relationship; in this system a balance is maintained
such that neither level of government becomes dominant to the extent that it can
dictate the decisions of the other, but each can influence, bargain with, and persuade
the other’ (Vile, 1961: 199). According to this definition, political interdependence of
levels of government on each other is of primary importance in federal structures. It
prevents single levels from absorbing all effective decision making power and this
way helps to preclude highly asymmetrical relationships among orders. Thus,
interdependence has a key role in federal systems as it keeps the systems in balance
and represents a guarantee for their successful functioning.
Bernier’s perception of federalism goes along similar lines. According to him, ‘in its
practical functioning, federalism is characterised essentially by the political
interdependence of the central and regional authorities’ (Bernier, 1973: 5). However,
interdependence is not identified by Bernier as one the four features, which have to be
present in a political system in order to characterise it as federal. According to
Bernier, the four essential characteristics of a federal system are (a) a division of
powers between the central and regional governments, (b) a certain degree of
independence of central and regional governments, (c) direct action on the people by
the central and regional governments, and (d) some means of preserving the
constitutional division of powers (ibid.).22
Thus, what Vile and Bernier have in common is their focus on political
interdependence of levels on each other. According to these authors, interdependent
relationships are to be found in the political practice of the federal process. Hereby,
22 Having listed the four characteristic features, Bernier explicitly underlines that there is also a number of social, political or economic factors that explain the existence of certain characteristic features in
62
63
Bernier does not refer to interdependence established by legal rules. Contrary to the
four characteristics according to Bernier listed above, political interdependence is not
a condition for but rather a consequence of the federal process. This does not mean, of
course, that it is in any way of minor importance.
Compared to federal theory, interdependence is of a higher relevance for scholars of
multi-level governance and represents the primary focus of the literature on multi-
level processes and structures. The latter is largely concentrated on the description of
interdependence, which leads to co-ordinate and co-operative processes between
levels and to relationship patterns with no dominant players. Peters and Pierre see the
emergence of multi-level governance as a proof of increasing mutual dependence that
characterises institutional exchanges in the contemporary reality (Peters and Pierre,
2001: unpublished manuscript). While analysing the emergence of multi-level polities
and processes Inger Joanne Sand stresses the existence of functional and mutual
interdependence at the institutional level (Sand, 1998: 284).
James Rosenau sees the source of increasing demand for governance in the
proliferation of complex interdependences and the establishment of rule systems in
non-governmental organisations, corporations, professional societies, business
associations, advocacy groups and other types of entities that are not considered as
governments (Rosenau, 2001: unpublished manuscript). According to Bob Jessop,
governance refers to a reflexive self-organisation of independent actors involved in
complex relations of reciprocal interdependence. Jessop emphasises that governance
structures can be differentiated from the ‘invisible hand’ of the uncoordinated market
exchange based on rational pursuit of self-interest by isolated agents as well as from
the ‘iron fist’ of centralised, top-down imperative co-ordination with the aim to
achieve the goals established from above. One of the most essential characteristics of
governance is that it is primarily concerned with managing functional
interdependences rather than with activities taking place within a defined territory
(Jessop, 2001: unpublished manuscript).
federal polities. However, according to Bernier, these factors do not help us to determine the federalcharacter of states (Bernier, 1973: 5).
63
64
To summarise, neither the literature on federalism nor multi-level governance
literature make it possible to draw clear conclusions on whether there exist hierarchy
and interdependence in multi-tier arrangements and if so, to what degree. Moreover,
the scholarly debate with regard to these questions has so far been conducted in rather
abstract terms. However, there is a certain trend in the theoretical literature that
should not be left unmentioned. We have to emphasise that whereas scholars of
federalism either defend or deny the existence of hierarchy and interdependence in
federal structures, statements made by multi-level governance authors are different in
this respect. Although some of them refer to hierarchy as one of the features of multi-
level interactions besides interdependence, the vast majority of scholars subscribe to
the idea that multi-level structures are characterised predominantly by
interdependence of levels on each other, and if at all, by very limited or no hierarchy.
There are no scholars of multi-level governance who deny the existence of
interdependent relationships in structures analysed by them. This means that the
literature on multi-level governance is dominated by the idea that multi-level
structures are in the first place characterised by interdependence among the
constituent levels.
The aim of this dissertation, as outlined in the introduction, is to undertake - from the
point of view of hierarchy and interdependence - a comparative analysis of federal
states embedded in the European multi-level structure and thus to examine the impact
of Europe on federalism. We can talk about the impact of the European Union on
federalism and federal structures if can come to the conclusion that there is a certain
degree of similarity among the federal states that are members of the European Union.
For this purpose we will examine whether the involvement of federal states in multi-
level structures leads to similar outcomes in these states and a comparable influence
on domestic federal relationships. Chapters 4.1 and 4.2 make an attempt to create a
link between the theoretical literature on federal and multi-level principles and the
concretisation of these principles in political reality. Based on the theoretical analysis
made in previous sections we should assume that the involvement of federal states in
broader multi-level frameworks result in the increased interdependence among federal
and federated orders. In other words, we can expect that in practical terms the similar
impact of Europe on federal states would be the establishment and reinforcement of
64
65
interdependent rather than hierarchical relationships among the levels on the domestic
arena.
65
66
67
2.2 Conceptual tools: formalised versus non-formalised
The dichotomy between formal and informal relationship structures is essential to this
study. While analysing relationship patterns between levels in federal states, we will
draw a distinction between formal and informal types of inter-level relations, and
examine these from a comparative perspective. At a first glance the meaning of both
terms – formal and informal - seems to be relatively clear and simple. However, on
examination we discover that these terms have a very broad meaning and, in order to
make them applicable to particular contexts, certain specifications have to be made.
Scholars of governance structures have offered various definitions of ‘formal’ and
‘informal’ trying to concretise these terms. For this purpose they have made attempts
to contextualise and thus link the terms with certain concepts, settings or frameworks.
In what follows we will give a brief overview of various definitions of formal and
informal found in the literature on governance. Hereby it should be noted that some
notions used by governance scholars with regard to formal and informal structures
and relationship patterns have been influenced by organisation theory as well as by
theory of institutions and institutional change.
It is true that the first school of thought - organisation theory - which deals with
sociology of organisations, their structure and the behaviour of actors in
organisations, is not directly linked with our analysis of federalism, foreign relations
and multi-level structures. However, it has to be considered that federal polities as
well as multi-level structures are particular forms of organisation created in the first
place to manage political, social and economic processes. In order to provide a more
detailed and complete overview of various definitions and concepts of ‘formal’ and
‘informal’, we will draw some parallels between the organisation theoretical literature
of the 1960s and 1970s and the literature on governance that emerged later, in the
second half of the 1980s.
As for the second school of thought - the theory of institutions - it is linked with our
analysis of formal and informal relationship patterns in so far as the question whether
interaction structures are formal or not, necessarily involves the question whether they
67
68
are institutionalised and if so to what degree. As scholars of institutional change,
institutional emergence and actor-centred institutionalism have in various ways and
intensities dealt with the question of formal and informal institutions, it would be
inappropriate to neglect their views. Thus, in what follows we will refer to works by
scholars of organisation sociology and institutional theory. We will, however, deal
with their research only in so far as it is directly linked with our study of governance
and federal structures.
2.2.1 Concepts to be found in the literature on governance, organisation
sociology and the theory of institutions
Joachim Blatter offers two different possibilities to concretise the meaning of the
dichotomy formal versus informal. First, Blatter refers to hierarchies as to formal
organisations and uses the word heterarchy to describe informal, intergovernmental
networks. Second, he relates the terms formal and informal to institutional structures
and defines tightly coupled institutions as formal while describing loosely coupled
institutional settings as informal (Blatter, 2001a: 183).23
In the first case, the terms formal and informal are linked to particular theoretical
concepts such as hierarchy, heterarchy and networks. Because hierarchy is understood
and defined as a type of formal organisation, the existence of informal linkages in
hierarchical structures is excluded by definition. In this context Blatter refers to
Herbert Simon’s concept of ‘formal hierarchies’ (Simon, 1962: 477, in Blatter, 2001a:
184), and puts this definition of hierarchy by Simon in contrast to the concept of
network as developed and described in 1991 by Patrick Kenis and Volker Schneider
(Kenis and Schneider, 1991).24 In order to define informal relationship structures, the
23 For the characterisation of these two types of institutions see Table 2, Differences Between Formal (Tightly Coupled) and Informal (Loosely Coupled) Institutions in Blatter, 2001a: 185. 24 Referring to Herbert Simon’s concept of hierarchy (on Simon’s views on hierarchy see section 2.1.2.1), Kenis and Schneider describe ‘network’ as the new paradigm of the architecture of complexity compared to ‘hierarchy’ as the old paradigm of architectural complexity (Kenis and Schneider, 1991: 25). According to Kenis and Schneider, the two essential features that characterise networks are informality and decentralisation. First, the network concept includes formal institutional arrangements as well as informal relationships in the policy process that takes place outside conventional channels such as legislative, executive or administrative institutions. Second, the concept of network advocates a decentralised view of societal organisation and governance in the sense that according to this concept control mechanisms are dispersed among various public and private actors. It should be noted that
68
69
term heterarchy is introduced and utilised synonymously with informal networks. In
contrast to hierarchies, in networks the near decomposability as understood by
Herbert Simon (see section 2.1.2.1) is lacking, which means that horizontal lines to
entities outside the unit are present to a considerable extent and function parallel to
vertical links among the levels of organisation (Blatter, 2001a: 184).
The second conceptualisation of formal and informal used by Blatter places these
terms into a broader framework such as that of institutional structures and
differentiates between two types of institutions according to the degree and quality of
institutional linkages: formal, tightly coupled and informal, loosely coupled
institutions. Thus, according to Blatter, both formal and informal interactions may
take place within certain institutional structures. This approach is similar with Renate
Mayntz’s differentiation between forms of governance on the basis of structural
coupling (in German strukturelle Kopplung). Mayntz distinguishes between markets
characterised by no structural coupling among its elements, hierarchies characterised
by tight coupling and networks that are only loosely coupled (Mayntz, 1993: 44; for
similar considerations see also Jessop, 2001: unpublished manuscript).
The term ‘structural coupling’ is also used by Donald Chrisholm in his differentiation
between formal and informal organisations. According to Chrisholm, whose works
stem from organisation sociology, in informal organisations roles and tasks are
determined not by a single authority, as it is done in formal hierarchies,25 but by the
component units themselves. Participants are determined by the character of the issue
to be negotiated. In this sense, informal organisations are flexible, adaptive, problem-
oriented and created on the basis of need. As Chrisholm outlines, informal
organisations, in contrast to formal hierarchies, are self-organising entities because
they respond to the effects of experience instead of being dependent on the demands
from the side of organisation designers, as it is the case in hierarchical organisations.
these two features of networks come close to major elements characterising the concept of multi-level governance. The growing relevance of network as an explanatory framework for social and political processes is conditioned by a number of changes in society and in the first place by a shift in societal governance from hierarchical control to horizontal co-ordination (Kenis and Schneider, 1991: 34-36). On networks see also Hanf and Scharpf, 1977; Schubert, 1991; Marin and Mayntz, 1991a; Héritier, 1993b; Jansen and Schubert, 1995; Pappi, König and Knoke, 1995). 25 It has to be noted here that Chrisholm uses the term hierarchy as a synonym to organisation and by saying formal hierarchies means formal organisations.
69
70
Whereas formal hierarchies are tightly coupled, informal organisations are more
loosely coupled and flat, i.e. based on predominantly horizontal lines of
communication (Chrisholm, 1989: 11-12).
Approaching the problem of basic forms of social co-ordination from the point of
view of actor-centred institutionalism,26 Mayntz and Scharpf identify four modes of
social co-ordination based on two distinguishing characteristics - the level of
individual autonomy and the capacity for collective action. They also call these modes
‘forms of governance’ and differentiate between unilateral or reciprocal adjustment
(einseitige oder wechselseitige Anpassung), negotiation (Verhandlung), voting
behaviour (Abstimmung) and hierarchical decision making (hierarchische
Entscheidung) (Mayntz and Scharpf, 1995: 61).
In his later work Fritz W. Scharpf also examines four modes of interaction – unilateral
action, negotiated agreement, majority vote and hierarchical direction. According to
Scharpf, these modes of interaction are shaped and influenced by institutional rules
and broader institutional settings, in which they take place. Scharpf names these
institutional settings respectively as ‘anarchic fields and minimal institutions’,
‘networks, regimes and joint-decision systems’, ‘associations, constituences and
representative assemblies’ and ‘hierarchical organizations and the state’. Hereby,
institutional settings function as constraints with regard to the modes of interaction
that can be employed. Scharpf emphasises that whereas hierarchical settings can
support all modes of interaction, self-organising networks can support neither
hierarchical authority nor majority vote (Scharpf, 1997: 46-47, including the table on
page 47).
James Rosenau utilises the terms formal and informal to differentiate between and
define the concepts of government and governance. According to Rosenau, both
governance and government consist of rule systems and steering mechanisms by
means of which authority is exercised on the governed with the aim to achieve desired
goals. However, governments can be thought of as formal structures, as institutions
for addressing diverse issues, whereas governance signifies a collectivity, which
26 Actor-centred institutionalism in policy research departs from the assumption that social phenomena are outcomes of interactions among intentional actors – individual, collective or corporate – and that
70
71
encompasses and employs informal as well as formal steering mechanisms (Rosenau,
2001: unpublished manuscript). Thus, Rosenau is his concept of government and
governance explicitly links formal, governmental structures with institutional settings.
This implies that governance, which is structured around formal as well as informal
mechanisms, takes place also within extra-institutional, informal channels. Rosenau
emphasises that whereas ‘governments generate compliance through formal
prerogatives, (…) the effectiveness of governance rule systems derives from
traditional norms and habits, informal agreements, shared premises, successful
negotiations’ (ibid.). Thus, the differentiation between formal and informal structures
is connected with the differentiation respectively between institutional and non-
institutional structures.
Guy Peters and John Pierre have offered another useful conceptualisation of formal
and informal. They refer to formal as to something that is constitutionally defined.
Informal, on the contrary, signifies post-constitutional or extra-constitutional
processes, which are not limited by formal agreements and rules, and are
characterised by the absence of structural constraints. In contrast to formal structures
and processes, informal ones are not constitutionally but contextually defined (Peters
and Pierre, 2001: unpublished manuscript). Thus, Peters and Pierre link the terms
formal and informal with their determinants, which are respectively constitutions, i.e.
legal rules, and particular extra-constitutional contexts and politics. Further Peter and
Pierre associate multi-level governance with informal extra-constitutional structures.
Victor A. Thompson differentiates between artificial and natural systems of
organisation. Thompson defines artificial system as ‘a consciously designed control
machine’ (Thompson, 1976: 10) and associates it with formal organisations. Such
systems have an externally given goal and some planned means for achieving it.
Natural systems, on the contrary, are developed spontaneously beyond artificial
systems. According to Thompson, ‘the result is an organizationwide natural system
with subsystems of overlapping groups and a broad underline consensus based on
common problems of survival’ (Thompson, 1976: 16). Natural systems are tied to
artificial ones and function in a way as compensatory settings to the latter. This means
the institutional settings within which these interactions take place structure the interactions and shape the outcomes (Scharpf, 1997: 1).
71
72
that natural systems perform the functions not performed by artificial systems and
meet the needs not met by the latter.
In this sense, artificial and natural systems are not opposites but complement each
other in some ways. This differentiation made by Thompson, that dates back to the
1970s and stems from organisation sociology, is important for our analysis of
governance structures for two reasons. First, it puts an emphasis on the motivations of
actors that stand behind the established structure. According to Thompson, while
control in artificial systems is exercised from outside because such systems have an
owner, natural systems are characterised by the ‘internal reference’ meaning that in
contrast to artificial systems, natural systems are not a tool of anyone or anything but
themselves. Second, the differentiation made by Thompson stresses the fact that
artificial and natural systems, associated respectively with formal and informal
organisations, complement rather than oppose each other as informal systems are
sometimes developed to correct the failures of the formal ones (Thompson, 1976: 16-
18).
While analysing co-decision mechanisms and institutional structures in the process of
constitution building in Europe, Farrell and Héritier draw on the works by Jack
Knight and distinguish between formal and informal institutions. The criterion for this
distinction is ‘which actors enforce the rules’. Formal institutions are defined as
written rules enforced by a third party, whereas informal institutions are viewed as
enforced by actors themselves (Farrell and Héritier, 2001: 3). According to Knight,
informal institutions are self-enforcing and the efficiency of informal rules ‘depends
on the extent to which social actors find it in their self-interest to comply with them’
(Knight, 1992: 171). Compliance with formal rules, on the contrary, is guaranteed by
an ‘external-enforcement mechanism’ (ibid.). This vision has similarities with the
concepts of artificial and natural systems developed by Thompson: formal institutions
and artificial systems of organisation are both controlled by outside actors, whereas
informal institutions and natural systems are similar in the sense that they are
characterised by the so-called internal reference and self-enforcement. Further Knight
distinguishes between formal and informal institutions based on differences in the
underlying mechanism of their creation. Whereas formal institutions are created on an
intentional basis, informal institutions are unintentional (ibid.).
72
73
Following D. C. North (North, 1990) and J. Knight (Knight, 1992), Farrell and
Héritier define institutions as ‘sets of rules which structure social interaction’. They
argue that ‘informal institutions may emerge from repeated interactions’ in a formal
institutional context and have a strong impact on institutional outcomes and at a later
stage on formal institutional developments. They may be quite substantially shaped
but not fully determined by the formal framework in which actors operate (Farrell and
Héritier, 2001: 3). According to Farrell and Héritier, when informal institutions come
into being in the EU context, they determine the status quo but at the same time affect
subsequent negotiations on EU Treaties (ibid.). This means that the rules enforced by
actors on themselves may at a later stage be transferred into rules enforced on these
actors by a third party. Taking these considerations into account, we can conclude that
according to Farrell and Héritier there is a reciprocal relationship of influence, a
dynamic interaction (Farrell and Héritier, 2001: 1) between formal and informal
institutions. Thus, formal and informal institutions mean nothing else than formal and
informal rules. Farrell and Héritier exclude establishments such as the European
Commission or the European Parliament from their definition of institutions and
define them as organisational actors, i.e. ‘sets of actors united in pursuit of a common
goal’ (Farrell and Héritier, 2001: 3).
In contrast to these considerations by Farrell and Héritier, which are based on the
notion of a reciprocal relationship between formal and informal institutions, one of
the main ideas around which Knight’s analysis of social institutions is structured is
the bottom up view of relationships between formal and informal institutions.
According to Knight, informal rules provide a foundation for formal rules and, what is
more important, influence the distribution of resources which then determine the
power asymmetries in the conflict over the creation of formal institutions (Knight,
1992: 173).
According to Douglass North, formal constraints are rules that human beings devise
whereas informal constraints are conventions and codes of behaviour and are part of
the heritage called culture. In this sense, informal constraints are culture-specific. The
importance of informal constraints is evidenced by the fact that the same formal rules
established in different societies produce different outcomes (North, 1990: 4; 37).
Hereby North emphasises that there is a difference in degree between formal and
informal constraints varying from written rules to unwritten traditions and customs
73
74
(North, 1990: 46). Thus, North distinguishes these two types of rules on the basis of
their form, i.e. written or not written. According to North, it is in the interest of
participating actors to keep informal rules even though they are not given a written
form. Just like formal rules, the informal ones co-ordinate repeated human
interactions. They represent (a) extension, elaboration, and modification of formal
rules, (b) socially sanctioned norms of behaviour, and (c) internally enforced
standards of conduct (North, 1990: 40).
2.2.2 Working definitions
Contrary to scholars referred to above, in this study we will utilise the terms
formalised and non-formalised instead of formal and informal. We understand
formalised as legalised and thus, it has for us the meaning of legally regulated. Non-
formalised, on the contrary, has the meaning of legally not regulated. This type of
differentiation draws a clear distinction between relationship structures with and
without a legal basis irrespective of the fact whether they take place within
institutional settings or not.
In order to characterise relationship structures as formalised two conditions have to be
met. First, these relationships have to be regulated by constitutions or other legally
binding documents such as laws and intergovernmental agreements. Second, in order
to be characterised as formalised, relationship structures have to take place within
previously determined institutional mechanisms exercised on a regular basis. Thus,
formalised relationships are legalised as well as institutionalised.
The term non-formalised, on the contrary, refers to the political practice, i.e. the
factual patterns of interaction, which take place outside legally envisaged institutional
settings. Within non-formalised relationship structures the involvement of certain
institutions is not legally regulated but instead grown out of practice. Thus, non-
formalised relationships are by no means legalised but can be institutionalised to a
certain degree. However, the involvement of institutional mechanisms in such
relationships often takes place on an irregular basis. Non-formalised institutional
mechanisms exist side by side with formalised institutional settings and are normally
74
75
at least as important as the latter. Moreover, certain non-formalised interaction
mechanisms may emerge within the structure of or in the background of formalised
rules. To summarise, whereas formalised relationship structures comprise only
institutionalised processes, the non-formalised ones may encompass interactions
within as well as outside institutional settings. The following table summarises the
distinctive features of formalised and non-formalised relationship patterns.
Table 2. Formalised and non-formalised relationship patterns
Formalised Non-formalised
Legally binding basis YES NO
Institutionalisation YES YES/NO
Regularity of occurrence YES YES/NO
Source: the author
What becomes clear from the table is in the first place the overlapping character of
formalised and non-formalised relationship patterns, which is illustrated by a
combination of ‘yes’ and ‘no’ in two out of three features characterising non-
formalised relationships. This means that both types are to some extent characterised
by similar features. In other words, features that are essential for formalised patterns,
such as institutionalisation of relationships and regularity of occurrence, may or may
not be present in non-formalised relationship structures. The most distinctive and at
the same time exclusive criterion for the characterisation of relationship patterns as
formalised or non-normalised is whether they are codified in legally binding
documents or not. According to the working definitions formulated above and the
table, formalised relationships have a legally binding basis, whereas non-formalised
relationships do not have it. This does not mean that certain non-formalised
institutions can not be mentioned in some written documents having legal status.
However, this is not enough to consider relationships taking place in the structure of
such institutions as formalised. Instead, what makes relationship patterns and
institutions formalised is an explicit regulation of their status, functions and
organisational and procedural principles in legal documents.
75
76
To summarise, formalised and non-formalised types of interaction patterns are not
mutually exclusive and the borders between them are extremely permeable.
Consequently, it is not always possible to clearly differentiate between them. In spite
of this, it is essential to use this distinction between the two ideal types in order to
adopt a differentiated approach, to point out the existence of both patterns and if
possible to examine them from a comparative perspective.
76
77
Part 3
Belgium, Germany and Austria
Three Faces of the Federal Principle
66
3.1 General characteristics
3.1.1 History of federalism and the creation of federal states
Compared to other federations of the world, including Germany and Austria, the creation of
the Belgian federation is a product of relatively recent developments in the Belgian social and
political history.1 Created in 1830, Belgium was a unitary state till the process of
decentralisation followed by federalisation started in the 1960s. It was in 1970 that the
existence of Belgian decentralised entities, the three Communities and the three Regions,2 on
the territory of then unitary Belgian state was constitutionally codified. Since that time
Communities - the French Community, the Flemish Community and the German-speaking
Community - and Regions - the Walloon Region, the Flemish Region and the Brussels Capital
Region – have been granted more and more competences as a result of devolution. Concrete
institutional arrangements for the federated entities were worked out during the successive
federal reforms.3
The step-by-step state reforms in Belgium did not have the aim to establish a particular
previously determined federal structure. The end product of these reforms was rather a result
of a gradual process of state transformation, driven by conflicts of interest between the
Flemish and Francophone linguistic communities with regard to competence and institutional
structures in a future state. Although a number of reforms leading towards decentralisation
and federalisation were carried out in the 1960s, 1970s and 1980s, Belgium was not called a
federal state until the beginning of the 1990s. After the fourth federal reform in 1993 the
Belgian Constitution officially declared Belgium a federation composed of Communities and
Regions (Article 1, Belgian Constitution (BC)). Since that time the latter have the legal status
of federated entities.
1 The description of various aspects of the Belgian federation in this chapter is based on the following sources:
Leton, 2001a; Brassine, 1994; Alen, 1992; Delwit, De Waele and Magnette, 1999; Delpérée, 2002; Witte,
Craeybeckx and Meynen, 2000; Deschouwer, 2000; Hanf, 1999; Jans and Tombeur, 2000. 2 Communities and Regions are called Communautés and Régions in French and Gemeenschappen and Gewesten
in Dutch. We will use the English terms to refer to the Belgian federated entities. 3 For example, it was not until 1989 that the institutional set-up for the Region of Brussels Capital was created.
79
80
However, the constitutional codification of the federal character of Belgium does not
mean that the process of federalisation is completed. Federal structures are still in the
course of formation and consequently, federal practice is also subject to changes.
Federalisation in Belgium found a temporary conclusion after the state reform of
June-July 2001. The new Belgian Government that was formed after the federal
elections of 18 May 2003 decided to establish a so-called Forum composed of
representatives of federal and federated levels. The Forum is supposed to prepare
propositions for a revision of the Constitution as determined by the previous
government in April 2002. The upcoming federal reform will include, among other
things, the reform of the bicameral system, the introduction of the term ‘parliament’
to refer to regional and community councils and the further devolution of
competences such as development co-operation, weapon transport and export, and
traffic security towards the federated entities. Apart from that the federal reforms
envisage to grant constitutive autonomy to the Region of the Brussels Capital. In spite
of the ongoing process of federalisation, the end product of which is still undecided
and is discussed in Belgian political and academic circles, the institutional structures
in Belgium have acquired a considerable degree of stability and have enforced
particular types of interaction patterns among actors at various levels.
The modern federal system of Germany was created after WW II and the German
Constitution - the Grundgesetz (in English Basic Law) - dates from 23 May 1949.
Germany has a long federal tradition.30 Some authors identify the origins of German
federalism in the late Middle Ages and consider the Holy Roman Empire, which
existed from 962 till 1806, as the first proto-federal state on the territory of modern
Germany (Nipperdey, 1980: 126). Since that time the political structures of states that
existed throughout history on the territory of Germany were based on some form of
federal organisation, with the exception of the Nazi regime from 1933 till 1945.
The first federal polity in the modern meaning of the term on the German territory
was the German Federation (der Deutsche Bund), created in 1815. It was a structure
characterised by predominantly confederal features. Based on sovereignty of its
30 On various aspects of the German federal structure, including historical and institutional characteristics see among others Laufer and Münch, 1997; Scharpf, 1985; Abromeit, 1992; König,
80
81
constituent states and characterised by weakness of centralised elements and
institutions, it was a confederation (Staatenbund) rather than a federation
(Bundesstaat). One of the main purposes of the German Federation was to guarantee
external security of its constituent states. The vast majority of decisions were taken by
unanimity.
A new type of federal structure was created after the unification of the German states
first in the North German Federation (der Norddeutsche Bund) in 1867 and somewhat
later in the German Empire (Kaiserreich) under Bismarck in 1871. Compared to the
German Federation of 1815, the Kaiserreich was characterised by federal rather than
confederal features. The 25 constituent entities of the Federation had a high level of
autonomy whereby Bayern and Württemberg had more competences than other
entities. The Federation was financially dependent on fiscal contributions from the
side of its constituent states. The imperial federal structure was characterised by a
hegemonic position of Prussia, which was reflected in the institutional structures, the
legislative process and the representative organ of the constituent states – the
Bundesrat. The Chancellor of the Empire was appointed by the King of Prussia. For
this reason the German Empire has been described in the literature on the subject as a
‘hegemonic federation’ (Nipperdey, 1980: 148).
The state structure of the Weimar Republic, which was founded after WW I in 1919,
was also organised along federal principles. It was at that time that the constituent
entities of the Federation received the name ‘Länder’. The Weimar Republic was
more centralised than its predecessor state structures if we take into account the
institutional position of the Reichsrat - the organ representing federated entities at the
federal level - and the distribution of competences and financial resources between
federal and federated orders. During the National Socialist regime under Hitler, the
German political system lost its federal features and was transformed into a unitary
state. The Länder were dissolved by Hitler in 1934. To summarise, the pre-WW II
political history of Germany is characterised by the existence of various types of
federal systems and by the absence of a centralised and unified nation state. In this
sense, federalism as a phenomenon has a prominent place in the German historical
1999; Beyme, 1996; Leonardy, 1999; Johnson, 1999; Jeffery, 1999b; Umbach, 2002; Nipperdey, 1980; Braun, 1996.
81
82
memory (Umbach, 2002: 5; Johnson, 1999: 23). According to Nevil Johnson, ‘the
picture which most Germans have of their past differs profoundly from the historical
images familiar in Britain, France or Spain where there is a long experience of
government from a dominant capital city’ (Johnson, 1999: 26).
The modern political system of Germany was organised along federal lines not
because the country had a long federal past. In the process of drafting of the German
Constitution after WW II, federalism and democracy were the two main conditions
put forward by the Western Allies - the United States, France and the United
Kingdom - to the Minister-Presidents of the West German Länder. The vertical
division of prerogatives based on federal principles was meant to prevent
accumulation of power in the hands of central authorities and to contribute to the
creation of a solid basis for democracy.31 The establishment of federal structures in
post WW II Germany can be described as a ‘quasi-federal renaissance’, because the
German political system was organised along federal principles in the first place on
the urge of the Allies, this means from above (Nipperdey, 1980: 164). However, the
federal past has shaped not only the historical memory of the Germans, as mentioned
above, but has influenced to a substantial extent the institutional arrangements of the
post-war federal structure.32
The Austrian federation in its current form was created after the dissolution of the
Dual Monarchy of Austria-Hungary (1867-1918) following WW I.33 Austria was one
of the states that emerged on the territory of the former Monarchy. The establishment
of federal structures in the relatively small and ethnically homogeneous Austrian state
has to be explained historically. The Austrian federated units, the Länder, are
31 Similar deliberations played an important role in Spain. Here the process of democratisation went hand in hand with the process of decentralisation during the 1970s and 1980s after the termination of Franco dictatorship, which had abolished regional institutions. It has to be mentioned, however, that the major driving force of the Spanish process of decentralisation was the existence of various linguistic and ethnic identities in the Spanish society and culture. This aspect was absent in Germany. The processes of democratisation and decentralisation in Spain were accompanied by the process of integration into the structures of the European Union. Spain submitted its application for EU membership in 1977 and became a member state of the Union in 1986. 32 For example, the structure of the upper chamber of the German Parliament, the Bundesrat, which is composed of representatives of Länder governments, can be explained historically (see section 3.1.4). The representation offices of the German Länder to the Federation are also a relict of Germany’s confederal tradition (see section 4.2.1.2.2).
82
83
historical entities that existed on the territory of modern Austria before the creation of
the Austrian federation after WW I. Only Burgenland, which was created by the
German-speaking parts of Western Hungary, joined the Austrian state after WW I.
However, the Austrian Länder historically never represented strong federated entities
with substantial legislative competences. In the Dual Monarchy of Austria-Hungary
the prerogatives of the Länder were predominantly restricted to administrative
competences.
The period after the dissolution of the Monarchy was characterised by the
simultaneous emergence of provisory assemblies at two levels, central and regional
(the Länder), on the territory of modern Austria. Via their assemblies the two levels
exercised a number of sovereign powers (Weber, 1980: 62-63). The Provisory
National Assembly proclaimed the First Austrian Republic on 30 October 1918. At
this point Austria was not yet a federation but a unitary state. The creation of a federal
state became possible only after the Länder decided to join the Austrian Republic.34
Political debates on the federalisation of the Austrian state took place between 1918
and 1920. These discussions were dominated by the controversy between centralist
and federalist forces. Finally a decision was made in favour of a federal solution:
according to the Constitution of 1920, the Bundesverfassungsgesetz (B-VG), Austria
consists of nine federated units, the Länder, to which the Constitution refers to as
independent (in German selbständig) entities.35 Being worked out as a result of a
compromise between federalist and centralist forces, the Constitution of the First
Austrian Republic did not give any far-reaching competences to the federated entities.
Thus, the relatively weak position of the Länder throughout history found a reflection
in the federal Constitution of 1920. Federal structures in Austria were abolished at the
end of the 1930s when the country was occupied by the German Nazi regime. Austria
33 The analysis of various aspects of the Austrian federal system in this chapter is based among others on the following sources: Schäffer, 1993; Walter and Mayer, 1996; Dachs et al., 1991; Jelavich, 1988; Weber, 1980; Pressien, 1996; Falkner, 2001; Rosner, 2000; Bußjäger, 2001. 34 The majority of the Länder joined in 1918, whereas Tirol, Niederösterreich and Burgenland joined later. The preferred option of Tirolian authorities was to secede from Austria, create the state of Tirol and thus avoid the separation of South Tirol from Austria. Vorarlberg wanted to become a canton of the Swiss Confederation. 35 According to Article 2 of the Austrian Constitution the federal state is composed of nine independent Länder: Burgenland, Kärnten, Niederösterreich, Oberösterreich, Salzburg, Steiermark, Tirol, Vorarlberg and Wien.
83
84
regained independence in 1945 after WW II but remained occupied by the Allies
(France, Great Britain, USA and the Soviet Union) up until 1955. The Constitution of
1920 remained the legal basis of the Second Austrian Republic, which was founded
after WW II.
3.1.2 Federal reforms
The Belgian federal institutions are in the first place created for and based on a
society composed of two linguistic communities, the Flemish and the French, and
characterised by a centrifugal tendency. Apart from these two linguistic groups there
is a German-speaking Community in Belgium, which consists of German-speaking
Belgians living in the eastern part of the country near the border with Germany. On 1
October 2001 the population of Belgium was 10 296 350 out of which 5 968 074 lived
in Flanders, 3 354 711 in Wallonia and 973 565 in Brussels. The German-speaking
Community situated on the territory of the Region of Wallonia counted 71 304
Belgians (Moniteur belge/Belgisch staatsblad, 28.05.2002: 23121). Discussions
related to the proportion of various linguistic groups in the Belgian society are
necessarily linked with such sensitive issues as historical memory and linguistic
identities. For this reason, it has been forbidden by law to generate statistical data on
the percentage of linguistic communities in the entire population of Belgium.
However, there exist data on the population in each Region. According to this data out
of hundred Belgians 58 live in Flanders, 33 in Wallonia and 9 in Brussels
(http://statbel.fgov.be/press/fl006_fr.asp ).36
A complex societal composition and the strategies followed by the linguistic
communities throughout decades, especially since the 1960s, lead to a continuous
process of federalisation and found expression in a state structure, in which federated
entities have a very high level of autonomy. Five successive federal reforms took
place in Belgium in 1970, 1980, 1988, 1993 and 2001, whereby, contrary to previous
federal reforms, the last one did not result in constitutional amendments. The process
of federalisation in Belgium was induced in the first place by a growing Flemish
36 According to informal estimations ca. 60-62 per cent of Belgians is Flemish, whereas ca. 38-40 per cent is French-speaking.
84
85
national movement, which pursued the aim to emancipate Flanders linguistically and
culturally from the Belgian state dominated at that time by the French language. The
main tensions in the pre-federalisation period as well as since the 1960s throughout
the whole process of federalisation were around the issues and policies related to the
use of language. The language controversy between the Flemish and the
Francophones was in the first place characterised by demands from the Flemish side
for equal linguistic rights with the Francophones and for cultural autonomy. Its
growing economic strength and potential after WW II gave Flanders a reason to strife
for more autonomy also in other fields.
The first steps towards the process of decentralisation were made in the 1960s. In
1960 the unitary broadcasting structure was split into Flemish and French-speaking
ones. As a result of the language reforms of 1962 and 1963 linguistic borders were
fixed in Belgium. In this way the linguistic problem was territorialised and four parts
based on linguistic differences were established: the Dutch-speaking, the French-
speaking, the German-speaking and the bilingual Region of Brussels (Deschouwer,
2000: 99-100).37 In 1962 separate culture departments were created and later in 1966
the unitary Ministry of Culture was divided in two parts. The same happened to the
Ministry of Education in 1968. The changing political climate found its expression in
the elections of 1968 marked by considerable gains by the parties organised around
linguistic issues (Witte, Craeybeckx and Meynen, 2000: 251). The constitutional
reforms undertaken in the 1970s, 1980s and 1990s gradually institutionalised the
linguistic problems of the Belgian society under a federal framework. As throughout
this period more and more competences were devolved from the central government
to the Regions and Communities, and Belgium was transformed from a unitary state
to a federal one, it would be more precise to refer to the process of state
transformation in Belgium as de-federalisation rather than federalisation.38
37 Between 1920 and 1963 linguistic borders were altered according to the regularly conducted censuses: where at least 30 per cent of the population spoke a language other than the official one, the territory was declared bilingual. This regulation was cancelled by the reform of 1963. 38 As the word federalism takes its origin in the Latin word foedus, which means union, we may say that ‘federalisation’ actually refers to a unifying process aimed at creating a structure which guarantees a certain degree of diversity in unity. De-federalisation rather stands for a process, which transforms a unitary state into a federal one.
85
86
While Belgium was gradually transforming from a unitary to a federal state, a
centralising process was taking place in the German federal system. This centralising
process found its expression in a number of federal reforms in the second half of the
1960s such as the financial reform (Finanzreform) – the reform of intergovernmental
fiscal relations - and the creation of the so-called joint tasks (Gemeinschaftsaufgaben)
for the Bund and Länder. The regulations with regard to joint tasks were added to the
Financial Constitution in 1969 and created a legal basis for co-financing the
responsibilities of the federated entities by the Federation in order to equalise and
adjust financial resources (Leonardy, 1999: 16). This process and its consequences for
the German federal balance found a response in the scientific literature. The German
federal system has been referred to by scholars of federalism as a unitary federation
(‘unitarischer Bundesstaat’) (Hesse, 1962) or as a closet centralism (‘verkappter
Einheitsstaat’) (Abromeit, 1991).
A quite unique type of federal reform, which distinguishes Germany from other
federations of the world, took place in the course of German unification in the
1990s.39 It should be noted that the basic institutional structures of the German federal
system were not changed as a result of unification. The five East German Länder,
which had been abolished in 1952 and were restored shortly before the unification,
joined the eleven West German Länder on the basis of Article 23 of the West German
Constitution. This article made it possible to extend the legal, economic and political
system of West Germany, including the regulations with regard to federalism, over
the East German Länder. As a result of unification financial and social disparities and
asymmetries between the so-called ‘old’ and ‘new’ Länder increased to a considerable
extent.40 In legal terms, the changes related to the unification were quantitative rather
39 The reforms with regard to unification were worked out in the Joint Constitutional Commission (Gemeinsame Verfassungskommission), composed of 32 representatives of the Bundestag and the equal number of representatives from the Bundesrat. 40 Charlie Jeffery refers to ‘a desolidarization of inter-Länder relationships contingent on the growing prominence of territorially specific interests’ that characterises the unified Germany. According to Jeffery, the German co-operative federalism is undermined by the pursuit of self-interests by the Länder, and by the eroding cross-Länder solidarity. Jeffery terms this development as a ‘Sinatra doctrine’ of the Länder, each Land doing it ‘my way’ and refers in this context to changing coalitions formed by the federated entities around various issues (Jeffery, 1999b: 338-340). On German unification and its consequences see also Braun, 1996; Wachendorfer-Schmidt, 1999; Münch, 1999; Luthardt, 1999.
86
87
than qualitative as the unified Germany became a bigger state, but ‘its internal
constitutional structure has remained largely the same as before’ (Johnson, 1999: 35).
While trying to distinguish various periods in the history of the modern German
federal system, Peter Häberle differentiates between four phases, which partly overlap
with each other. The so-called (1) ‘classic federalism’ lasted from 1949 till 1968 and
was followed by the (2) ‘unitary federation’ in the meaning of the term as introduced
by Hesse (see above). The phase of (3) ‘co-operative federalism’ was established
parallel to the unitary federation, as it was shaped by the federal reforms launched in
the 1960s and resulted in increased co-operation between the federal and federated
levels. The next phase is called (4) ‘fiduciary (fiduziarisch) federalism’ that started
after the unification. ‘Fiduciary federalism’ denotes two types of processes taking
place in the German federation after the unification. On the one hand the federal level
is (on the short term) made responsible for certain financial, economic and technical
tasks of the Eastern Länder in order to create equal living standards on the entire
territory of Germany. On the other hand, the unified Germany is characterised by a
division between East and West with regard to economic and social development,
mentality, and culture (Häberle, 1993: 208-211).
In the first decade of its existence the Austrian post-WW II political system – the
Second Republic – was not characterised by strong federal features. This was partly
due to the fact that the governing Grand Coalition at the federal level composed of the
two biggest parties, the Socialists (SPÖ) and the People’s Party (ÖVP), was
centralising competences in order to deal with the allied powers that occupied Austria
at that time. After the termination of the occupation by the Allies in 1955, the Länder
started to protest against the existing centralism and formulated their priorities and
positions in the so-called request catalogues (Forderungskataloge) of the Länder in
1964, 1970, 1976 and 1985. It was at this stage that the Austrian federated entities
started to develop non-formalised horizontal co-ordination mechanisms such as the
Conference of the Heads of Länder Governments or the Joint Office of the Austrian
Länder in order to co-ordinate and formulate their positions vis-à-vis the federal
government. These institutions still exist and successfully function, and will be
extensively analysed in chapter 4.2 of the study.
87
88
The demands of the Länder as formulated in the request catalogues were partly
accommodated as a result of successive federal reforms in 1974, 1984 and 1988. The
reform of 1974 constitutionalised the right of the Federation and the federated entities
to conclude agreements (Gliedstaatsverträge) with each other on the vertical (Bund-
Länder) as well as on the horizontal (Länder-Länder) level (Article 15 B-VG). This
constitutional instrument of vertical and horizontal co-operation strengthened co-
operative federalism in Austria. The reform of 1984 gave the right to consent
(absolute veto right) to the upper chamber of the Austrian Parliament, the Bundesrat,
in cases where federal legislation limited the competences of the Länder. As a result
of the constitutional amendment of 1988, Article 16 B-VG allowed the Austrian
federated entities to conclude treaties under terms of international law in fields of
their prerogatives with neighbouring states or federated entities of these states. The
provisions of this article and its implications for the political practice of foreign
relations will be analysed in detail in chapter 4.1.
Although the federal reforms of the 1970s and 1980s gave more powers to the
Bundesrat, and granted certain competences to the Länder, such as aid for house
building (Wohnbauförderung), they also extended the competences of the federal
level. For example, the federal government became exclusively responsible for certain
subject matters in the field of environment protection. To summarise, in spite of some
constitutional changes in favour of the Länder, the federal reforms in Austria did not
result in any substantial strengthening of the federated entities vis-à-vis the
Federation. In international comparative perspective the Austrian Länder are
considered as federated entities with relatively weak powers.
Attempts to reform the Austrian federal state were undertaken parallel to Austria’s
accession to the European Union in 1995. The federal reform failed because the
proposals were vetoed in 1994 by the Conference of the Heads of Länder
Governments, which is an intergovernmental institution of horizontal co-ordination
among the federated entities. According to the members of this conference, the latter’s
refusal to approve the proposals was due to two reasons. First, the proposals were
dominated by federal interests, and second, they left the question of the distribution of
the financial burden between the Federation and the Länder unsolved (Leitner and
Neuhold, 1999: 303; Müller, 2000: 214-215).
88
89
On 30 June 2003 the Austria Convent (Österreich-Konvent) started its work with the
aim to develop a draft for a new constitution till the end of 2004. Constitutional
reforms will include topics such as division of competences between the levels,
distribution of legislative and administrative prerogatives between the Bund and the
Länder, institutional structures, including the upper chamber of the Parliament (the
Bundesrat) as well as some guiding principles of the financial constitution. The
convent consists of 70 members including representatives of federal and Länder
governments and parliaments, political parties and social partners. The head of the
Convent is the President of the Austrian Court of Audit (for more details see at
www.konvent.gv.at ).
3.1.3 Symmetry versus asymmetry
The notions of symmetry and asymmetry in a federation refer to federal relationship
structures and in particular to ways in which federated entities are linked to the system
as a whole, to the federal level and to each other.41 Based on these criteria, the
Austrian and German federations are examples of symmetrical federations,42 whereas
Belgium is characterised by asymmetry of relationships between and within the
levels. The sixteen German Länder have identical constitutional status, rights and
competences. The same principle applies to the nine Austrian Länder.43
41 As for the number of federated entities, in Germany it is higher (16 Länder) than in Austria (nine Länder) or in Belgium (three Communities and three Regions). However, compared to other federations such as the United States (50 States), Switzerland (26 Cantons), Mexico (31 States and one federal district) or India (25 States and seven union territories) (Watts, 1999a: 10), the number of federated entities in Germany is not particularly high. 42 Symmetry in federal states normally refers to the symmetry regarding the formal status of federated entities and their relations to the federal level as regulated by legal documents. It can also be called constitutional symmetry. However, symmetry may as well signify equality among federated entities in as far as, for example, their population, territory, economic strength and natural resources are concerned. Whereas constitutional symmetry is established in a number of federations, like Germany, Austria or the United States, it is almost impossible to find federal states that would be symmetrical with regard to cultural, economic, social and political factors characterising them. Because these factors may easily vary from federated entity to federated entity, asymmetries are established among them (on symmetry and asymmetry in federal states see Tarlton, 1965; Agranoff, 1999a; Watts, 1999c; Burgess and Gress, 1999). 43 In contrast to the Austrian Länder, in Germany some federated entities are called differently than the others. For example, compared to other German Länder, Bayern, Sachsen and Thüringen are officially called ‘Freistaat Bayern’ (Free State of Bavaria), ‘Freistaat Sachsen’ (Free State of Saxony) and ‘Freistaat Thüringen’ (Free State of Thuringia). These differences in names, however, do not have any legal implications on the formal status of the three Länder and on the symmetry of constitutional relationships between the federal level and the federated entities. The term Freistaat was originated in
89
90
In Belgium federal asymmetries are expressed in a number of ways. In the following
paragraphs we will give some examples. First, we have to mention the existence of
two types of federated units, Communities and Regions, in Belgium. Such a federal
structure was established for two reasons. The first was the need to meet the demands
of Flemish and Francophone linguistic groups with regard to the distribution of
legislative and administrative competences. Before and during the process of
federalisation the Flemish requested the creation of Communities exclusively
responsible for competences in the field of culture and education in order to safeguard
their cultural and linguistic difference from the Francophones. The Francophones, on
the contrary, were in the first place concerned about their socio-economic autonomy
threatened by the growing economic strengths of Flanders. Their priority was the
creation of Regions, which would be granted sufficient competences to regulate socio-
economic issues. Federal reforms in Belgium accommodated the demands from both
sides. As a result, the Belgian Communities are held responsible for culture, education
and personalised matters, whereas Regions deal with territorial issues –
predominantly socio-economic matters.44 Thus, the Belgian federal structure
combines principles of territorial and personal federalism with each other.
The second reason for the creation of the two types of federated entities was the fact
that Brussels, the Belgian capital that is a predominantly French-speaking city, is an
enclave in Flanders.45 This complicated geography made it impossible to unite
Brussels with any other federated entity. As a result a special status for Brussels was
created and the Belgian capital became a separate Region along with Flanders and
Wallonia. The fact that Brussels’ population is predominantly French-speaking was
one of the main reasons, together with economic concerns (see above), why the
the 18th-19th centuries. Its meaning is close to the meaning of the term ‘republic’ and refers to a state created on the basis of a free will of its population. The term ‘free state’ was meant to distinguish such states from monarchies. In the Weimar Republic all German Länder, except Baden and Hessen, were called free states (Bundeszentrale für politische Bildung, 2002: 5).44 The Belgian federated entities have their own parliaments, called Councils, and governments that are responsible before the Councils. As mentioned above, in the framework of the upcoming federal reform, the term ‘parliament’ will be officially introduced to refer to the legislative bodies of Regions and Communities. Since 1993 regional and community Parliaments are directly elected, whereas before 1993 they were composed of the deputes of respective linguistic groups elected for the two chambers of the Belgian Parliament. In this way, the old system of representation made it possible for the sameperson to be a member of the Parliament at two levels, regional and central.45 There exist no official statistical data on the proportion of the two linguistic communities in the population of Brussels. However, it is estimated that the Flemish constitute about 15 per cent of Brussels’ population, whereas the Francophones make out 85 per cent (Deschouwer, 2000: 107).
90
91
Francophones of Belgium insisted on the creation of a separate federated entity on the
territory of the capital.
The second expression of asymmetry in the Belgian federation is the overlapping of
territories that fall under regional and/or community jurisdiction. In other words,
because Regions and Communities have different types of competences, the same
territory in Belgium may fall under the jurisdiction of regional as well as community
authorities, not to say anything about federal authorities, the decisions of which in
certain fields of competence (see section 3.2.1) apply, of course, to the entire territory
of Belgium. For example, the institutions of the German-speaking Community
regulate the matters of community competence, whereas in the field of regional affairs
decisions made by the institutions of the Walloon Region apply to the nine
municipalities that compose the German-speaking Community of Belgium. In matters
of regional competence decisions made by the institutions of the Brussels Capital
Region apply to the population of the capital composed of Francophones and
Flemish.46 Issues related to community competences are regulated separately for the
two linguistic groups living in Brussels. The French Community Commission
(COCOF), composed of French-speaking members of the Brussels Parliament, has
legislative functions whereby its legislation concerns the French-speaking institutions
of Brussels. The Flemish Community Commission (VGC), composed of Flemish
members of the Brussels Regional Parliament, on the contrary, does not have any
legislative competences. It only implements the decrees of the Flemish Parliament.
The latter concern the Flemish institutions of the capital (Deschouwer, 2000: 107).
Third, institutional asymmetries in Belgium exist because the two linguistic
communities chose for various models of community and regional institutional
structures. For example, since 1980 the Flemish community and regional institutions
are merged and there is only one Flemish Parliament and one Flemish Government,
46 In spite of the fact that Francophones constitute a vast majority of Brussels’ population, governmental structures of the capital are based on the principles of parity as a result of which each linguistic community has two ministers in the Government of the Brussels Region. The Minister-President of Brussels is always a Francophone. Such a structure of positive discrimination in Brussels was created in exchange of the parity established on the federal level. In spite of the fact that the Flemish constitute the majority of the Belgian population, both linguistic communities have seven ministers in the federal government. The Premier of Belgium is normally a Flemish politician.
91
92
whereas the French Community and the Walloon Region have separate institutions.47
Since the Flemish regional and community institutions are merged, the composition of
the Flemish legislative body is determined as a result of regional elections. As for
Wallonia and the French Community, the situation is different here: while the
Walloon Parliament is directly elected, the Parliament of the French Community is
not directly legitimised but composed of the members of the Walloon Parliament and
the French-speaking members of the Brussels Parliament.48
47 It should be noted here that primarily for reasons of financial difficulties the French Community has delegated parts of its competences to the Walloon Region and parts to the French Community Commission of Brussels. Such delegation and redistribution of competences on the horizontal level among the federated entities is allowed by the Belgian Constitution. 48 The Spanish system is also highly asymmetrical. The Spanish Constitution (SC) creates a legal basis for two types of decentralisation. Consequently, two types of Autonomous Communities have been created in Spain. Article 151 of the Constitution made it possible for the so-called historical communities, the Basque Country, Catalonia and Galicia, to become autonomous by a faster route. Andalusia is the only non-historical community, which was constituted according to Article 151 SC. The four so-called fast route Autonomous Communities enjoy a higher level of autonomy than the others. They gradually overtook in their Statutes all the competences that do not belong to the central government according to Article 149 SC. For the so-called slow route communities, constituted under terms of the procedure as regulated in Article 143 of the Constitution, there exists an upper limit with regard to competences they may avail of (Article 148 SC). However, there is no regulation in the Spanish Constitution concerning the minimum of competences of Autonomous Communities. In order to reduce asymmetry in the political system, the central government has been trying to outbalance the special position of the historical communities by granting certain competences to all the 17 decentralised entities. On the basis of the Autonomy Pact of 1992 a number of competences, such as education, were unilaterally transferred from the central government to all Autonomous Communities. It has to be mentioned that although Valencia and the Canary Islands belong to the category of slow route communities, they enjoy a higher degree of autonomy than the remaining slow route autonomies (Hanf, 1999: 145). In this sense, we can also talk about three rather than two groups of ACs as far as their level of autonomy is concerned. The competences and powers of Spanish decentralised entities are regulated by the Constitution and by their Statues of Autonomy. These are created in a process of co-operation between the respective ACs and the central state and then enacted as organic laws of the state by the central parliament. However, the Statutes can not be changed or abolished unilaterally by the central state but only with the participation of the respective Autonomous Communities (Hanf, 1999: 148). In the case of the so-called fast route Autonomous Communities the Statutes have to be approved by the populations of the respective ACs via a referendum. Asymmetry in Spain finds its expression among others in legislative and administrative competences attributed to single decentralised entities, their prerogatives in the field of taxation and finance and linguistic regulations. For example, the Basque Country and Navarre have special competences in the field of taxation and collect all their taxes except customs duties and the taxes on petroleum products and tobacco. As for language provisions, the Statutes of six Autonomous Communities create a legal basis for bilingualism in these decentralised entities, whereas the rest of the country is monolingual. The Spanish Constitution states that Castilian is the official language in Spain, but other Spanish languages – Catalan, Euskera (Basque), Galician, Valencian and Majorcan – may also have an official status in the respective Autonomous Communities (on asymmetry in the Spanish system see Agranoff, 1999b: 94-118, Moreno, 1999: 149-169; Hanf, 1999: 137-176; Keating, 1999a).
92
93
3.1.4 The role of second chambers
Belgium, Germany and Austria have bicameral parliaments. In federal states the
upper chambers of federal parliaments normally serve the aim to represent federated
entities in one way or the other in the institutional processes and structures, and in
particular in the federal legislative process. The role of the second chamber in
Belgium, Germany and Austria varies to a considerable extent, as does its structure
and the symbolical meaning attached to it in each of the three federations. In the
following paragraphs we will briefly analyse the role of the Belgian, German and
Austrian upper chambers from a comparative perspective. Apart from describing
some general characteristics, we will put an emphasis on the role of the upper
chamber as an organ representing federated entities vis-à-vis the Federation in federal
legislative and other institutional processes.
The creation of the upper chamber of the Belgian Parliament – the Senate - is not a
product of the process of federalisation. This institution existed since the creation of
the Belgian state in 1830. However, from 1831 till its democratisation in 1920-21 the
Senate served the aim to represent the interests of aristocracy in the political process
and had equal competences with the lower chamber of the Belgian Parliament, the
House of Representatives. Since the beginning of the 1920s the Senate has been
directly elected, just like the House of Representatives. The federal reforms in
Belgium made it necessary to think about the role of the Senate as an institution
representing the interests of the Communities and Regions within the new
institutional structure of the federal state.
The restructuring of the Belgian Parliament took place as a result of the state reform
in 1993. The number of deputes in both the Senate and the House of Representatives
was reduced49 and a complicated system of representation in the Senate was created.
Out of 71 senators 40 are directly elected whereby 25 senators are elected in Dutch-
speaking and 15 senators - in French-speaking areas. Out of the remaining 31 senators
(71 – 40), 21 are appointed by the Community Councils of the Flemish, French- and
German-speaking Communities. Hereby the Flemish and French Community
49 The number of deputes in the House of Representatives was reduced from 212 to 150, whereas the Senate has now 71 members instead of previous 184.
93
94
Councils appoint each ten senators whereas the Council of the German-speaking
Community appoints one senator. Directly elected senators and those appointed by the
Community Councils make out 61 senators, who elect the remaining ten senators.
These are the so-called co-opted senators. The Dutch-speaking senators co-opt six and
the French-speaking senators co-opt four senators.50
The Senate has a significant position in the institutional structure of the Belgian
federation in as far as in a number of areas it has a veto right and its powers are equal
to that of the House of Representatives. To these areas belong, for example, the laws
that change the Constitution, the ratification of international treaties concluded by the
Federation and the so-called special laws.51 However, in the federal legislative
process the position of the Belgian Senate is relatively weak. For example, it is
excluded from the legislative process on federal budgetary provisions and issues
related to naturalisation. Hereby it should be taken into account that many subject
matters regulated in other federations by federal laws are regulated in Belgium by the
so-called special laws, and the laws implementing these, as well as by co-operative
agreements between the governments of federal and federated entities. In these areas
the Senate has equal powers with the House of Representatives. Thus, with regard to
its role in the federal institutional structure, the Senate can not be considered as a
weak institution. However, taking into account its composition, it can not be regarded
as an institution representing the interests of the federated entities at the federal level.
Only about 30 per cent of the senators represent the Communities, whereas the
representation of Regions in the Senate is not legally guaranteed. The extent to which
the representatives of Regions are present in the upper chamber depends on the
composition of the so-called co-opted senators (Hanf, 1999: 117-123).
The German Bundesrat is composed of delegates by Länder governments. Throughout
the constitutional history of Germany since 1815 the organ representing the
constituent entities has always been composed of delegates of these entities’
governments, and not of directly elected representatives or those from regional
parliaments (König, 1999; Leonardy, 1999). Thus, the intergovernmental element has
50 It has to be noted that the children of the Royal Family of Belgium are formally members of the Senate but normally do not attend its sessions.
94
95
been historically rooted in the German federal tradition and has determined the world-
wide unique structure of the upper chamber of the German Parliament. The number of
representatives and votes per Land in the Bundesrat varies according to population.52
However, votes available to single federated entities are cast uniformly by these
entities and can not be split. Each Land with less than two million inhabitants has
three votes. Länder with two to six million inhabitants have four votes, whereas those
with more than six million inhabitants have five votes and federated entities with
more than seven million inhabitants have six votes. It is notable that in the specialised
committees of the Bundesrat, that do the actual legislative work, each Land has one
vote (Leonardy, 1999: 5).
The distribution of legislative and administrative competences in the German federal
system has implications on the role of the Bundesrat in the federal legislative process.
As a consequence of functional division of competences whereby the Länder are to a
large extent responsible for administration of federal laws (for details see section
3.2.2), ‘the most outstanding function of the Bundesrat is to apply the administrative
experience of the Länder to the shaping of federal law’ (Leonardy, 1999: 12). About
55 per cent of federal legislation require the consent of the Bundesrat (consent bills)
because these federal laws contain provisions that concern the competences of the
Länder or the matters, which have financial implications for the federated entities. In
all other cases, which make out about 45 per cent of federal legislation, the Länder
have a suspensive veto right (objection bills). Whereas in the case of objection bills
Bundesrat’s objection can be overruled by a new vote in the Bundestag, consent bills
can not become laws without the consent of the upper chamber. Controversies
between the two chambers are settled in the so-called conciliation committee
(Vermittlungsausschuß) composed of equal number of representatives from
Bundestag and Bundesrat that are not bound by the respective institutions or the
political party they belong to.
The second chamber of the Austrian Parliament is also called Bundesrat. It was
created after WW I as a result of a compromise between centralists, who defended the
51 Special laws require a two-thirds majority of the votes cast in each chamber of the federal parliament whereby an absolute majority of the votes cast has to be reached in each linguistic group. 52 Each Land has as many representatives in the Bundesrat as votes.
95
96
idea of a one-chamber parliament in a unitary Austrian state, and federalists, who
advocated the creation of a two-chamber parliament for federal Austria. As a result of
the compromise solution, the Constitution of 1920 created a second chamber but
granted rather limited constitutional powers to it (Schäffer, 1993: 181-182). The
Austrian Bundesrat is composed of the representatives of the Parliaments of the
Länder elected by the latter for the duration of their legislative term.53 Like the
German system, the Länder representatives are sent to the Bundesrat after regional
elections, which do not coincide with each other or with federal elections. This means
that the composition of the upper chamber changes during the legislative term of the
lower chamber, the Nationalrat. Each Land sends representatives to the second
chamber according to its population, the number of representatives per Land varying
from three to 12. Whereas in Germany the Bundesrat is composed of delegates of
Länder governments, in Austria the representatives from the Länder Parliaments are
sent to the upper chamber according to the proportion of various political parties in
the respective legislatures (Schäffer, 1993: 182). Thus, although the delegations of the
Länder in the Bundesrat are determined by the results of Länder elections, these
delegations are not composed exclusively of representatives of governing parties in
the federated entities, as it is the case in Germany.
The role of the Bundesrat as an organ representing the interests of the Länder in the
federal political process, and above all in the federal legislative procedure, is rather
limited. According to the Austrian Constitution, the Nationalrat together with the
Bundesrat fulfils the legislative function. However, except for a number of limited
cases, in the federal legislative procedure the Bundesrat only has the right to objection
(suspensive veto right) and not to consent, which means that the objection of the
Bundesrat can be overruled by a new decision made in the Nationalrat, the so-called
Beharrungsbeschluß. It is only since 1984 that those legal acts, which in any way
limit the constitutional powers of the Länder, require the consent of the upper
chamber of the Austrian Parliament.
53 The representatives of the Austrian Länder in the Bundesrat do not have to be members of the respective Länder Parliaments. However, they have to have the right to become deputes in these parliaments.
96
97
The main argument explaining the weak institutional position of the Bundesrat is
related to its structure. The members of the Austrian Bundesrat have a free mandate
(freies Mandat) – in contrast to the so-called imperative mandate (imperatives
Mandat) of the members of the German Bundesrat – which means that they are not
responsible to any institutional authorities of the Länder. Instead, they rather feel
bounded by parties, which they are members of. In this sense, the upper chamber is
dominated by party political orientations of its members rather than by interests of the
Länder. In the Austrian political process and party political relationships a special role
is played by the so-called parliamentary clubs (factions), which unite the members of
the same party in the Nationalrat and the Bundesrat. The creation of such formations
is facilitated by the fact that the party political landscape at the federal as well as the
Länder levels in Austria is to a large extent dominated by the same parties.54
Moreover, the seats in the plenary of the Bundesrat are distributed according to party
membership. This means that the delegations of the single Länder do not sit together,
as it is the case in Germany. Instead, the representatives from the Länder are grouped
according to party lines (Rosner, 2000: 101-102; Schäffer, 1993: 181-182).
To summarise, whereas the German Bundesrat’s most important role is the
representation of federated entities in the federal legislative process, in Belgium and
Austria the composition and structure of the respective upper chambers did not lead to
the establishment of these organs as true representative institutions of the federated
units vis-à-vis the Federation.
54 A number of scholars have analysed the role of political parties and corporate actors in the Austrian political system and in this context have referred to Austria as to a party-state (Parteienstaat) that leaves the federal state in the shadow. This means that relationships and decisions made along party political lines have a higher relevance compared to federal relationships. A special role in Austria is played by the so-called social partnership (soziale Partnerschaft), which signifies a corporatist co-operation of peak associations of labour and management (such as the Chamber of Business, the Chamber of Labour or the Austrian Trade Union Confederation) with the state and the parties when shaping social and economic policies. Draft legislation is negotiated between social partners and respective ministries within specifically designed formalised and non-formalised settings before being approved in the Parliament (Falkner, 2001: 6).
97
98
3.1.5 Ethnic versus territorial principles
Flemish and Francophone Belgians are normally referred to as linguistic rather than
ethnic groups. However, we can also say that the ethnic identity of these groups in
Belgium finds its expression in their linguistic distinctiveness. In order to find an
adequate institutional reflection of linguistic diversities in the Belgian society, a very
special type of federal system has been created. The Belgian federal structure is a
mixture of ethnic and territorial elements. Whereas Communities are an institutional
expression of the first element, Regions symbolise the second as they are organised
along the territorial dimension. Apart from ethnic and territorial elements, a special
role is played in Belgium by principles of personal federalism which find an
institutional concretisation in the Brussels Capital Region, in the German-speaking
Community and in the differentiation between the Walloon Region and the French
Community.
The processes in the social and political history of Belgium in the 20th century were
shaped by conflicting preferences and strategies followed by the two linguistic
communities. These preferences and strategies resulted in political compromises that
found expression in a bipolar state structure. The bipolar processes dominating the
Belgian society were translated into institutional arrangements separating the two
linguistic communities in such a way that each of them has a considerable and in a
comparative perspective even exceptional degree of autonomy. Institutional structures
in Belgium were designed to make the two main linguistic groups as equal as possible
and to avoid a situation in which the Federation and federal interests could be
dominated by one of the linguistic communities. For this reason, political institutions
at various levels are structured on the basis of the principles of parity (Hanf, 1999:
134) where a previously determined number of seats for each linguistic community,
negotiated by the representatives of these communities, is guaranteed. The nature of
bipolarity in the Belgian federation is exceptional and different from some other
federal states, Germany and Austria included. Belgian federal structures are
determined by horizontal bipolarity of the institutions representing the two main
linguistic communities rather than by vertical bipolarity between the Federation on
the one hand and the federated entities on the other, as it is the case, for example, in
Germany and Austria.
98
99
Since the process of federalisation in Belgium stands for transformation of a unitary
state into a federal one and for devolution of competences from the central
government to the regional and community level, Belgian federalism can be
characterised as centrifugal. Apart from specific types of federal institutional
structures described above, the centrifugal forces dominating the Belgian society have
had various other consequences such as the absence of political parties on the federal
level and of ‘Belgian’ press and broadcasting channels.
The basis of the German as well as the Austrian federations, on the contrary, is the
territorial principle. In spite of Germany’s relatively long federal history and regional
identities, the present borders of the German Länder are not drawn in function of
ethnic, religious or linguistic characteristics of their respective societies. Except for
the so-called Hansestädte – Hamburg and Bremen – and Bayern, the borders of the
German federated entities were artificially determined by the three Western Allies
after WW II (Beyme, 1996: 321). Moreover, the modern German federal system as
codified in the Basic Law was created after the Länder had already been established
as political and administrative units between 1945 and 1948. During this period the
Länder were legitimised as a result of elections held within their borders and
constitutions for each of them were written. The authorities of the Länder were
actively participating in the creation of the modern federal system. The German Basic
Law was drafted by the so-called Parliamentary Council composed of 65
representatives of the Länder Parliaments.
In contrast to the vast majority of German federated units, the Austrian Länder are
entities with a considerable degree of historical identity. However, the variations
between them are not determined by ethnic, linguistic or any other deeply rooted
distinctiveness. Thus, whereas the Belgian federal structure is based on territorial and
ethnic elements as well as on principles of personal federalism, Germany and Austria
are examples of territorial federalism.
99
100
3.1.6 Competence structures
The Belgian federal structure puts the emphasis on the autonomy of federal and
federated levels. Each order in the Belgian federation has the right to make as well as
to administer laws within the sphere of its (constitutional) competences. The Regions
and Communities enjoy a relatively high degree of legislative and administrative
autonomy and are given various possibilities to exercise autonomous policies on the
domestic level as well as in the fields of foreign relations.
In the German federation the division of competences is determined along functional
lines. This means that the federal level is held responsible predominantly for
legislation and the Länder - for administration.55 According to Article 83 of the Basic
Law, the Länder execute federal laws as matters of their own concern if not otherwise
provided or permitted by the Basic Law.56 As for the administrative functions of the
Bund (Articles 87-90 BL), these are rather limited and restricted to such fields as
foreign service, defence, federal waterways, airways or railways. Even in some of
these cases the Bund may by law delegate the power to administer federal laws to the
Länder whereby the Länder act as agents of the Federation. This type of power
allocation necessitates close co-operation and joint decision making between the two
levels as the federal government is dependent on the consent of the Länder via the
Bundesrat among others in those cases where the Länder have to administer federal
laws.57
55 It should be noted that this type of competence structure has roots in the German federal history: functional division of competences between the Federation and its constituent entities was characteristic for the power structure of the German Empire created in 1871. Although these and other historical experiences did not have a direct impact on constitutional debates after WW II, a certain degree of similarity can be detected between Germany’s federal history and the modern federal system created in 1949 (for more details see Münch, 1999: 3-7). 56 Hereby Articles 84 and 85 of the Basic Law differentiate between administrative tasks that are fulfilled by the Länder as matters of their own concern, and matters where the Länder execute federal laws as agents of the Federation. 57 Apart from joint decision making by federal and federated levels, in the German federal system joint decisions by the government and opposition parties are often necessitated too. This may happen in case the opposition parties gain a majority in the Bundesrat. If such a power constellation is established in the Bundestag and the Bundesrat – it happened on several occasions in the German federal history since 1949, for example from 1972 till 1982 and from 1996 till 1998 (König, 1999: 32) - the opposition theoretically has the possibility to block those laws of the government that require the consent by the upper chamber. After the change of government in Sachsen-Anhalt in the Spring of 2002 the two opposition parties – Christian-Democrats (CDU) and Liberals (FDP) together - had 35 out of 69 votes in the Bundesrat.
100
101
As for Austria, functional division of competences plays an essential role here as well,
and is one of the basic characteristics of the Austrian federal system. It has been
frequently argued by scholars and practitioners of federalism that the function of the
Länder in Austria is reduced to that of entities responsible for the administration of
federal legislation. This institutional position of the Austrian federated entities can be
explained historically, as we have seen in the historical overview made above (for
further details see section 3.2.3).
101
102
103
3.2 Various types of competences and division of legislative and
administrative prerogatives
With regard to the constitutional division of legislative and administrative
competences on the domestic level there are a number of differences between
Belgium, Germany and Austria. The analysis of types of constitutional power
allocation in fields of legislation and administration is essential to our study the aim of
which is to examine federal structures established as a consequence of foreign and
European policies of federated entities. The type of division of legislative and
administrative competences on the domestic arena58 determines the extent to which
the levels are involved in the processes of external and European policy making. The
present section analyses the internal competence structures of the three federations
from a comparative perspective. The division of prerogatives on the external level, i.e.
in fields of foreign and European policies, will be analysed in those chapters of the
study, which deal with Belgian, German and Austrian federated entities’ external and
European relations.
Different types of distribution of legislative and administrative competences between
federal and federated orders lead to different types of federal relationship structures.
Based on their main characteristics, table 3 distinguishes between various
competences and their consequences for types of relationship structures between
federal and federated authorities.
Whereas exclusive competences generally encourage the pursuit of autonomous
policies by various entities, shared competences normally necessitate a certain degree
of joint action in order to co-ordinate policies and avoid contradictory legislation at
various levels. Hereby, the type of relationship established as a consequence of shared
competences depends on institutional structures in which joint action by various
orders is co-ordinated. As for concurrent competences and framework legislation,
they potentially lead to a superior position of the federal level and may even lead to
58 With regard to the division of competences on the internal level, we can distinguish between two aspects, quantitative and qualitative. The quantitative aspect refers to the number of competences that fall under the prerogative of each level, whereas the qualitative aspect refers to the types of competences the levels are held responsible for.
103
104
hierarchical relations between various orders expressed in a hierarchy of legal norms.
According to Ronald Watts, in fields of concurrent competences the federal
government has a ‘potential authority in a particular field until it becomes a matter of
federal importance’ (Watts, 1999a: 38).
Table 3. Types of competences and their consequences
Exclusive Competences
Shared Competences
Concurrent Competences
Framework Legislation
FEATURES
Each level of governance has an exclusive legislative and administrative responsibility for a field of competence and regulates it alone.
Several levels share legislative and administrative competences in such a way that each of them can regulate certain subject matters but not the field of competence as a whole.
Federated entities can legislate as long as the Federation has not made use of its legislative competences.
Federal laws provide the framework that needs to be filled in and concretised by legislation of federated entities. Thus, both levels can legislate and administer in the same policy field.
CONSEQUENCES
Make independent policies by single entities possible. A choice for this type of competence may be helpful to avoid conflicts between various levels, especially in federations based on ethnic principles.
Joint action becomes necessary in order to avoid contradictory regulations in the same policy field. As a result inter-level co-ordination and co-operation is promoted.
Leads to hierarchical ties between levels in as far as the federal law, once enacted, excludes legislation by federated entities.
Leads to hierarchical and dependency ties between levels, as federated entities have to adapt their legislation to that of the federal level.
Source: the author
It should be noted that this table deals with ideal types of competences. Each type of
competence mentioned above may lead to different results in different federal
institutional settings. This means that the consequences of these competences on
federal relationship structures in particular federations vary, and depend on broader
institutional settings and political contexts that co-determine the particular modes of
104
105
inter-level co-ordination. For example, federal practice in different countries shows
that even the exclusive attribution of certain competences to separate orders can not
completely preclude joint policies by federal and federated levels in these fields of
competence.
3.2.1 Belgium
In the Belgian federation, which is to a large extent based on the autonomy of its
component units, the division of competences between the Federation and the
federated entities is ‘quasi water-tight’ (Jans and Tombeur, 2000: 143). One of the
essential and distinguishing characteristics of the Belgian federal system is the
equality of federal and federated orders on the legal level. This means that federal
laws can not overrule legislative acts of federated entities, the so-called decrees (the
legislative acts of the Brussels Capital Region are called ordonances and their legal
status is different from that of decrees).59 Nor can decisions by the federal government
overrule those made by the governments of federated entities. This principle of legal
equality applies to almost every policy field (see below). In order to settle conflicts of
jurisdiction between Regions, Communities and the federal government, a Court of
Arbitration was created in 1984.60
In the Belgian system of distribution of competences we can distinguish between
exclusive, shared, parallel, concurrent and framework prerogatives. The majority of
prerogatives are exclusive, whereby the federated entities, Regions and Communities
together, avail of a higher number of exclusive prerogatives than the federal level.
The competences of the latter have been limited as a result of successive federal
59 The legislative acts of the Region of Brussels were given the status of ordonances on the urge of the Flemish who did not agree to acknowledge Brussels as a region equal to the other Belgian federated entities. The difference between decrees and ordonances is that in contrast to decrees, ordonances can be declared void by the Belgian federal government. In practice such a move from the side of the federal government would lead to conflicts within the government itself since it is composed of an equal number of ministers from both linguistic communities. Thus, the fact that ordonances and decrees do not have an equal status has a symbolical meaning (Deschouwer, 2000: 107). 60 Apart from this mechanism of judicial control by the Court of Arbitration, preventive control over legal acts of federal and federated entities is exercised by the State Council, which examines draft laws, decrees and ordonances with regard to their compatibility with the domestic competence structure.
105
106
reforms, which lead to the devolution of more and more powers to Regions and
Communities.
Federal prerogatives comprise such fields of competence as defence, justice, internal
security and social security services. According to the Belgian Constitution, residual
competences belong to the federal level. This means that the competences of
Communities and Regions are listed in the Constitution, whereas the federal level is
held responsible for the remaining competences. Such a constitutional power
allocation is due to the process of devolution in Belgium, which made it necessary to
constitutionally regulate the responsibilities of federated entities. Although Article 35
BC states that the federal authorities are responsible for competences listed in the
Constitution and the federated entities retain the remaining competences, by 2003 this
article had not entered legal force. It will happen after a number of changes are made
to the constitutional provisions regulating the competence structure.
The Belgian communities are exclusively responsible for culture, education and
language policies, personalised matters such as welfare (assistance to individuals) and
preventive health care, and control on local authorities (public centres for assistance).
Scientific research as well as international relations in these policy fields are also
regulated exclusively by the Communities (Articles 127, 128, 129 BC). Exclusive
regional competences comprise territorialised matters such as urban and country
planning, environment, public housing, economy including energy, employment,
infrastructure, urban and regional transport, control on local authorities (towns and
provinces), foreign trade, as well as scientific research and foreign relations in these
fields (Articles 39, 134 BC; Deschouwer, 2000: 104-105; Hanf, 1999: 108-112;
Brassine, 1994: 48-60; Leton, 2001b: 108-110). The exclusion of the federal level
from the spheres of exclusive competence of the federated units serves the aim to
draw a clear line of division between competences attributed to various levels. The
last state reform in 2001 transferred a number of competences from the federal to the
regional level such as foreign trade, fishery, some prerogatives in the field of
development co-operation and of agriculture. Apart from that since 2001 the Belgian
Regions became responsible for legislation on elections of city mayors and on
participation of non-EU foreign citizens in local elections. The new Belgian
106
107
government constituted after the parliamentary elections of 2003 agreed to further
decentralise competences (for details see section 3.1.1).
As far as shared competences are concerned, these may be shared either on the
vertical level between the two orders - federal and federated – or on the horizontal
level among the federated entities. ‘Shared’ in this context means that certain subject
matters, which fall within the same field of competence, are allocated to different
entities. The federal level shares competences with Regions among others in fields of
environment, water policies, nature protection, economics, energy, employment and
public transport. It also shares certain competences with Communities. The federal
government remains responsible for federal cultural institutions and scientific
establishments as well as for some subject matters in the field of education such as
certain conditions with regard to diplomas and regulations of rather general character,
for example laws on the duration of school education (Leton, 2001b: 108).
The list of shared competences is relatively long. For example, preventive health care
is a community matter, while health care insurance is federal. Unemployment
insurance is a federal competence, but the placement of unemployed people is
regional, while professional training is a community matter. Communities are
responsible for education, but the recognition of professional qualifications is a
federal prerogative and the organisation of school transport is a regional competence.
Transportation policy is a regional prerogative, with the exception of railway systems,
which have remained a federal competence. However, personal access programmes
for people with reduced mobility are essentially a community matter (Poirier, 2002:
28).61 As the federated entities’ competences originally belonged to the central state
and were gradually devolved to Regions and Communities, some authors refer to
competences shared by the federal and federated levels as reserved competences of
the Federation in fields of community and regional responsibility (Brassine, 2001: 97-
98; Hanf, 1999: 106).
61 The list of shared competences can be extended. For example, tourism is a community competence, but the Regions are responsible for the expansion help for enterprises and establishment conditions.The regulation of the arrival, residence, settlement and expulsion of foreign citizens is a federal prerogative, whereas the reception and integration of immigrants is a community competence.
107
108
The analysis of exclusive and shared competences shows that the vast majority of
competences are shared between federal and federated authorities, whereby certain
subject matters within the same field of competence are regulated exclusively by
Communities, Regions or the federal government. In fields of their exclusive
prerogatives each level is responsible for legislation as well as administration.
In fields of parallel competences entities at various levels act parallel to each other.
To parallel competences belong foreign commerce, international relations and
scientific research. For example, federal and federated entities conduct scientific
research separately in their fields of competence. The same principle applies to the
field of international relations, which will be analysed in detail in chapter 4.1.
Concurrent competences, where federal laws prevail over regional or community laws
are reduced to the minimum in Belgium and are practically restricted to only one
policy field – that of taxation. Regions and Communities may introduce and collect
new taxes as long as the federal government has not done so (Deschouwer, 2000:
110). Federal legislation, once enacted, overrules the regional and community
decrees. The principle of legal equality of levels mentioned above does not apply in
this case. Thus, the field of taxation is an exception to the rule, according to which the
legal acts of federal and federated orders have an equal status. Framework legislation
also exists in the Belgian federation, but the number of policy fields, in which it
applies, is limited. In this case the federal level legislates on general principles, which
have to be respected by laws of federated entities. To such prerogatives belong, for
example, public markets, consumer protection and some subject matters in the field of
economy (for more examples see Brassine, 2001: 97).
3.2.2 Germany
According to Article 30 of the Basic Law the Länder are held responsible for all state
prerogatives and tasks unless otherwise regulated by the Constitution.62 Article 70 BL
62 In German, ‘Die Ausübung der staatlichen Befugnisse und die Erfüllung der staatlichen Aufgaben ist die Sache der Länder, soweit dieses Grundgesetz keine andere Regelung trifft oder zuläßt’ (Article 30 BL).
108
109
further concretises Article 30 BL and states that the Länder have legislative
competences unless the Constitution does not attribute these competences to the
Federation. In the German federal structure the majority of legislative competences
indeed belong to the prerogative of the Federation, whereas the Länder have a limited
number of residual exclusive legislative competences. This means that, contrary to the
Belgian Constitution, the German Basic Law lists only the legislative competences of
the Federation while the Länder retain under their prerogative those remaining
competences, which are not explicitly listed in the Constitution. The same principle
applies in Austria.
The constitutional competence structure in Germany is such that the prerogatives of
federated entities are restricted to cultural and educational matters including radio and
press, theatres and museums, youth education and school education, municipal law,
creation of administrative structures of the Länder, police and the constitutional law
of the Länder (for example Constitutions and electoral laws of the Länder).63 In fields
of framework legislation and concurrent competences the Länder also have the right
to legislate but their right is limited in the following way: in the case of framework
legislation the Bund creates the framework, which has to be filled in and concretised
by the Länder. Such examples are framework federal laws on high education, on
nature protection or on regulations regarding civil servants (Laufer and Münch, 1997:
101).
As far as concurrent competences are concerned, and these cover a large number of
policy fields in the German political system, the Länder have the right to make use of
their legislative powers as long as federal laws have not yet regulated the field
(Article 72, 1 BL). The Federation in Germany has been making an extensive use of
its concurrent competences and the number of policy fields regulated by concurrent
federal laws is relatively high. Consequently, very few prerogatives have been left
under the responsibility of the Länder.
63 In fields of exclusive competences of the Länder the so-called model draft laws (Mustergesetzentwürfe), developed together by administrative authorities of various Länder are used relatively often. These draft laws function as a model for the Länder, which means that in certain fields that should normally be regulated exclusively by the Länder and where variations among the federated
109
110
The existence of concurrent competences in the German federation has had a
centralising impact. The so-called necessity clause (Erforderlichkeitsklausel) of
Article 72, 2 BL allows the federal level to make use of concurrent competences
where it can justify this on the basis of the necessity of creating equivalent living
conditions (‘Herstellung gleichwertiger Lebensverhältnisse’) and of maintaining legal
and economic unity throughout the territory of the Federation.64 In the history of post
WW II Germany, especially in the first decades following the war, the creation of
unified economic and social conditions has played a prominent role. The meaning
attached to the uniformity of living conditions has also been reflected in the design of
the German Financial Constitution. The special feature of the German fiscal
relationships is illustrated by the existence of horizontal (from financially strong to
financially weak Länder) as well as vertical (from the Federation to the Länder)
financial flows (Finanzausgleich) with the aim to equalise living standards in the
Federation. In fact, to create equal living conditions has played a much more essential
role in the German federal history since 1949 than to preserve federal diversity.
The constitutional justification for the use of concurrent competences by the federal
level (Article 72 BL) has been repeatedly put forward by federal authorities in order
to be able to legislate in fields of concurrent competence. The German Länder have
accepted the legislative behaviour of the Bund, which resulted in a situation where the
broadest majority of concurrent competences are regulated by federal laws. Such a
centralising development in the German federal practice became possible in the first
place because the existence of German federated entities is based on the territorial
principle, and not on ethnic, linguistic or other identity differences, as it is the case in
Belgium. As a consequence, there is little acceptance of inter-Länder legal and
economic inequalities among the German population. The acceptance of hierarchy
between various levels is greater than in Belgium, where the federal structure is
designed to preclude hierarchical relationships between various linguistic
communities. The German Länder have been following the federal policy aimed at
entities are legally allowed, several or all the Länder have similar or even identical regulations. Such measures limit legal diversity in Germany. 64 Also Article 106 of the Basic Law, which deals with the distribution of tax revenues between the Federation and the Länder, explicitly emphasises the need to maintain the uniformity of living conditions (Einheitlichkeit der Lebensverhältnisse) throughout the entire territory of the federal state. The degree to which this constitutional principle can be realistic in the post-reunification Germany,
110
111
equalisation of living conditions and have gradually exchanged some of their
legislative competences for the right of participation and consent through the
Bundesrat in the federal legislative process. In this way the German federal structure
has developed to the so-called federalism based on participation (in the German
literature referred to as ‘Beteiligungsföderalismus’ (Böckenförde, 1980: 185).
The existence of concurrent competences is reflected at the legal level in the
constitutional principle Bundesrecht bricht Landesrecht (Article 31 BL), according to
which a federal law overrules a Länder law once being made a concurrent power.
Länder legislation becomes obsolete as soon as the Bund enacts a new law on the
same subject. In this sense, there exists no legal equality of federal and federated laws
in Germany. If a federal and a Länder law regulating the same subject contradict each
other, the former overrules the latter. The principle Bundesrecht bricht Landesrecht is
related to the principle of constitutional homogeneity, which is codified in Article 28,
1 BL. Moreover, Article 37 BL even foresees a possibility of the so-called federal
compulsion (Bundeszwang) in order to guarantee the constitutional homogeneity and
the superiority of federal rules over that of the Länder.65 This constitutional option has
never been applied in practice yet (Laufer and Münch, 1997: 90).
3.2.3 Austria
The division of legislative and administrative competences in Austria resembles the
German competence structure rather than the Belgian one in the sense that in Austria
competences are divided between the federal level and the Länder along functional
lines. As we have mentioned above, the federal government is held responsible for the
majority of legislative competences whereas the function of the Länder is practically
reduced to the administration of federal laws. It should be noted that in the Austrian
system, the competence to decide on the distribution of competences between the
Bund and the Länder, the so-called Kompetenzkompetenz, belongs to the Federation.
where economic and social disparities as well as differences in Länder interests grew to a considerable extent, has been questioned by scholars (see for example Jeffery, 1999b: 330). 65 According to Article 37 BL, if a Land does not follow federal obligations as laid down in the Constitution or in a federal law, the federal government can, with the consent of the Bundesrat, take the
111
112
This means that the federal government has the right to regulate the question of
distribution of competences by means of a constitutional law. The consent of the
Bundesrat (absolute veto right) is required in case such constitutional laws limit the
competences of the Länder.
As far as the functional aspect of the competence structure is concerned, the Austrian
Constitution (B-VG) distinguishes between four types of competences (Articles 10 to
12 and Article 15 B-VG). First, legislative as well as administrative prerogatives are
attributed exclusively to the Federation (Article 10 B-VG). To such competences
belong among others foreign relations, passport issues, border control, civil law,
security police, transport, postal service, forest law, water law, labour law, social
insurance, health care and military issues. It has to be noted that in Austria, the
jurisdiction is not federalised, which means that the judicial power is concentrated in
the hands of the Federation (according to Article 82, 1 B-VG, all judicial power is
exercised by the Federation (‘Alle Gerichtsbarkeit geht vom Bunde aus’)). Second, the
Bund legislates whereas the Länder are responsible for the administration of these
laws (Article 11, 1 and 3 B-VG). To such prerogatives belong, for example, issues of
citizenship, professional chambers (Berufskammern), street police and some subject
matters related to interior shipping.
Third, the federal level is held responsible for legislation on general principles
whereby federal laws have to be concretised by the laws of the Länder. Here as well
the Länder retain the administrative function (Article 12 B-VG). This type of division
of competences between the Federation and the Länder is comparable with the
German framework legislation, although it is not termed as such in the Austrian
Constitution. In Austria this type of legislation is used to regulate questions related
with social aid, maternity and youth services, hospitals, land reform, electricity and
protection of plants. Fourth, both legislation and administration are under the
exclusive prerogative of the Länder (Article 15 B-VG). However, the number of
competences attributed exclusively to the Austrian federated entities is relatively
restricted. Exclusive competences of the Länder comprise, among others, building
necessary measures based on its competence of federal compulsion (Bundeszwang) to force the respective Land to fulfil its obligations.
112
113
law, certain subject matters in the field of nature and landscape protection, hunting
and fishery, local security and police, sport, and kinder gardens.
The four types of competences mentioned above belong to the so-called general
distribution of competences (allgemeine Kompetenzverteilung). Separate regulations
exist with regard to the distribution of competences in fields of finance and tax
revenue, school education, and administration of private economy. It has to be noted
that contrary to Belgium and Germany, school education in Austria is a shared
competence between the Federation and the Länder whereas the field of higher
education is exclusively regulated by the Bund (Luther, 1991: 816-817; Schäffer,
1993: 178-181; Walter and Mayer, 1996: 122-125).
In the last three categories of the so-called general distribution of competences the
Länder are kept responsible for administration without any involvement from the side
of the Federation. Judicial control is exercised ex-post by the Federal Administrative
Court (Verwaltungsgerichtshof) and the Federal Constitutional Court
(Verfassungsgerichtshof). In a number of fields other than those related to the general
distribution of competences, the authorities of the Länder function as organs of the
Federation and are subordinated to the supervision by federal authorities. This type of
administration is called indirect federal administration (mittelbare
Bundesverwaltung). In case the Länder do not follow federal instructions while being
in charge of indirect federal administration, the federal government has the right to
file a lawsuit against the authorities of the Länder.
Another category in the Austrian system of division of competences is the so-called
requirement competence (Bedarfskompetenz) (Article 10, 1 (§ 12 and 15), Article 11,
1 (§ 7) and Article 11, 2 and 5). In the case of Bedarfskompetenz that exists in the
Austrian legal system since 1925, the Bund has the right to legislate when it sees the
need for a unified regulation for the entire federal state. Although the Austrian
Constitution does not mention the word ‘concurrent’, this type of competence is very
similar with what is called concurrent competences according to Article 72 of the
German Basic Law. In Austria, like Germany, the federal level has made an extensive
use of the requirement competence.
113
114
In contrast to Germany, the principle Bundesrecht bricht Landesrecht does not exist
in the Austrian federation. However, the federal level is involved in the legislative
process of the Länder and has to be consulted whenever the federated entities are
drafting a new law. The consultation procedure between the Federation and the
Länder takes place via the Federal Chancellery to which all Länder draft laws have to
be sent. In order to guarantee and maintain a sufficient degree of unity and harmony
in the Austrian legal system, the Constitution granted the federal government a simple
veto right (Einspruchsrecht) with regard to the broad majority of Länder laws (Article
98 B-VG) and an absolute veto right (Zustimmungsrecht) with regard to a limited
number of legislative acts of the Länder (for example Articles 15, 10; 97, 2; 116, 3 B-
VG). A Land Parliament can overrule a simple veto of the federal government by
means of a new vote, the so-called Beharrungsbeschluß. In the case of disagreement
between the orders with regard to the legislation of the Länder, the federal
government can apply to the Federal Constitutional Court (Verfassungsgerichtshof).66
The Länder also have the right to apply to the Constitutional Court in order to settle
competence conflicts with the Federation related to federal legislation. In this sense,
there is a parity between the Federation and the Länder on the formalised level as
each order has the right to veto the bills of the other and in the case of a conflict to
apply to the Federal Constitutional Court (Schäffer, 1993: 185).67
66 The Austrian Constitutional Court is consulted to settle the so-called competence quarrels (Kompetenzstreit) between various orders in the federal state. It has the competence to examine the legislative acts of the Bund and the Länder. Hereby, the Constitutional Court has the right to declare that federal or federated laws contradict the Constitution (verfassungswidrig erklären). In contrast to the German Federal Constitutional Court, it can not examine the Constitution. 67 As has been mentioned above (see section 3.1.3), the division of competences in the Spanish State of Autonomies is highly asymmetrical and the decentralised entities avail of various degrees of autonomy. The competences of the Autonomous Communities are regulated partly in Article 148, 1 of the Spanish Constitution and partly in their Autonomy Statutes. As for the competences of the central government, these are listed in Article 149 SC. The ACs have the right to overtake the remaining residual competences in their Statutes. In order to create a certain degree of symmetry, in 1981 the two big Spanish parties, Socialists (PSOE) and Christian-Democrats (UCD) concluded the so-called Autonomy Agreements, according to which the decentralisation process was meant to embrace the entire territory of Spain. Consequently, all Autonomous Communities were supposed to overtake under their responsibility the competences listed in Article 148, 1 of the Constitution (Neunreither, 2001: 66). Within the Spanish competence structure we can identify four main types of competences: exclusive, equal, shared and concurrent. In a number of competences such as culture, education, sport, tourism and social services (except social security) some subject matters are regulated exclusively by the Autonomous Communities. However, in fields of some of these competences, such as culture, education and research, both levels, the central government as well as the Autonomous Communities, equally have the right to make their own laws. Hence, these competences are referred to as equal competences. For example, a number of Autonomous Communities are entitled to organise education systems in their own language. Parallel to that there is the state education system. The vast majority of competences in Spain are shared or concurrent. In a number of fields such as labour law, economic development of autonomous entities, civil law, health care, civil security and environment protection,
114
115
To summarise, with regard to the division of legislative and administrative
competences the German and Austrian federal systems are different from the Belgian
one. In Germany and Austria competences are divided along functional lines. The
Länder in both federations avail of few exclusive legislative competences and are
primarily responsible for the administration of not only their own but also of a large
number of federal laws. In Belgium, in fields of its competence each level is held
responsible for legislative as well as administrative functions.
the central state is held responsible for framework legislation, whereas the Autonomous Communities have to concretise and administer these laws. These competences, which are similar to what is called framework legislation in Germany, are referred to as shared competences in Spain (Neunreither, 2001: 67). According to the Constitution (Article 149, 3 SC), the legislation by the central state has a priority in those fields, which have not yet been overtaken as exclusive competences by the Autonomous Communities (Hanf, 1999: 149). These prerogatives are referred to as concurrent competences in the Spanish context. The superior position of the central government is strengthened by the regulations of Articles 150 and 155 SC, according to which for reasons of general interest under certain circumstances the central state may intrude into the competences of the ACs. Apart from that it remains under the prerogative of the central state to guarantee the economic unity and the unity of living standards. The impact of this regulation can be viewed as similar to the one existing in the German federation (see section 3.2.2). To summarise, in spite of wide ranging legislative competences of (some) Autonomous Communities, the central state has a superior position in the domestic competence structure. The Spanish system of division of legislative and administrative competences is far more centralised than the Belgian one (on the distribution of legislative and administrative competences in Spain see among others Neunreither, 2001: 59-75; Hanf, 1999: 149-156; Agranoff, 1999b: 97-103).
115
116
Part 4
Comparative Analysis of
Belgium, Germany and Austria
118
As outlined in the introduction, this study analyses relationship structures between
federal and federated orders in Belgium, Germany and Austria from a comparative
perspective and is aimed at answering the following research questions. First, what is
the impact of European integration on federal relationships established as a
consequence of the federated entities’ foreign and European policies in the EU
framework? And second, in this respect does Europeanisation result in similar
outcomes in federal states, i.e. a certain type of common federal model?
To answer these questions, the present part of the dissertation is dedicated to the
comparative analysis of the three case studies and examines federal relationship
structures in Belgium, Germany and Austria from the point of view of hierarchy and
interdependence. This part consists of two chapters. Chapter 4.1 concentrates on the
analysis of federal relationship structures established as a consequence of external
relations of federated entities within the European Union framework, including treaty
making activities and cross-border and inter-regional policies. Chapter 4.2 examines
relationship structures between federal and federated orders established as a
consequence of federated entities’ involvement in formalised and non-formalised
mechanisms created in federal states to co-ordinate and then represent the positions of
the latter on the EU level.
118
119
4.1 Foreign relations of federated entities in the EU framework
This chapter analyses foreign relations of federated entities, defined as bilateral and
multilateral relations conducted by these entities beyond the borders of the respective
member states. As our study analyses Europeanisation of federal relationships in the
field of federated entities’ foreign relations, for the purpose of the study the analysis
of such relations is geographically restricted to the EU framework. This means that
we will examine relations of federated units to EU member states, to regional and
federated entities of these states, and to cross-border and inter-regional bodies
established in the geographical framework of the EU. Relations to and strategies
followed within regional institutions and organisations, such as the Committee of the
Regions or the European Assembly of Regions, are not examined in this study. We
further restrict the focus of the analysis to foreign relations based on some form of
written documents. Such documents may be either legally binding, such as
international treaties or contracts under public or private law, or may be based on
various types of written documents that are legally not binding for the parties
involved, such as common declarations, position papers or statutes. Thus, we also
exclude foreign contacts of punctual nature, such as exchange of official visits or
personal contacts between authorities, from the scope of our analysis.
While analysing Europeanisation of federal relationship structures in the field of
federated entities’ foreign relations we will differentiate between two types of foreign
political activities undertaken by component units of federations. Contrary to the
method often used in this field, the criterion for differentiation is not whether such
relations are based on legally binding agreements - including agreements under terms
of international as well as domestic law - or on external contacts of legally non-
binding nature. Instead, we distinguish between two types of foreign political
activities of federated entities based on the role played by the federal government in
these relations via formalised and institutionalised mechanisms. Such a differentiation
allows us to put an emphasis on relationship structures between federal and federated
orders in the field of federated entities’ foreign relations.68
68 While analysing legal problems related to the conduct of foreign relations by regional entities on the example of the German Länder, Matthias Niedobitek differentiates between two types of foreign relations. The first type is called autonomous foreign relations (autonome Außenbeziehungen). These
119
120
On the one hand there are foreign relations of federated entities that take place
according to federal principles and legally determine a certain degree of involvement
of federal authorities in these activities. Such relations are based on legal regulations
of federal constitutions - sometimes concretised by laws and intergovernmental
agreements - with regard to the distribution of competences between federal and
federated orders in the field of foreign policy. Whereas federalism in principle allows
for a certain degree of sharing of foreign policy competences between orders,
international law regards federal states as single actors on the foreign policy arena.
Treating all sovereign states as single actors irrespective of their domestic structures,
international law puts them in a superior position compared to federated states, which
are non-sovereign but posses certain features of statehood such as flags, constitutions,
and legislative, executive and judicial tiers of government with exclusive powers.
Federal constitutions respect the principles of international law with regard to
indivisibility of external sovereignty. However, while fully respecting these
principles, federal constitutions attribute certain foreign policy competences, such as
the power to conclude treaties under terms of international law, to federated entities.
In order to guarantee unity and coherence of foreign political positions of federal
states, constitutions of these states make federal involvement in federated entities’
foreign relations, conducted under terms of international law, indispensable. The
combination of principles of federalism and international law finds thus a reflection in
federal constitutions. The latter normally include various mechanisms of supervision
and control of foreign relations of component units by federal authorities. This results
in a certain type of hierarchy between sovereign (federal) and non-sovereign
(federated) entities in the field of foreign relations.
relations are initiated by the Länder and the latter are responsible for their conduct and organisation. Autonomous relations may be developed within various geographical frameworks, have various intensities and may be based on various legal documents. Such relations may be conducted under terms of international, community or domestic law, or may be legally non-binding. Niedobitek calls the second type of external activities heteronomous foreign relations (heteronome Außenbeziehungen). Such relations are developed within legal structures that are defined by third parties and are in the first place determined by a previously established legal framework. Niedobitek gives three examples of heteronomous foreign relations of the Länder. First, he refers to relations developed by the federated entities in the framework of treaties concluded between Germany and other states that explicitly empower the Länder to undertake foreign political initiatives. Second, he names policies of representatives of the Länder in the Committee of the Regions. And third, he refers to the participation
120
121
Taking these considerations into account, we can state that foreign relations of
federated entities based on principles codified in federal constitutions potentially lead
to the establishment of federal structures characterised by various degrees of
hierarchy in favour of the federal level. Since such relations are constitutionally
codified and mainly developed on the basis of legally binding regulations, foreign
relations of federated entities guided by federal principles can be defined as
formalised. The conduct of these relations by federated entities is preceded and/or
accompanied by interactions between federal and federated levels within various
institutionalised mechanisms. As we mentioned above, the latter normally serve the
purpose to exercise a certain level of control on federated entities’ external activities
by federal governments. Further we will refer to such relations as foreign relations
based on federal principles.
On the other hand there are external relations conducted by federated units according
to the principles characteristic for multi-level governance. This means that federated
entities interact with third states, regions and trans-national establishments through
the creation of direct links to the latter without any formalised or institutionalised
involvement from the side of the federal government. These relations are not based on
constitutionally codified mechanisms of foreign policy making such as treaty making
powers, which potentially lead to the establishment of various degrees of hierarchy
between the levels. They may be conducted either under terms of domestic, i.e. public
or private, law or be based on legally non-binding agreements. Foreign relations of
federated entities according to the logic of multi-level governance take place on the
basis of direct, often non-formalised or weakly institutionalised, interactions between
federated entities and their partners. Consequently, contrary to foreign relations based
on federal principles, these are not characterised by the nesting of levels of authority
within each other in the framework of a relationship structure controlled and
supervised from above by federal authorities. Thus, whereas the first type of foreign
relations is normally formalised and supports various degrees of hierarchy between
levels, the second type of foreign relations takes place within both formalised and
non-formalised structures excluding federal governments from any legally regulated
influence on these relations.
of the federated entities in the Congress of Local and Regional Authorities created at the Council of Europe (Niedobitek, 2002: unpublished manuscript).
121
122
Such a differentiation between the two types of foreign activities of component
entities is only applicable to federal states. It is especially relevant for the case
selection of our study, which includes federal states where the constitutional
competence of foreign policy making is to some extent divided between federal and
federated orders. Foreign policies of most federated entities and of all non-federalised
entities - i.e. regional entities of unitary and decentralised states - are restricted to the
second type of foreign relations as these entities do not avail of constitutional foreign
policy competences that allow them to act under terms of international law.
The purpose of this chapter is to find out whether the process of European integration
has had an impact on foreign relations of Belgian, German and Austrian federated
entities conducted in the EU framework. Thus, it examines Europeanisation in the
field of federated entities’ foreign relations. A special emphasis is directed towards
the two types of foreign relations as explained in the preceding paragraphs. In so
doing, the following analysis aims to find out whether the impact of Europe in the
field of foreign relations based on federal principles is different from the impact on
foreign relations guided by the logic of multi-level governance.
4.1.1 A brief theoretical overview
Since our analysis deals with foreign relations of federated entities, in what follows
we will briefly refer to various concepts that have been used by scholars of federalism
and foreign relations to explain the growing emergence of foreign political activities
by non-sovereign entities in general.
Foreign policy of non-sovereign governments has been referred to in the literature on
the subject as paradiplomacy. The term paradiplomacy has been introduced in the
1980s and increasingly applied to external relations of regional entities since the
1990s. It is used to describe foreign political activities that are different from the
conventional diplomacy conducted by sovereign states and take place parallel to the
latter. As Michael Keating points out, paradiplomacy, in contrast to traditional
diplomacy, is not aimed at pursuing previously defined state or national interests in
the international arena. It is ‘more functionally specific and targeted, often
122
123
opportunistic and experimental’ (Keating, 1999b: 11; on the concept of
paradiplomacy and its relevance in federal states see Michelmann and Soldatos, 1990;
Hocking, 1993; Aldecoa and Keating, 1999; De Villiers, 1995; Brown and Fry, 1993).
The concept of paradiplomacy does not exclude that the conduct of external relations
by regional entities can be co-ordinated with central state authorities.
The emergence of paradiplomatic activities of non-sovereign governments has been
conditioned predominantly by globalisation and the rise of trans-national regimes,
especially regional trading areas. These processes have contributed to the erosion of
the traditional distinction between domestic and foreign affairs, and have transformed
the division of responsibilities between the state and regional entities (Keating, 1999b:
1). The concept of paradiplomacy regards hierarchy of political authority, in which
the central government functions as a gatekeeper between the state and its
international environment, as outdated.
Keating distinguishes between three reasons for the emergence of the phenomenon of
paradiplomacy: economic, political and cultural (Keating, 1999b: 3-6). Based on the
geographical scope of paradiplomatic activities and the types of actors participating in
the latter, three different forms of paradiplomacy can be identified. First, trans-border
regional paradiplomacy signifies formal and informal contacts across national borders
conditioned by geographic proximity and the need to solve common problems.
Second, trans-regional paradiplomacy denotes co-operative activities among regional
entities that are not neighbours but whose central governments are. Third, global
paradiplomacy refers to political contacts of regional entities among others to foreign
states, international organisations and private sector (Duchacek, 1990: 16-27; for a
slightly different typology of paradiplomatic activities see Soldatos, 1990: 37-38).
If paradiplomacy is used by regional governments with the aim to either prepare the
way to independence or acquire as much as possible international recognition of their
limited sovereignty, we can talk about protodiplomacy (Keating, 1999b: 13; Keating,
2002: 44). Such examples are strategies and policies followed by Quebec in Canada
under the government of Parti Québécois, the Basque Country in Spain and Flanders
in Belgium under the government of Luc Van den Brande from 1995 till 1999.
123
124
Robert Kaiser points out that while the concept of multi-level governance emerged in
the EU context, the concept of paradiplomacy has to be associated in the first place
with the North American scientific literature. However, Kaiser also emphasises that
paradiplomatic activities can be detected in the European context whereas multi-level
governance structures have emerged, up to a point, in North America too. In fact,
paradiplomatic activities are often related to certain multi-level interactions (Kaiser,
2002: 2). In the beginning of the 1990s Brian Hocking criticised the concept of
paradiplamacy for two reasons. According to Hocking, first, the concept served to
reinforce the distinction and to emphasise a conflict between central and regional
governments in the field of international relations, and second, it tended to treat non-
central governments (NCGs) as unitary actors neglecting the variety of interests and
strategies they embrace. Instead, Hocking introduced the concept of multi-layered
diplomacy and described it as a ‘densely textured web’, in which non-central
governments ‘are capable of performing a variety of roles at different points in the
negotiating process. In so doing, they may become opponents of national objectives;
but, equally, they can serve as allies and agents in the pursuit of those objectives’
(Hocking, 1993: 2-3).
4.1.2 Possibilities and instruments of foreign policy making by federated entities
Foreign relations of federated entities in general may evolve on the basis of different
types of instruments. These instruments may be divided in legally binding and non-
binding ones. As far as legally binding mechanisms are concerned, there are two main
types of such mechanisms, international treaties and contracts. Both can be classified
as agreements in the broader sense.69 The following table summarizes the differences
between these two instruments concerning their legal status and the nature of the
parties involved.
69 The Vienna Convention on the Law of Treaties of 1969 defines treaties as international agreements concluded in written form and governed by international law (Article 2, Vienna Convention). As for agreements governed by domestic, i.e. public or private law, in the English and French juridical literature these are referred to respectively as ‘contracts’ or ‘contrats’. In the German juridical literature there exists no such differentiation with regard to terminology (Niedobitek, 2001: 148).
124
125
Table 4. International treaty versus contract
International treaty Contract
Parties involved Concluded between subjects
of international law
Concluded between subjects
of domestic law
Legal status Subordinated to
international law
Subordinated to domestic
law
Source: the author
Thus, treaties and contracts are legally binding agreements concluded between two or
more parties. Whereas treaties are subordinated to international law and are concluded
between subjects of international law, contracts are concluded under terms of
domestic law, i.e. either public or private law, and parties to such agreements are
subjects of domestic law.70
Apart from legally binding instruments of foreign policy making, there are a variety
of possibilities to develop external relations on the basis of non-binding mechanisms
such as legally non-binding agreements, common declarations, working programs or
meetings on the political and administrative level. Such relations are often punctual
and irregular but in many instances may provide a solid basis for further development
of foreign relations within various formalised and institutionalised frameworks.
The extent to which federated entities make use of these methods depends in the first
place on the type of constitutional power allocation in the field of foreign relations
and varies from state to state. This means that the degree and characteristics of
federalisation in a state structure have consequences on external policy making. In
those federal polities, which grant their entities certain treaty making powers –
70 Often it is difficult to differentiate between treaties and contracts based on the text of the document in question or its title. A variety of terms such as treaty, agreement, contract, common declaration or memorandum are used in practice. These terms do not necessarily indicate the exact legal status of the agreement, whereby memorandum and common declaration are normally non-binding legal documents. Generally, if it is indicated in the text of an agreement that in the event of violation of contractual regulations by one of the parties, the latter are responsible to international courts, and the controversies should be settled by international law, then the agreement in question is an international treaty. If in the event of non-fulfilment of obligations of an agreement, a domestic court is held responsible to decide on the issue, such an agreement is a contract subordinated to domestic law.
125
126
examples are in this context Belgian Regions and Communities and German and
Austrian Länder - these entities may develop external ties either on the basis of a
treaty or a contract or various non-formalised instruments mentioned above. The
federated entities that do not possess legally guaranteed treaty making competences –
for example Canadian Provinces, US States or Mexican States - have to restrict
themselves to contracts regulated by domestic law or to various non-binding
mechanisms of foreign policy making. In general, these federated entities may only be
involved in the negotiation of bilateral or multilateral international treaties, when the
federal government signs treaties in fields of federated entities’ competence either
alone or in co-operation with these entities. Legally non-binding instruments of
foreign policy making such as declarations or common positions may be equally
utilised by all federated entities.
Apart from various possibilities of regional foreign policy making established by
internal regulations on the member state level, there are a number of European
initiatives. These are aimed at encouraging the development of cross-border and inter-
regional ties among regional entities of member states as well as among the latter and
their partners outside the EU. As far as the three federal member states under
consideration in this study are concerned, their federated entities possess substantial
constitutional rights in the field of foreign policy including varying degrees of treaty
making powers. At the same time these federated entities may act within various
formalised and non-formalised frameworks provided from the side of the EU.
Consequently, they can develop their external ties on the cross-border, inter-regional
and international levels making a full use of different legal instruments and
institutional options. Before turning to an extensive study of Belgian, German and
Austrian federated entities’ foreign relations, we will provide an overview of basic
principles and characteristics of treaty making activities and of cross-border and inter-
regional relations in general.
126
127
4.1.2.1 Treaty making
As we explained above, the distinction between sovereign and non-sovereign players
is constitutive of the international order and foreign policy competence, which takes
source in external sovereignty, normally remains in the hands of the federal
government. Under such circumstances, it is extremely difficult to design institutional
structures in the field of foreign relations that would preclude hierarchical ties
between the federal government and federated entities.
Whereas the competence to conduct foreign policy in the traditional meaning of the
term is based on external sovereignty, the power to conclude treaties under terms of
international law is related in the first place to international legal personality. To
possess the latter means to be a subject of international law. It is not necessary for an
entity to be sovereign and independent to enjoy the status of a subject of international
law while conducting diplomatic and paradiplomatic relations.
It is in the first place the national constitution that has to grant federated entities the
power to conclude international treaties (Van den Brande, 1998: 151; Alen and
Peeters, 1998: 135). The Vienna Convention on the Law of Treaties of 1969, which
regulates only treaty making by sovereign states (Article 1, Vienna Convention), does
not include any statement referring to treaty making powers of federated entities.
Nonetheless, the federated units in a number of federations such as Germany,
Belgium, Austria or Switzerland do have constitutional powers to conclude
international treaties in fields of their domestic legislative and administrative
prerogatives.71 Federated entities may only have treaty making powers if these are
71 The Spanish Constitution does not deal with the question of participation of the Autonomous Communities (ACs) in foreign policy making. Article 149, 1 of the Constitution attributes the responsibility for the field of international relations exclusively to the central state. However, the Statutes of Autonomy of the Basque Country, Catalonia, Andalucia, Navarre, Madrid, Murcia, Asturias and Aragon deal with the question of international and European treaties. According to these Statutes of Autonomy, while concluding international treaties, the central state has to inform the ACs in case the treaty affects their special interests. However, according to these statutes, the Autonomous Communities are not allowed to express their opinion with regard to the treaty in question. Only the Statute of Autonomy of the Canary Islands foresees a process of interaction between the AC and the central government during the treaty making procedure by the latter, and grants the Canary Islands the right to express its opinion concerning the treaty in question. The autonomy statutes of the remaining ACs - Galicia, Cantabria, La Rioja, Valencia, Castilla-La Mancha, Castilla-Leon, Extremadura and Balearic Islands - do not touch the subject of foreign and treaty making at all (Neunreither, 2001: 99-100).
127
128
explicitly attributed to them by federal constitutions or any other documents of
domestic law as an expression of their statehood on the international level. In case
treaty making powers of federated entities are not defined by documents of domestic
law, these federated entities do not have the right to conclude international treaties.
States that are sovereign under terms of international law, on the contrary,
automatically have the competence to conclude international treaties with entities that
have the corresponding right.
However, to regulate treaty making powers of federated entities by domestic law is a
necessary but not a sufficient condition for these entities to possess international legal
personality and to enter into treaty relations with foreign partners. As Luc Van den
Brande outlines, ‘the solution offered by domestic law has to be tested against the
attitude of the international community’ (Van den Brande, 1998: 151). This means
that the third states and/or international organisations should recognise the treaty
making power granted to federated entities under domestic law by concluding
international treaties with them.72 Thus, the exercise of treaty making powers by
federated units is to an equal extent dependent on both the will of the latter and of
third parties to conclude treaties. Federated entities can be considered as subjects of
international law only after they have concluded at least one international treaty and
thus have become bearers of certain rights and responsibilities under international
law. This means that by attributing treaty making powers to federated entities federal
constitutional or other legal documents only give them a potential status of a subject
of international law. Moreover, the international legal personality of the component
units of a federation is not absolute but only partial. This means that federated entities
have a status of a subject of international law only in relation with states or parts of
states that have acknowledged their international legal personality, for example by
concluding international treaties with them (Stern, 1995: 254).
We have outlined in the previous parts of the study that applied to federal and
federated levels, the criterion of external sovereignty puts them in unequal positions.
Foreign relations remain under the responsibility of the federal government, whereas
72 These two conditions – the regulation of treaty making competences by domestic law and the will of third states to enter in treaty relations with federated entities - were formulated by the International
128
129
the federated level does not possess the right to conduct external policies of its own
choice. International legal personality, on the contrary, makes it possible for federated
units to engage in external relations beyond the state border and to conclude treaties
under terms of international law either separately from or in co-operation with the
federal level. Thus, both levels may possess treaty making powers in their domestic
legislative and administrative spheres of competence. Hereby, the degree, to which
these powers are exclusive, shared or concurrent may vary from federation to
federation.
Foreign policy prerogatives of federated entities normally take their source in
legislative and administrative competences attributed to them on the domestic level.
The same can be said about the power to conclude treaties under terms of
international law. In this sense, internal distribution of competences, which is
normally a domestic matter, becomes relevant from the point of view of international
law. It influences the scope of federated units’ external activities and in this way also
has an impact on federal relationship structures established as a consequence of these
external activities.
We have emphasised above that, in theoretical terms, hierarchical as well as
interdependent relationship structures are generally determined by the division of
resources among the entities. The source of hierarchies and interdependences between
the levels in federal states is the division of competences between these levels. In the
field of foreign policy and specifically treaty making, the types of hierarchy and
interdependence derive from the division of legislative and administrative
competences on the domestic level.
4.1.2.2 Cross-border and inter-regional co-operation
The notion of inter-regional co-operation, as the term itself indicates, regards regional
entities as central actors. As for cross-border co-operation, it can be conducted
between states, regional or municipal entities across the border. For the purpose of
Law Commission during the preparatory discussions of the Vienna Convention on the Law of Treaties of 1969 (for more details see Van den Brande, 1998: 150-152; Alen and Peeters, 1998: 135-136)
129
130
this study, which examines foreign political activities of federated entities, we will
limit the focus of analysis to cross-border relations among federated units. Whereas
cross-border activities of sovereign states will be left out of the scope of analysis,
cross-border co-operation between municipal entities will be examined only in so far
as federated units are held responsible for setting the framework for the latter.
Regions in general can be defined as territorial entities constituting one of the levels
within a state structure. According to the Declaration on Regionalism in Europe made
by the Assembly of European Regions (ARE) in 1996,73 ‘the region is the territorial
body of public law established at the level immediately below that of the state and
endowed with political self-government’ (Article 1, Declaration on Regionalism).
According to this document, a region should have its own constitution, statute of
autonomy or other law, which forms part of the legislation of the state and determines
the organisational structure and the powers of the region (The Assembly of European
Regions, 1996: 4, available at http://www.are-regions-europe.org/COMMUN/A41bis.html ).
Another definition identifies four features that an entity should possess in order to be
characterised as a region. According to this definition, regions 1) are situated below
the central state and above the municipal level, 2) are relevant for the administrative
organisation of the state, 3) avail of sufficient financial resources and 4) have
democratically legitimised actors that take certain decisions (Eißel, Grasse, Paeschke
and Sänger, 1999: 23). In contrast to the previous definition of a region, this definition
does not focus on the criterion of political self-government.
It should be noted that region is a very broad term. It may encompass various types of
federated entities such as the Länder in Germany and Austria or Communities and
Regions in Belgium, but also other types of territorial units below the central state
level such as Autonomous Communities in Spain, Regions in Italy and France or
Provinces in the Netherlands. As our study deals only with federal states, the term
region will be used synonymously with federated entities.
73 This political declaration is legally not binding. Its aim is to serve for some regions as a guide containing basic standards and goals for regionalisation. The declaration deals with questions of institutional organisation and competences of regions, their financial resources, relationships between the state and the regions, regional involvement at the central level of the state, in trans-frontier co-operation, European Union policies and international relations.
130
131
Scientific literature on foreign relations of regional entities offers different definitions
and conceptualisations of cross-border and inter-regional co-operation. According to
Eißel, Grasse, Paeschke and Sänger, both cross-border and inter-regional co-operation
belong to the broader category of trans-national co-operation. The main difference
between these two types of co-operation lies in their geographical scope. Whereas
cross-border co-operation – as the word itself indicates – evolves among regional
entities that have a common border, inter-regional co-operation takes place among
non-neighbouring regions (Eißel, Grasse, Paeschke and Sänger, 1999: 24).
Sodupe chooses to use a different conceptualisation of these terms and refers to inter-
regional co-operation as any kinds of links established by regions of different states,
which may include cross-border as well as trans-regional co-operation (Sodupe, 1999:
80). In this case, cross-border co-operation is a type of inter-regional co-operation.
The following table provides an overview of types of inter-regional and cross-border
co-operation with examples. It classes these relations according to their geographical
scope (vertical axis in the table) and to the size of regional organisations in the
framework of which inter-regional and cross-border relations are conducted
(horizontal axis of the table).
Table 5. Types of inter-regional and cross-border co-operation
Geographical scope Small Large
Contiguous territories Cross-border regions (CBRs)(e.g. Euregions)
Working communities(e.g. Arge Alp)
Non-contiguous territories
Inter-regional co-operation(e.g. Four Motors for Europe)
Peak associations(e. g. Association of EuropeanBorder Regions)
Source: Perkmann, 1999: 658
Both cross-border and inter-regional co-operation are by definition bottom up
initiatives and normally serve the aim to establish and develop cultural, historical,
economic or political ties among various entities. Both types of co-operation are
conducted independently by regional entities without the involvement of central
131
132
governments. Thus, they do not lead to the establishment of institutionalised
relationships between levels of authority in a state.
However, inter-regional and cross-border relations of regional entities may in certain
instances result in the establishment of formalised and institutionalised relationship
structures between various orders on the domestic level. This happens first, in case
inter-regional and cross-border co-operation is based on international treaties and
necessitates a certain degree of interaction and co-ordination between the levels
within a state structure according to internally established (constitutional)
mechanisms. Second, formalised and institutionalised inter-level relationships may be
established if inter-regional and cross-border co-operation is initiated from above and
takes place within multi-level institutional structures, which envisage the involvement
of both central and regional levels in respective decision making procedures.
Although cross-border and inter-regional contacts are normally initiated from below,
in certain instances they might be encouraged from above as a type of assistance,
either financial or political, to regional entities. This kind of co-operation is normally
developed within the framework of broader institutional structures composed of
multiple levels. For example, the EU Commission’s initiative INTERREG, a financial
program in the framework of the European Regional Development Fund (ERDF), is
designed for internal and external borderlands of the EU. INTERREG is a policy
instrument of the European Union aimed at creating capacity within border regions
for bottom-up development. With regard to its financial resources as well as its
purpose, INTERREG is the largest initiative of the European Union aimed to promote
cross-border and inter-regional co-operation. It can be subdivided into INTERREG I,
which comprised the programming period from 1988 to 1993, INTERREG II between
1994 and 1999, and INTERREG III, which started in 2000 and will terminate in 2006.
In this study we will limit ourselves to the analysis of the currently running planing
period under INTERREG III, which has been designed to strengthen economic and
social cohesion in the EU. INTERREG III aims at achieving these goals by promoting
cross-border (strand A), trans-national (strand B) and inter-regional (strand C) co-
132
133
operation between regional and municipal entities.74 Cross-border co-operation
between neighbouring authorities under strand A has the aim to develop economic
and social centres through joint strategies on a cross-border scale and among other
things by establishing cross-border bodies, the so-called Euregions.75 Trans-national
co-operation under strand B among national, regional and local authorities is aimed at
promoting increased territorial integration across large groupings of European
regions.76 A special emphasis is put on territorial integration with candidate states for
EU membership and other neighbouring countries. As for inter-regional co-operation
under strand C of INTERREG III, its purpose is to improve the effectiveness of
policies and instruments for regional development and cohesion77 (Commission of the
European Communities C (2000) 1101 – EN).
74 It has to be mentioned that cross-border co-operation in the European space existed before the INTERREG initiative of the EU Commission and the first INTERREG program launched by the end of the 1980s. Brunn and Schmitt-Egner differentiate between four periods in the history of cross-border co-operation in Europe. The first period in the late 1950s and 1960s is characterised by the emergence of first cross-border co-operation bodies on the initiative of cross-border regions themselves. In this period cross-border co-operation was developed in the BENELUX area, in the German-Dutch border regions and in the Swiss-French-German border areas (on these cross-border initiatives see also Perkmann, 1999: 658). The second period started in the late 1950s and is characterised by the increasing involvement of the Council of Europe in topics and problems of cross-border co-operation. The first and the second periods partly overlap. The third period is characterised by the creation of regional organisations in Europe such as the Association of European Border Regions (AEBR) established in 1971 and the Assembly of European Regions (AER) created in 1985. The fourth phase of cross-border co-operation started in the late 1980s after the EU decided to regard the development of cross-border bodies as one of its priorities and launched Community initiatives of trans-European co-operation, called INTERREG (Brunn and Schmitt-Egner, 1998: 7-25). It has to be noted that the 1970s and 1980s were characterised by a growing importance of the regional dimension in the scientific as well as in the political spheres. The decentralising process started in a number of European states such as Belgium, Spain and Italy. The European Union integrated the regional dimension into its policies towards the member states. A number of cross-border and inter-regional organisations were created in the Alpine area and the area around the Lake of Konstanz. German, Austrian, Italian and Swiss territorial entities actively participated in these organisations. As a reaction to these developments, the meaning and implications of regionalism and regionalisation deserved a growing scientific interest. 75 Euregions created under strand A of INTERREG III are at the same time members in the Association of European Border Regions (AEBR) created in 1971. AEBR unites 57 members including cross-border regions, border regions and cross-border institutions (Schmitt-Egner, 2000: 260-263). 76 Within the framework of INTERREG III the following trans-regional programs have been developed: South West Europe (E, P, F, UK), Western Mediterranean (E, F, I, P, UK), Canarias/Madeira/Acores (E, P), Baltic Sea (DK, D, S, FIN), Northern Periphery (FIN, S, UK), North Sea (UK, B, NL, D, DK, S), Alpine Space (F, D, I, AUT), Espace Atlantique (UK, F, IRL, E, P), North West Europe (UK, IRL, F, B, NL, LUX, D), Cadses (Central Adriatic Danubian South Eastern European Space) (D, AUT, I, GR), Caribbean (F), Archimed (GR, I), Reunion (F). Eligible areas under these programs are states or parts of states such as regional or municipal entities (Commission of the European Union C (2000) 1101 – EN). 77 Four inter-regional programs have been developed under strand C of INTERREG III: North-West Europe, North-East Europe, Eastern Europe and Southern Europe. The territory eligible for these programs covers the entire geographical area of the European Union as well as the Central and Eastern European candidate countries. For a map of these four programs see http://www.interreg3c.net.
133
134
Euregions are institutionalised establishments under strand A of INTERREG III. They
involve local and regional entities having a common border as well as various societal
groupings.78 Their activities comprise a large number of policy fields such as
economy, traffic, technology transfer, environment, tourism, culture, sport and
education. Euregions can be defined as governance mechanisms that enhance the
exchange of information, organisational and economic resources between
neighbouring authorities across state borders and contribute to economic and social
development of less advantaged areas. Sodupe defined Euregions as groupings ‘of
municipal units belonging to states on either side of a frontier, which has a common
administrative structure’ (Sodupe, 1999: 80).
For regional entities, institutional set-ups of INTERREG and Euregions provide
additional governance mechanisms other than state structures to articulate and address
their needs and promote joint strategies. INTERREG-related governance mechanisms
include horizontal as well as vertical structures. Liesbet Hooghe and Gary Marks
distinguish between two types of governance. According to Hooghe and Marks, Type
I governance is characterised by multi-task, territorially mutually exclusive
jurisdictions in a relatively stable system with limited jurisdictional levels and a
limited number of units. Type II governance, on the contrary, is characterised by
specialised, territorially overlapping jurisdictions in a relatively flexible system with a
large number of jurisdictions. Type II governance emerges at the edges of Type I
governance, because the barriers to change the Type I governance are considerably
high. In this context Hooghe and Marks emphasise first, decisional barriers and costs
of institutional change and, second, territorial identities that make the change in
jurisdictions difficult (for further details on the two types of governance and their
interrelation see Hooghe and Marks, 2001b).
Hooghe and Marks identify inter-regional and cross-border co-operation as an
example of Type II governance. According to these authors, the emergence of Type II
governance can be detected above all in densely populated frontier regions of
78 For example, the Euregion Rhine-Waal at the Dutch-German border comprises 48 local communities, 3 regional authorities and 2 chambers of commerce. The Rhine-Waal joint organisation, which started to function on an informal basis in 1978, was formalised in 1991 as an entity under public law. The activities of this Euregion cover a wide range of policy fields such as economic
134
135
bordering states. Such frontier governance arrangements are usually functionally
specific, overlap with established regional jurisdictions and can be viewed as ad-hoc
problem-solving endeavours (Hooghe and Marks, 2001b: 10-11).
Although INTERREG programs are in the first place designed for regional and
municipal units, institutional structures created in the framework of INTERREG
involve authorities at various levels including local, district, regional, central state and
European level public administrations (Perkmann, 1999: 661). Operational programs
(OP) for the INTERREG are formulated by the participating member states for their
border areas and submitted to the EU Commission. European funds are granted to
member states and not directly to cross-border and inter-regional structures or
entities.79 Once the Commission approves INTERREG programs and funds are
allocated to member states, it is up to the latter to manage the programs. Central
governments often delegate the management and implementation of operational
programs to regional authorities and a large number of actors on various levels is
involved (Perkmann, 1999: 659).
The position of various authorities within cross-border and inter-regional structures
depends on the territorial organisation of the state. In Germany, the Länder are so
large that only narrow strips on their border areas are entitled to receive INTERREG
support. As a consequence, border municipalities and inter-municipal associations
play an important role in the functioning of cross-border entities. In those countries
where the regional entities are small enough to cover NUTS III area,80 they pursue
cross-border co-operation themselves. The role of regional entities is also influenced
by the degree of decentralisation. For example, whereas in Britain the central
government is to a considerable degree involved in INTERREG programs, in
development, education and training, traffic and transport, tourism, environment protection, culture and sport (Laffan and Payne, 2001: 38-39). 79 Initiatives within INTERREG III are financed partly via funds provided by the EU Commission - for example the total contribution by the ERDF to INTERREG III for 2000-2006 programming period equals EUR 4 875 million - and partly via financial resources of the entities involved. Development of cross-border co-operation has a high priority in the allocation of financial resources within INTERREG. After having received INTERREG funding, each member state has to assure that at least 50 per cent of the financial allocations will be dedicated to cross-border co-operation under strand A. 80 NUTS III - Nomenclature of Units for Territorial Statistics – is a subdivision of primary importance for the allocation of funds in the framework of INTERREG (Commission of the European Communities C (2000) 1101 – EN: 6). .
135
136
Germany the Länder play a central role (for details see section 4.1.4.2) (Perkmann,
1999: 662).
In order to facilitate and promote trans-frontier co-operation between territorial
entities, the Council of Europe introduced the European Outline Convention on
Transfrontier Co-operation between Territorial Communities or Authorities, which
was open to signature in 1980 in Madrid (henceforth abbreviated as Madrid
Convention).81 The member states of the Council of Europe that signed the Madrid
Convention explicitly committed themselves to foster trans-frontier co-operation
between territorial units in the framework of these units’ powers as regulated under
terms of domestic law. Trans-frontier co-operation is defined in the Madrid
Convention as ‘any concerted action designed to reinforce and foster neighbourly
relations between territorial communities or authorities within the jurisdiction of two
or more Contracting Parties and the conclusion of any agreement and arrangement
necessary for this purpose’ (Article 2, Madrid Convention). Thus, the Madrid
Convention differentiates between two types of external activities. On the one hand it
mentions concerted action. The latter does not imply the establishment of legal links
and entails mutual consultation, exchange of information and joint studies. On the
other hand the Convention refers to the conclusion of agreements and arrangements.
This involves the establishment of legal links.82 Agreements and arrangements have to
respect internal regulations of each state with regard to international relations and
policy making in general. Within the framework of trans-frontier co-operation
territorial entities are controlled and supervised by organs competent under domestic
law (Article 3, Madrid Convention).
Thus, by means of the Madrid Convention, questions related to the legal framework
of cross-border co-operation were for the first time regulated in an international
treaty. However, the Convention has been criticised because it is only to a limited
81 Article 2 of the Madrid Convention defines territorial communities or authorities as “communities, authorities or bodies exercising local and regional functions and regarded as such under domestic law of each State.”82 According to the Madrid Convention, agreements are concluded between states on the subject of trans-frontier co-operation to define the context, forms and limits within which the territorial entities may act. Arrangements are concluded between territorial communities and authorities. The Madrid Convention has been ratified by 21 member states of the Council of Europe.
136
137
extent legally binding under international law (Beyerlin, 1998: 121).83 Indeed, the text
of the Convention represents a balance between two purposes followed by this
document of international law. On the one hand the Madrid Convention aims at
regulating on the international legal level the growing practice of cross-border
relations in Europe and on the other hand it chooses to acknowledge the key role of
signatory states and of national law in questions related to cross-border co-operation.
To solve questions of legal nature on the domestic level arising from the Madrid
Convention, the Additional Protocol to the European Outline Convention on
Transfrontier Co-operation between Territorial Communities or Authorities was
signed in 1995 and entered legal force end of 1998. According to the Additional
Protocol, any bodies emanating from trans-frontier agreements may possess legal
personality under public or private law (Article 3, Additional Protocol to the Madrid
Convention; Perkmann, 1999: 659; Sodupe, 1999: 63).84 If domestic law allows it, the
signatory states have the right to decide whether the trans-frontier co-operation body
is to be a public law entity or not (Article 5, Additional Protocol to the Madrid
Convention).
The Protocol No. 2 to the European Outline Convention on Transfrontier Co-
operation between Territorial Communities or Authorities Concerning Interterritorial
Co-operation, which was signed in 1998 and entered legal force in 2001, broadened
the scope of possible co-operation among territorial communities and authorities.
According to this protocol, the regulations of the Madrid Convention and the
Additional Protocol are applied to inter-territorial co-operation too, whereby the term
‘trans-frontier co-operation’ is read as if it were ‘inter-territorial co-operation’.
According to the second protocol, inter-territorial co-operation means any concerted
action aimed at establishing relations between territorial communities or authorities,
which is not considered as trans-frontier in the meaning of the Madrid Convention
83 Emmanuel Decaux criticises the Madrid Convention for two reasons. According to Decaux, first, the constant reference to domestic law in the case of co-operation between various territorial entities reduces the legal and practical scope of the Convention. Second, the Convention offers various models of co-operation but is not precise enough and does not codify previous or future practices in this context. According to Decaux, for these reasons the significance of the Convention in terms of filling the legal gap in the field of regional co-operation and offering territorial entities new mechanisms of cross-border and inter-regional partnership is limited (Decaux, 1984: 592-597). 84 Examples of cross-border co-operation under public law are the BENELUX Cross-border Convention of 1986 and the Euregion Rhein-Waal on the Dutch-German border since 1991.
137
138
and the Additional Protocol (Article 1, Protocol No. 2 to the Madrid Convention).
Article 2 of the protocol outlines that inter-territorial co-operation agreements,
concluded in fields of responsibility of territorial entities, have to be in conformity
with domestic law as well as with international obligations of the states these entities
are part of. The two protocols do not introduce any changes with regard to the
primacy of national law in the field of cross-border and inter-regional co-operation, as
established by the Madrid Convention, and do not provide any binding legal basis to
develop cross-border and inter-regional relations either (Niedobitek, 2002:
unpublished manuscript).
In the 1980s and above all in the 1990s increasing attempts have been undertaken by
signatory states of the Madrid Convention to find legal frameworks for cross-border
co-operation between local and regional territorial entities in geographically restricted
areas. In order to regulate various questions related to cross-border relations of
territorial entities a number of bilateral and multilateral treaties have been signed
between neighbouring states. It has to be emphasised here that these are treaties under
terms of international law, although they are named and referred to in the respective
legal texts as agreements (in German Abkommen).
The first of such treaties, the so-called BENELUX Agreement, was signed between
Belgium, the Netherlands and Luxembourg in 1986. An increasing number of similar
treaties were signed in the 1990s. Examples are the Agreement of Isselburg-Anholt
signed in 1991 between the Netherlands, the German federal government and the
governments of the two German Länder, Nordrhein-Westfalen and Niedersachsen, the
Framework Agreement signed in 1993 between Austria and Italy, the Agreement of
Rome signed in 1993 between France and Italy, the Agreement of Bayonne signed in
1995 between France and Spain, and the Agreement of Karlsruhe signed in 1996
between Germany, France, Luxembourg and Switzerland. These treaties concretise
for particular geographical contexts the principles outlined by the Madrid Convention
and normally refer to the latter in the preamble.85 In contrast to these treaties signed
by sovereign states, a treaty - the Agreement of Mainz - has also been signed in 1996
between the two Belgian federated units, Wallonia and the German-speaking
85 Matthias Niedobitek refers to such bilateral and multilateral agreements as implementation agreements of the Madrid Convention (Niedobitek, 2001: 106)
138
139
Community, and the two neighbouring German Länder, Nordrhein-Westfalen and
Rheinland-Pfalz. The Agreement of Mainz, which is signed exclusively by federated
entities, regulates cross-border co-operation between neighbouring municipal units
situated on the territory of these federated entities. The regulations of this treaty
largely resemble the regulations of other treaties in the field mentioned above.
To summarise, cross-border and inter-regional co-operation is a flexible method,
according to which the development of external ties by territorial entities may take
place within various types of institutional structures and based on different legal
frameworks. Fostering top-down or bottom-up initiatives for cross-border and inter-
regional co-operation, possibly together with the central government, serves the aim
to strengthen regional contacts and identities but may also lead to the establishment of
certain relationship structures between central and regional authorities. It may further
be concluded that a treaty making power is not a necessary condition for a regional
entity to develop external partnerships. The difference between treaties and contracts
does not affect the scope or the efficiency of regional co-operation.
4.1.3 Constitutional competences of federated entities in the field
of foreign policy
4.1.3.1 Belgium
As we have outlined in the third part of the study, the uniqueness of the Belgian
federation is expressed in the attribution of quite wide-ranging exclusive prerogatives
to its federated entities - Communities and Regions - whereas concurrent and
framework competences are kept minimal. A relatively high level of autonomy of
federated entities in the competence structure is further strengthened by the principle
of legal equality of levels that plays a central role in the Belgian legal order. Legal
equality means that legislative acts of federal and federated orders have an equal
status and none of them can overrule the other.86 This principle does not apply to
concurrent competences.
86 For the exception to this rule see on the status of legislative acts of the Brussels Capital Region in section 3.2.1.
139
140
This state of affairs is fully reflected in the field of foreign relations and treaty
making: legal equality at the domestic level and internal division of competences are
transformed into the competence to act on the international level. Since the fourth
federal reform of 1993 and the constitutional codification of the federal character of
Belgium, the latter is characterised by a ‘parallelism of the internal and external
allocation of powers’ (Alen and Peeters, 1998: 124) in accordance with the principle
‘in foro interno, in foro externo’. This means that according to Article 167 of the
Belgian Constitution, the federal government (the King) as well as the Communities
and Regions have the competence to regulate international co-operation, including the
power to sign international treaties, within the scope of their legislative and
administrative competences. Before 1993 only Belgian Communities had certain
rights in the field of international co-operation including the power to sign treaties in
their fields of competence. This right had been granted to them as a result of the state
reform of 1988 but had never been put into practice due to the absence of a special
law implementing the principles of treaty making (Alen and Peeters, 1998: 124).
The Belgian system differentiates between exclusive and mixed treaties according to
the type of competence, in which a treaty is concluded, and establishes different
institutional mechanisms of intergovernmental co-ordination for each of the two
types. Exclusive treaties are concluded separately by federal level or federated entities
in their domestic legislative and administrative fields of competence and take effect
after being approved by the respective legislative bodies. Hereby federal treaties can
only take effect after the approval by both houses of the federal parliament, whereas
treaties concluded by Regions and Communities necessitate the approval by regional
and community councils. In the Belgian system there is no mechanism of substitution,
which would a priori allow the federal level to substitute federated entities on the
international level by concluding treaties in spheres of the latter’s competence. This
means that there is no possibility for a foreign state to sign an international treaty with
the Belgian federal government on a subject matter that falls within the exclusive
prerogative of Communities or Regions (Alen and Peeters, 1998: 140). Thus,
regarding treaty making, each order, federal or federated, is a priori independent in
exercising its competences. In spheres of their exclusive domestic legislative and
administrative prerogatives, federated entities have a high level of autonomy on the
international level.
140
141
Federated units have two obligations towards the federal level while concluding
international treaties in fields of their legislative and administrative competence: to
respect the general principles of Belgium’s foreign policy and to inform the federal
government before concluding a treaty. Formally no explicit federal consent is needed
to enable federated entities to conclude exclusive treaties. However, there do exist
certain legal mechanisms, which allow the federal level under specific circumstances
to put a limitation on foreign policies of federated entities. For example, the autonomy
of the federated level is restricted in case the mechanism to ensure the coherence of
foreign policy is applied by the federal government. This mechanism is regulated in
Article 81 of the Special Law on International Relations of Communities and Regions
of 5 May 1993 that modifies the Special Law on Institutional Reforms of 8 August
1980 (Moniteur belge/Belgisch staatsblad, 8 May 1993). These regulations implement
Article 167, 4 of the Belgian Constitution that deals with foreign policy making in the
federal state.
The mechanism to ensure the coherence of foreign policy applies if the federal level –
the King – disagrees with a treaty initiative taken by a Community or a Region. After
the federal objection has been communicated to the entity in question, the treaty
making procedure is temporarily suspended and the Interministerial Conference for
Foreign Policy (ICFP) deals with the issue. This interministerial conference is one of
the sixteen sector-specific intergovernmental conferences composed of
representatives of federal and federated governments on the ministerial level. The
ICFP, like similar intergovernmental conferences in other policy fields, decides by
consensus and has been created with the aim to co-ordinate positions of various
entities. The temporary suspension of the treaty procedure is lifted if the ICFP
disposes of the objections. If no consensus can be reached in this body, it is up to the
King, i.e. to the federal government, to decide on the final suspension of the treaty
and to confirm this decision by means of a Royal Decree that has to be approved in
the Council of Ministers.
This mechanism can only apply if a) Belgium has not recognised the other party to the
treaty, b) Belgium has no diplomatic relations with it, c) relations between Belgium
and the other party have been broken off, suspended or seriously jeopardised or d) the
treaty is contrary to international and supranational obligations binding on Belgium
141
142
(Lagasse, 1997: 27). In the last two cases, the King has the right to suspend the
execution of exclusive treaties that have been concluded by Regions and
Communities if the latter have done so either without notifying the federal
government beforehand or irrespective of federal objections (Alen and Peeters, 1998:
129).
In terms of division of treaty making competences, the relations between the two
levels are non-hierarchical as legal regulations open up a way for independent
exercise of external policies by federal and federated orders. At the same time there
exists a low level of hierarchy in the co-ordination structure of exclusive federated
treaties, in particular regarding the competence of the federal level to ensure the
coherence of foreign policy making. In this case, the federal level has a superior
position. It has the right to supervise and control federated entities’ external policies.
However, in exercising its right to ensure the coherence of Belgian foreign policy, the
federal level can not act independently, which means that federated entities are not
unilaterally dependent on the upper level of authority. Instead, a co-ordinating
procedure that involves authorities at various levels on an equal basis takes place
within the structure of the Interministerial Conference for Foreign Policy. Unilateral
lines of dependence of federated entities on federal authorities may be established
only in case the federated entities disregard the principles of coherent foreign policy
making and conclude exclusive treaties irrespective of federal objections. In this event
they give the federal government a reason to finally suspend the execution of
federated treaties (see above).
To summarise, whereas the division of treaty making competences among federal and
federated orders is non-hierarchical, the inter-level co-ordination of exclusive
federated treaties is characterised by a low level of hierarchy. In the structure of co-
ordination the right of the federal government to unilateral suspension of federated
foreign relations is combined with intergovernmental decision making among various
levels on the basis of consensus rules. The latter is in the first place characterised by
mutual rather than unilateral dependence of federal and federated entities.
As for the so-called mixed treaties, these regulate subject matters that fall under the
prerogative of the both orders, the federal government as well as the Regions and/or
142
143
Communities. This means that a certain degree of interaction between the levels is
necessitated in order to prepare and negotiate mixed treaties. A number of
institutional mechanisms have been established in Belgium to ensure a sufficient
degree of intergovernmental co-ordination during the preparation of mixed treaties.
These mechanisms are regulated by the Co-operation Agreement87 of 8 March 1994
concluded between the federal government, Communities and Regions.88 The
preparation of mixed treaties takes place in the Interministerial Conference for
Foreign Policy under the co-ordinating leadership of the Federal Public Service of
Foreign Affairs.89 Every intention to conclude a mixed treaty has to be communicated
to this interministerial conference. It belongs to the latter’s competence to confirm the
mixed character of the treaty and to determine the composition of the Belgian
delegation charged with preparation of the treaty as well as its negotiating position
(Lagasse, 1997: 33).
In principle, mixed treaties require the signature of a federal minister as well as of the
respective regional and/or community ministers. This means that there is no hierarchy
between the representatives of governments at various levels (Alen and Peeters, 1998:
127). In 1994 the Interministerial Conference for Foreign Policy approved five
possible options to sign mixed treaties by federal, regional or community ministers.
The mode of signature depends on the requirements of international organisations in
the framework of which the treaty is concluded and on whether the subject matters
regulated by the treaty fall within a predominantly federal, community or regional
sphere of competence (on various modes of signature see Lagasse, 1997: 35-36; Alen
and Peeters, 1998: 127). Mixed treaties can take effect only after they have been
approved by both houses of the federal parliament and, at the same time, by the
councils of those Communities and Regions that are party to the treaty. Refusal of
87 To regulate federal relations by means of co-operation agreements is a characteristic feature of the Belgian public law and federal practice. The federal government and federated entities on an equal basis conclude such agreements concerning common initiatives, common institutional structures or common exercise of competences. 88 It has to be noted here that the term ‘mixed treaties’, as used in the Co-operation Agreement of 8 March 1994, covers only those treaties, which concern the competences of the federal level and of the Regions and/or Communities at the same time. Treaties that touch upon regional and community competences at the same but do not affect federal prerogatives are not regulated by the Co-operation Agreement (Alen and Peeters, 1998: 126; Lagasse, 1997: 31-32). 89 Since 2002 all the federal ministries in Belgium have been renamed into federal public services. Consequently, the Federal Ministry of Foreign Affairs, Exterior Commerce and Development Co-
143
144
approval by one of the legislatures makes the ratification of the treaty by the King of
Belgium impossible.
If Communities and Regions do not wish to participate in the negotiation of a mixed
treaty, they have the right to inform the ICFP about their decision. In this case,
Belgium has to make a reservation concerning the application of the treaty on its
territory: the Federal Minister of Foreign Affairs has to inform the treaty partners that
the treaty will not have effect on the entire territory of the federal state. Once such a
treaty is signed, it can be ratified without the approval by the legislative bodies of
entities excluded from the treaty. It has to be noted here that such reservations are not
allowed regarding the treaties of the European Union (Alen and Peeters, 1998: 128;
Lagasse, 1997: 33-34).90
Thus, formalised mechanisms of preparation and negotiation of mixed treaties in
Belgium are characterised by a relatively high degree of interdependence of
authorities at various levels. Interdependent relationships are established because the
participating entities, that co-ordinate with the aim to develop a common position, are
largely equal. This type of independence can be detected on the governmental and
administrative as well as on the parliamentary levels. Within the structure of the
intergovernmental treaty co-ordination authorities representing federal and federated
levels have equal negotiating powers as decisions are made on the basis of consensus.
On the parliamentary level, the legislative bodies of federal and federated entities are
equally important, in as far as each of them has to approve the treaty in question. In
case one of the entities refuses to do so, the treaty can not be ratified.
operation is called Federal Public Service of Foreign Affairs, Exterior Commerce and Development Co-operation. 90 As for international agreements concluded jointly by the European Union and its member states, a statement appears under the Belgian signature referring to the Communities and Regions where such an indication is imposed by the Belgian constitutional law. However, the Kingdom of Belgium alone is the bearer of full responsibility for compliance with international obligations and is bound by the provisions of the international agreements it has concluded (Alen and Peeters, 1998: 127). For example, when in 1994 the accession treaty of Norway, Austria, Finland and Sweden to the EU was signed, Belgium made a special declaration. The declaration indicated that ‘by signing this treaty on behalf of the Kingdom of Belgium, both the Belgian federal authorities and the French-speaking Community, Flemish Community and German-speaking Community of Belgium, the Walloon Region, the Flemish Region and the Brussels Region have entered into an undertaking at international level’ (Minutes of the signing, Official Journal of the European Communities, No. C 241/10, 29 August 1994, 402, cited from Alen and Peeters, 1998: 127).
144
145
4.1.3.2 Germany
Treaty making competences in the German federation are regulated in Article 32 of
the Basic Law. The competence to conduct foreign relations is attributed to the
Federation. Hereby the federal government has to hear the opinion of the Länder
before it concludes treaties that touch upon the special circumstances (besondere
Verhältnisse) of federated entities. Thus, the German constitutional regulations fully
respect the principles of international law according to which sovereign entities are
entitled to conduct foreign relations and represent the country abroad. With regard to
federated entities’ treaty making competence Article 32, 3 BL contains the following
statement: ‘in so far as the Länder have the power to legislate they may, with the
consent of the Federal Government, conclude treaties with other countries’. This
means that in the German federation the Länder have the right to conclude treaties
with other states or regional entities given that the treaty falls within the legislative
competences of the Länder, and the federal government gives its consent to the
treaty.91
While analysing the regulations of the Basic Law with regard to foreign policy and
treaty making, Siegfried Magiera emphasises that the status of the German Länder as
subjects of international law is partial and potential (Magiera, 1997: 100).
International legal personality of the German federated entities is partial because it is
limited to the conclusion of treaties under terms of international law. Its potential
character is explained by a condition that applies to treaty making competence in
general and has been outlined in greater detail above: the Länder can only become
subjects of international law when other subjects of international law sign a treaty
with them. Taking these considerations into account, we can conclude that the legal
91 Article 32, 3 is not a constitutional innovation of the modern German federal system as codified in the Basic Law. Treaty making competence of the German federated entities is rooted in the German federal and confederal history during which the Bund was traditionally not considered as the only authority responsible for foreign policy making and the representation of the state on the international arena. In the German Federation (der Deutsche Bund), the North German Federation (der Norddeutsche Bund) and the German Empire (das Deutsche Reich) – highly federal and confederal structures with weak central authorities (on these structures see section 3.1.1) - federated states possessed wide ranging treaty making powers. According to Article 11, 3 of the Imperial Constitution of 1871, treaty making competences of the component states corresponded with their competences on the internal level. The Constitution of the Weimar Republic (Article 78, 2) also granted the Länder certain limited treaty making competences whereby the treaties concluded by the Länder required the consent of the federal government (Beyerlin and Lejeune, 1994: VIII; Stern, 1995: 254, 264).
145
146
codification of treaty making competences does not necessarily mean that the entities
empowered to conclude treaties possess international legal personality. The latter
always has a potential character unless international treaties are concluded by
federated entities.
As for external relations of the Länder conducted under terms of domestic, i.e. public
or private, law, Article 32 BL does not refer to such relations. They are not explicitly
regulated in the German system. However, Article 30 BL, which makes the Länder
responsible for the exercise of state prerogatives and tasks unless otherwise regulated
by the Constitution (see section 3.2.2), implies domestic as well as foreign policies of
the Länder under terms of national law. Thus, Article 30 BL implicitly empowers the
German federated entities to conduct external relations under terms of public or
private law (Niedobitek, 2002: unpublished manuscript).
There are two differences between the German and the Belgian models of treaty
making. First, whereas in Belgium a federated unit’s government has only to inform
the federal government about its intention to conclude a treaty, in Germany the
primacy of the federal level is such that its explicit consent is required before a
federated unit can conclude a treaty. Irrespective of whether the subject of the treaty
touches upon federal competences or not, a formal approval by the federal
government has to be communicated to the Land in question so that the treaty can be
concluded and then incorporated into Länder law.92 However, by giving its consent
the Federation does not become a party to the treaty. It has to be emphasised that the
Bund may refuse its permission only on the basis of the interests of the Federation as
a whole. It may not simply veto the constitutional right of the Länder to enter into
treaty relations with outside partners (De Villiers, 1995: 35). Unlike Belgium, in the
case of disagreement between federal and federated orders, prior to the final decision
by the federal government on whether or not to grant its permission to a treaty, no
formalised co-ordination process takes place. However, the principle of federal
loyalty, Bundestreue,93 applies here. In case the disagreement between the Federation
92 The consent from the side of the federal government has to be given before the treaty is concluded but not before the treaty negotiations are underway (Magiera, 1997: 102). 93 The principle of Bundestreue was originated in the German constitutional theory and practice in the 19th century and means a legal obligation for the Federation and the Länder alike to assist each other, to integrate efforts and share capacity when required. It has been concretised and recognised as a binding
146
147
and the Länder can not be solved otherwise, both orders have the right to apply to the
Federal Constitutional Court (Bundesverfassungsgericht).
Second, although the Länder may conclude treaties in fields of their legislative
competence, there exists no regulation either in the Constitution or in any other law
that excludes the federal government from treaty making in these fields. Irrespective
of the fact that the German Länder historically possessed various degrees of treaty
making powers, the controversy between federal and federated representatives with
regard to the exclusive nature of these powers arose only under terms of the Basic
Law. The controversy mainly concerned two questions. First, it was debated whether
the treaty making competence of the Länder was an exclusive or a concurrent power.
Second, it was contested whether the Länder were responsible for the conclusion of
treaties in fields of their exclusive domestic competence or only for transformation of
treaties signed by the Federation in these fields into national law. During the first
decade after the Basic Law entered into force in 1949 three positions could be
distinguished in this respect.
According to the so-called centralist position advocated by the Federation and Berlin,
the federal treaty making competence was all encompassing. Apart from that the
Bund had the right to transform the treaties, concluded either in federal or in federated
fields of competence, into national law. Thus, based on this view, the Federation
could conclude international treaties and transform them into domestic law
irrespective of the field of competence regulated by the treaty in question. The so-
called south German position, supported by the south German Länder, Bayern,
Baden-Württemberg, Hessen, Rheinland-Pfalz, and Nordrhein-Westfalen, advocated
the opinion that the treaty making power of German federated units, including the
power to sign and transform treaties into domestic law, was these units’ exclusive
competence. The third, so-called north German, position was represented by the
legal principle by the Federal Constitutional Court. The principle of federal loyalty, which corresponds to the German Bundestreue, also exists in the Belgian federation since 1993 (Article 143, 1, Belgian Constitution) and is meant to avoid conflicts of interest between various orders (Brassine, 1994: 24, on the topic see also Lejeune, 1994; Peeters, 1994b). However, this principle is not further defined or concretised by the federal constitution and there exist no direct legal sanctions for its enforcement. In the decisions, in which the principle of federal loyalty was called upon by a party, courts have regulated the case without referring to it (Poirier, 2002: 34-35). As a pendant to the principle of federal loyalty, in the Austrian federal system since 1984 there exists the so-called Berücksichtigungsgebot (the principle of mutual consideration).
147
148
Länder Bremen, Hamburg, Niedersachsen and Schleswig-Holstein. As far as the
power to conclude treaties is concerned, this view coincided with the centralist
position represented by the Federation, according to which the treaty making power of
the Länder was a concurrent competence. With regard to the competence to transform
treaties into national law, the north German federated entities supported the idea that
the treaties concluded in fields of Länder competence were to be transformed into
domestic law by the Länder. Thus, according to this view, the Federation had the right
to conclude treaties in fields of federated entities’ competence and the latter were
responsible for the transformation of such treaties into national law (Stern, 1995: 257;
Hartung, 1984: 1-4).94
A political solution to the legal situation with regard to treaty making and a
controversy around it was found in 1957 when the Lindau Agreement on co-operation
between the Federation and the Länder was signed. The agreement was concluded in
Lindau, Germany, between the federal government and the representatives of the
Länder. The parties to the agreement upheld their positions with regard to treaty
making competences of the Federation and the Länder. The Lindau Agreement did
not have the intention to change the constitutional distribution of competences in the
field of foreign policy, but found a practical solution to the controversy with regard to
questions of legal nature. The original intention to integrate the regulations of the
agreement into the Basic Law was not carried out.
After the conclusion of the Lindau Agreement, the north-south dimension of the
controversy lost its relevance, although the regulations of the agreement rather
correspond to the north German position. The Lindau Agreement has not been
promulgated as law and has, consequently, political rather than legal implications. It
is referred to as a modus vivendi rather than a legal document. As the Lindau
Agreement is not legally binding, the Federal Constitutional Court can not make
decisions based on the agreement.95
94 The three positions were identified in 1956-57 by a sub-committee of the Bundesrat’s Committee for Internal Affairs. This sub-committee was charged to examine all legal issues related to international treaties concluded by the Federal Republic of Germany (Stern, 1995: 257). 95 Besides the broadly accepted view among scholars and above all practitioners in the field, according to which the Lindau Agreement is a gentlemen’s agreement, a modus operandi, with political but no legal implications, there have been attempts in the juridical literature to show that the Lindau
148
149
The Lindau Agreement gives the Federation the right to conclude treaties in fields of
legislative competence of the Länder under the condition that the latter are involved in
the treaty making procedure via the Permanent Treaty Commission. This commission,
constituted in 1958, co-ordinates positions of various Länder and acts at the same time
as the institution of communication between the Bund and the federated entities.96
The commission meets monthly and is composed of representatives of Länder
missions to the Federation (Leonardy, 1993: 241).97 In case cultural treaties are on the
agenda of the commission, the secretariat of the interministerial Conference of the
Länder Ministers of Culture, the Kultusministerkonferenz, is invited to the meetings of
the commission. Sometimes but rather seldom representatives of the federal
government attend the meetings of the commission too.
The Lindau Agreement provides for various degrees of Länder involvement in the
federal treaty making procedure. If a treaty affects exclusive competences of federated
entities, the consent of every Land is required and each of them can veto the treaty
(Point 3, Lindau Agreement). If a treaty only touches upon their essential interests, the
Länder have to be informed as soon as possible but have no right of veto (Point 4,
Lindau Agreement). According to the federal constitution, the treaties concluded by
the federal government that in any way affect or touch upon the competences of the
Länder have to be ratified by the Bundesrat (Article 59, 2 BL).
Thus, in the German federal system the principle in foro interno in foro externo does
not apply to the field of foreign policy making. The Bund is entitled to conclude
international treaties in every policy field. The Länder ‘may’ (Article 32, 3 BL)
conclude treaties in fields that are either not classified by Article 73 BL as exclusive
competences of the Federation or have not yet been regulated by the latter as its
concurrent and framework competences according to Article 72 BL (De Villiers,
1995: 29). The Bund may also empower the federated entities to conclude treaties in
fields of exclusive federal competences.
Agreement is an agreement under terms of constitutional law (on these views see Hartung, 1984; Stern, 1995). 96 The Permanent Treaty Commission has no standing orders. A Bavarian representative has chaired the commission since 1958 (the rotation system was applied only between 1969 and 1971). The Permanent Treaty Commission works on political and administrative levels whereby the former is seldom used as a decision making authority and positions are taken within administrative structures. 97 Each German federated entity has a separate representation office to the Federation.
149
150
Contrary to the Belgian system, federal treaty making powers in Germany are not
limited by the allocation of certain treaty making competences to federated units.
Exclusive legislative prerogatives of the Länder on the internal level become
concurrent competences to conclude treaties when transferred to the external level. By
taking the initiative to conclude a treaty in fields of exclusive responsibility of the
Länder, the Federation deprives the federated entities of the possibility to conclude a
treaty in the same field of competence. As the Federation can conclude treaties in
fields of federated entities’ exclusive prerogatives, these domestic prerogatives of the
Länder are in the field of treaty making potentially reduced to participation rights in
federal treaty making procedures via the Permanent Treaty Commission, and at a later
stage in the process of ratification via the Bundesrat.
Compared with the Belgian system, the German regulations regarding foreign policy
and specifically treaty making give far less autonomy to federated entities. A
relatively high degree of hierarchy between the Bund and the Länder is established in
the first place because the treaty making competence of the latter is a concurrent
power. In the field of treaty making the Federation has a potentially dominant position
and possesses legal mechanisms to control external activities of component entities.
However, as far as the treaty negotiating procedures on the internal level as regulated
by the Lindau Agreement are concerned, there is a high degree of interdependence
between the federal and federated orders. This applies especially to federal treaties
that affect the competences of the Länder. The right of each entity to veto the treaty
during the co-ordination process puts these entities in equally relevant positions. To
summarise, whereas the distribution of foreign policy competences establishes
hierarchical relationships between federal and federated levels, the co-ordination
mechanisms applied during treaty making procedures lead to inter-level relationships
characterised by a considerable degree of interdependence of levels on each other.
As for cross-border co-operation, the transfer of sovereign powers to cross-border
institutions is the most intensive form of such co-operation. In Germany the power to
do so is shared between the Bund and the Länder. Municipal entities (Gemeinden) do
not have the corresponding right. According to Article 24 BL, the Federation has the
competence to transfer its sovereign prerogatives to inter-state institutions
(zwischenstaatliche Einrichtungen). These institutions have to be inter-state
150
151
organisations created on the basis of international treaties concluded between states.
The Federation can also transfer the sovereign powers of federated entities to such
inter-state institutions (Niedobitek, 2001: 447-448).
On the basis of a constitutional innovation of December 1992, the German Länder can
now also transfer sovereign powers (Hoheitsrechte) to cross-border institutions
(grenznachbarschaftliche Einrichtungen) insofar as the Länder ‘are competent to
exercise state powers and to perform state functions’. However, for doing so, they
need to ensure the consent of the federal government (Article 24, 1a BL). The German
Länder can only transfer sovereign powers to cross-border institutions when other
territorial entities across the border also have the corresponding competence. Since
this is not the case, the German constitutional regulations of Article 24 BL have so far
remained quite unique and have never been applied in practice (Niedobitek, 2001:
420-421).
The Länder can transfer sovereign powers to cross-border institutions not only in
fields of their exclusive legislative competence but also in fields of their
administrative responsibility, which are relatively broad. It should be reminded here
that the majority of federal laws in Germany are administered by federated entities.
The Länder can transfer sovereign powers to cross-border establishments created
either under terms of international or of domestic law. The transfer of sovereign
competences can be achieved in two steps. The first step is of bilateral or multilateral
nature. It creates an organisation under terms of international or domestic law to
which sovereign competences have to be transferred or attributes some competences
to an already existing organisation. The federal government does so on the basis of
international treaties whereas in the case of the Länder, agreements under terms of
international as well as domestic law can be concluded in order to create cross-border
entities. The second step is unilateral as it envisages the transfer of sovereign powers
to already existing establishments. This way such establishments are empowered to
perform certain competences in place of a domestic territorial entity (Niedobitek,
2001: 446-450).
151
152
4.1.3.3 Austria
Treaty making competences of Austrian federated entities are regulated in Article 16
of the Austrian federal constitution, the Bundesverfassungsgesetz (B-VG). The history
of treaty making powers of the Länder dates back to repeated demands from the side
of the federated entities aimed at constitutionalising such powers. In the so-called
request catalogue (Forderungskatalog) of 1985 (on these catalogues see section 3.1),
which formulated the standpoints of the Länder with regard to desirable federal
reforms, the constitutional regulation of treaty making competences was granted a top
priority. According to the Länder, the competence to conclude treaties under terms of
international law would be an expression of their statehood and would contribute to
the transformation of Austria to a fully fledged federal state (Hammer, 1999: 6). Apart
from that, the Länder argued that treaty making powers would make it possible for
them to further develop the existing cross-border relationships to the entities with
similar powers (such as the German Länder or the Swiss Cantons) and to put these
relationships on a legal basis under terms of international law (Pernthaler, 1991: 80).
It has to be noted that at that time it was also in the interest of the federal government
to grant the Länder certain treaty making competences. Although the Austrian Länder
had up until that time been actively involved in various cross-border structures, the
latter did not have any formalised basis. The lack of legal mechanisms in this field
precluded the federal government from any formalised and institutionalised influence
on the external relations of federated entities. Putting cross-border partnerships on a
legal basis under terms of international law would lead to the creation of various legal
mechanisms designed to control foreign activities of the Länder by the federal
government (Hammer, 1992: 3).
The federal reform of 1988 accommodated the demand of the Länder and treaty
making powers were granted to the Austrian federated entities by Article 16 of the
Constitution. The regulations of this article symbolised a step towards federalisation
of foreign policy making, which until then, according to Article 10 B-VG, was
entirely under the prerogative of the federal government. In this sense, Article 16 B-
VG, which is the most important constitutional regulation with regard to foreign
policy competences of the Austrian federated entities, has a relatively high symbolic
and theoretical significance (Hammer, 1999: 4, 7).
152
153
According to the first paragraph of Article 16 B-VG, the Länder may in matters,
which fall in fields of their autonomous competence98 conclude treaties
(Staatsverträge) with neighbouring states or federated entities (Teilstaaten). In this
way, the treaty making competence is put under a twofold restriction. The first
restriction refers to its scope as the power to conclude treaties is reduced to the
prerogatives of the federated entities on the domestic level. This regulation goes in
line with respective regulations in Belgium and Germany, and thus does not
distinguish Austria from the two other federal states. The second restriction has a
geographical character as it limits treaty making activities of the Länder only to those
with neighbouring states or federated entities. However, it is not necessary that the
entities engaged in a treaty relation have a common border. It is sufficient if the states,
which these entities are part of, have one. For example, the Land of Niederösterreich,
making use of Article 16 B-VG, could conclude an international treaty with the
German Land of Saarland. These two federated entities do not have a border but
Germany and Austria are neighbouring states.
More fundamental restrictions to the treaty making power of the Länder are regulated
in the second and third paragraphs of Article 16. Before starting negotiations with a
contracting party, the head of a Land executive, the Landeshauptmann, has to inform
the federal government about it. Prior to concluding a treaty, the Landeshauptmann
has to ensure a formal consent of federal authorities.99 These regulations largely
resemble those existing in the German federation.
The most controversial regulation of Article 16, which has lead to diverging
interpretations of federated treaty making competence, is the following: the treaty
initiated by a Land government is negotiated and concluded by the federal
government i.e. by the President, with a co-signature of a Landeshauptmann (Article
16, 2 B-VG). This regulation, which distinguishes the Austrian model of treaty
making from the Belgian and German ones, means that not the Länder but the
President of Austria, i.e. the Federation, concludes treaties that are initiated by the
98 In German, ‘Angelegenheiten, die in ihrem selbständigen Wirkungsbereich fallen’ (Article 16, 1 B-VG). 99 If the federal government does not respond within eight weeks after the date of submission by a Land executive of an application for consent at the Federal Chancellery, it means that the federal government is not against the treaty in question (Article 16, 2 B-VG).
153
154
Länder and to which Article 16, 1 of the Constitution applies. Thus, the Länder do not
possess any treaty making, more specifically, treaty concluding powers, because the
latter has to be exercised by the President (Berchtold, 1989: 218).100 The competence
of the Länder comprises only the initiative to conclude a treaty and the concretisation
of the treaty text and its contents (Hammer, 1999: 24; Berchtold, 1989: 219). During
the entire treaty making procedure – from the initiative to the signature of the treaty -
in fields of prerogatives of the Länder, the competences between the latter and the
Federation are divided in such a way that the Länder possess extremely limited
powers.101
In the case of disagreement between federal and federated authorities concerning a
treaty initiated by a Land executive, neither the federal constitution nor any other
legal document envisages special conciliation procedures with the aim to sort out
diverging positions, as it is the case in Belgium and Germany. If a Land concludes a
treaty in spite of federal objections, the federal government has the right to demand
the abolition of the treaty by the Land government. In the event of non-fulfilment of
this federal demand by the Land, the federal government may simply abolish the
treaty itself (Article 16, 3 B-VG). This regulation puts a further restriction on the
comparatively limited treaty making competences of the Austrian Länder.
Unlike Belgium and along with Germany, the treaty making competence of the
Austrian Länder is not exclusive but has a concurrent character. The treaty making
prerogatives of the federated entities do not restrict the federal treaty making power in
any way. The latter remains all-encompassing (Thaler, 1990: 43). According to
Article 10, 1 (point 2) B-VG, the Bund may conclude international treaties in fields of
federal competence as well as in fields of legislative and administrative competences
of the Länder. However, this regulation leaves the treaty making competence of the
Länder unaffected (unbeschadet). Consequently, international treaties in fields of
100 According to Hammer and Berchtold, it could even be speculated whether Article 16 B-VG grants the Länder treaty making powers or only provides an alternative, more decentralised method to conclude treaties by the federal government in fields of Länder competence. In this case Article 16 would apply only when the Federation concludes treaties for the Länder in fields of their prerogative (Hammer, 1992: 40, Berchtold, 1989: 219). 101 Notwithstanding these very limited treaty making powers of the Länder and the fact that Länder treaties have to be concluded by the federal government, Hammer comes to the conclusion that under terms of international law not the Federation but the Länder would become party to the treaty (Hammer, 1999: 24).
154
155
Länder competence can be concluded by the Bund as well as by the Länder. This
means that treaty making belongs to a very limited number of concurrent competences
under the Austrian constitutional order.102 The right of the Bund to abolish treaties
concluded by the Länder (Article 16, 3 B-VG) has to be discussed against this
background and is aimed at guaranteeing a certain degree of coherence in Austrian
foreign policy making. Thus, disagreements between the orders with regard to treaty
making are solved in Austria through abolishing a Länder treaty by the Bund instead
of negotiating a common solution in the structure of inter-level co-ordination, as it is
done in Belgium. It has to be mentioned that the principle Bundesrecht bricht
Landesrecht as known in the German federal system does not exist in Austria.
However, the lex posterior derogat legi priori-rule applies here, which means that
‘the later rule derogates the previous one’. This rule applies under international as
well as under the Austrian law. In the Austrian legal system, the derogation can take
place only if the later regulation is ranked higher or equally high with the earlier one
(Thaler, 1990: 43-45).
Another constitutionally provided possibility for the Austrian federated entities to
conduct external relations is regulated by Article 17 B-VG. According to this article,
the Länder have the right to establish trans-national relations as subjects of private
law. In this case, it is not necessary to obtain an authorisation of the Bund in order to
conduct external relations. Thus, in contrast to Article 16 B-VG, the Länder may
develop external relations based on private law without any involvement from the side
of federal authorities. Because Article 16 B-VG restricts the geographical scope of
action by the Länder to neighbouring states and federated entities, the essential
difference between Articles 16 and 17 is whether external relations of federated
entities are conducted under terms of international or domestic, and in particular
private, law.
To summarise, the treaty making competence of the Austrian Länder is nested within
the federal foreign policy making competence. Without the involvement of the federal
government the Austrian Länder can not regulate treaty relations in fields of their
exclusive competence. It is the federal government that signs such treaties. The
102 It should be reminded here that concurrent competences are referred to in the Austrian Constitution as Bedarfskompetenzen (see section 3.2.3).
155
156
competence of the Bund to sign treaties negotiated by the Länder, to initiate treaties in
fields of Länder competence and to abolish treaties concluded by the latter puts the
Federation in a clearly superior position. All these give the federal level substantial
control and supervision rights over federated entities’ treaty relations and lead to the
establishment of a relatively high degree of hierarchy between the orders in the field
of foreign policy and treaty making.
Based on the comparative analysis made above we can conclude that in the field of
federated entities’ foreign relations conducted according to federal principles,
relationship structures between federal and federated orders differ in Belgium,
Germany and Austria. The Belgian model is predominantly characterised by a high
degree of interdependence and in a number of instances by the possibility of
independent exercise of foreign political competences by both levels. In the German
model of treaty making there is a high degree of hierarchy in favour of the Federation
with regard to the distribution of treaty making competences among the orders. As far
as inter-level co-ordination of treaties in fields of Länder competence is concerned,
there is high degree of interdependence among the authorities at both levels. In
Austria the field of foreign relations and treaty making is characterised by a high
degree of hierarchy between the federal level and the Länder whereby the treaty
making prerogatives of the federated entities are nested in the federal foreign policy
competence.
4.1.4 Foreign policies of federated entities
Europeanisation of federal relationship structures?
4.1.4.1 Belgium
While developing foreign relations in the EU framework, the Belgian federated
entities have been using foreign policy competences attributed to them by domestic
legal regulations and via the European integration processes provided opportunity
structures to the fullest extent. The Belgian Communities and Regions have been
conducting their external relations on the basis of international treaties as regulated by
the Constitution and the laws specifying this, as well as on the basis of inter-regional
and cross-border agreements and initiatives under terms of domestic law.
156
157
Since 1993 the Belgian Regions and Communities, especially Flanders under the
government of Minister President Luc Van den Brande (from 1995 to 1999), have
been quite eager to present themselves as subjects of international law on the foreign
policy arena. The newly obtained treaty making competences have been
enthusiastically put into practice within and outside the geographical framework of
the EU. Since 1993 Flanders concluded exclusive bilateral international treaties with
the Netherlands, France and Luxembourg, with ten East and Central European states
that are candidates for EU membership as well as with partners outside Europe such
as South Africa (for a complete list of treaties see Ministerie van de Vlaamse
Gemeenschap, Administratie Buitenlands Beleid, 2003, available at
www.law.kuleuven.ac.be/iir/verdragen/verdragenindex.htm).103 As for Wallonia and
the French Community, they signed treaties under terms of international law among
others with France, Luxembourg, the Netherlands, Senegal, Morocco, Tunisia,
Bolivia, the People’s Republic of China, Columbia and Congo104 (Lagasse, 1997: 28-
29; for a complete list of treaties see Ministère de la Région Wallonne, 2003:
unpublished document).
The Belgian Regions and Communities consider relations with neighbouring and
other European states as an important dimension of their external activities.105 We
have seen that with some of these states, such as Luxembourg, France or the
Netherlands, the Belgian federated entities have concluded exclusive bilateral treaties
under terms of international law. This means that they interact as subjects of
international law on an equal basis with central governments of these states. Such
exclusive bilateral treaty relations are normally developed without any involvement
from the side of the Belgian federal government. Federated entities just inform the
103 By the beginning of July 2003 Flanders was a party to 19 exclusive bilateral treaties, 41 trans-national contracts with sovereign states, regional and federated entities and international organisations,which are binding but not under terms of international law, and 40 non-binding agreements such as memorandums of understanding or common declarations (Ministerie van de Vlaamse Gemeenschap, Administratie Buitenlands Beleid, 2003). 104 Since February 2001 there exists one institutional structure called Directorate General for Bilateral Relations (Direction Générale pour les Relations Bilatérales), which integrates the Commissariat General for International Relations of the French Community (Commissariat Général aux RelationsInternationales) and the Division of International Relations of the Walloon Region (Division desRelations Internationales). In the field of foreign relations this organ acts for the French Community of Belgium, the Walloon Region and the French Community Commission. 105 For example, geographical proximity is one of the seven principles on which the foreign policy of Wallonia and French Community is based (Commissariat Général aux Relations Internationales et Division des Relations Internationales, 2001: 5).
157
158
latter when they decide to negotiate and sign international treaties in fields of their
exclusive legislative and administrative competences.
In certain instances, however, the exercise of treaty making competences by federated
entities depends not only on internally regulated mechanisms of foreign policy
making and the decision by federated entities to conduct their foreign relations
according to these mechanisms. Besides these so-called internal factors, the practice
of treaty making by federated entities is to a considerable extent determined by the
priorities and strategies of their treaty partners. Foreign states do not always approve
of internal federal arrangements, on which the Belgian state structure is based and
which to some extent put Regions and Communities on an equal level with the federal
government. Sovereign states are sometimes reluctant to conclude exclusive treaties
with Belgian federated units and thus to act on an equal basis with non-sovereign
entities under terms of international law. Such an attitude of foreign partners imposes
limitations on Belgian federated entities’ choice to exercise their prerogatives in fields
of foreign policy and to conclude international treaties in their own name. In this case,
the second condition for being a subject of international law while exercising treaty
making activities - namely the consent of foreign states to conclude international
treaties with component parts of a federation (see above) – is not fulfilled. Such cases
are rather an exception in the Belgian practice of foreign relations and treaty making.
However, they have consequences for relationship structures between federal and
federated orders.
We will give two examples to illustrate what we outlined above. The first example
refers to the procedure of joining of Belgium together with the Walloon Region, the
French Community and the German-speaking Community to an interstate co-
operation treaty concluded in the framework of the inter-regional space called ‘Saar-
Lor-Lux-Trèves/Palatinat occidental’.106 In this Franco-German-Luxembourg cross-
106 The Grande Région Saar-Lorraine-Luxembourg, also called ‘Saar-Lor-Lux’, is an institutionalised inter-regional space. It comprises five fields of activity: interstate co-operation, intergovernmental co-operation, socio-professional co-operation (the relevant institution in this field is the Economic and Social Committee), co-operation among deliberative organs (the relevant institution is the Inter-regional Parliamentary Council) and co-operation of European initiatives. This inter-regional space was not created within the framework of the INTERREG program. It was founded by the governments of the entities involved. There are 288 cross-border networks and institutions listed in the inter-regional co-operation directory of Saar-Lor-Lux. Regional offices of Lorraine, Saarland, Rheinland-Pfalz and
158
159
border treaty of 1980 the French government represented the region of Lorraine
whereas the German government negotiated the treaty for the Länder of Saarland and
Rheinland-Pfalz. In 1998, the three federated entities of Belgium mentioned above
decided to join the treaty in their own name without any involvement of the federal
government. This means that the Belgian federated entities were to negotiate the
treaty under terms of legal regulations that apply to exclusive treaties in the Belgian
federal order.
Given the Belgian model of division of competences in the field of foreign policy and
treaty making, this intention by the federated entities did not pose any problems
between the latter and the federal government. According to the Belgian federal
balance, the Walloon Region, the French Community and the German-speaking
Community were supposed to negotiate the treaty on an equal basis with central
governments of Germany, France and Luxembourg. However, due to the urge of the
treaty partners, especially France, to involve the federal government into treaty
negotiations, the Belgian federated entities were prevented from signing the treaty
alone. As a consequence, it became unavoidable to turn the exclusive federated treaty
into a mixed one in order to guarantee the involvement of the Belgian federal
government as a party to the treaty. In 2001 a mixed treaty touching upon federal,
regional and community competences was signed together by the Belgian federal
government and the three federated entities.107
Another interesting example in this context is a bilateral treaty on co-operation in
linguistic, cultural, education and scientific domains concluded between the French
Community of Belgium and France in 1999. In this case, French authorities were
unwilling to conclude the international treaty on an equal basis with a component unit
of a federal state. It is notable that without the support from the side of the Belgian
federal government it would have been impossible for the French Community to sign
this exclusive treaty with France. The conclusion of the treaty became possible as a
result of informal negotiations between the Belgian Prime Minister and the French
Ambassador in Belgium. However, France still refuses to sign an exclusive
Luxembourg in Brussels co-operate with each other and co-ordinate their policies in the Committee of Regions (on Saar-Lor-Lux see Schmitt-Egner, 2001 and Schmitt-Egner, 2002). 107 Interview with a Francophone official, Brussels, March 2001.
159
160
international treaty on economic matters with the Walloon Region and, in this way,
shows its reservation to acknowledge the international legal personality of Belgian
Regions.108
These two cases illustrate that the Belgian federated units, while exercising their
internally regulated treaty making competences in the field of foreign relations, are
sometimes confronted with difficulties caused by the attitudes of their treaty partners.
In such cases Regions and Communities become to a certain extent dependent on the
involvement and support by the federal government. In the first case described above,
the involvement of the federal level resulted in the conclusion of a mixed treaty
instead of an exclusive one as originally intended, and lead to a joint action by the
Belgian federal and federated orders. In the second case, the federal level was
informally involved in the treaty making procedure to defend a federated entity’s right
to exercise its constitutional competence of treaty making autonomously.
Thus, even in those fields, where according to the Belgian constitutional order the
competences are divided based on the principle of exclusivity and should be exercised
independently by the levels, a certain degree of co-ordinated interaction and joint
strategies by federal and federated authorities are necessitated by external reasons. In
relationship structures established between federal and federated orders during such
interaction processes the federal level has a superior position because it enjoys a
higher level of recognition by some foreign partners. The possibility of autonomous
exercise of competences by federated units is limited, and the latter can act only if
they co-operate with federal authorities. Since the federal level is not dependent in
any way on the federated entities, the dependence of the latter on the federal level is
of unilateral nature. Consequently, a hierarchical type of relationship is established
between federal and federated orders.
We have seen in previous parts of this chapter that the negotiation procedures of
mixed treaties are based on the equality of participating entities. The institutions
108 Interview with a Francophone official, Brussels, March 2001. Baden-Württemberg made an attempt to involve Flanders in the inter-regional co-operation within the framework of ‘Four Motors for Europe’, which includes Baden-Württemberg, Rhône-Alps, Catalonia and Lombardy as members, and Wales and Ontario as associated members. However, Rhône-Alps opposed this initiative. Such an attitude of the French regional entity can be traced back to its fear that the French central government would go against the involvement of the highly autonomous Belgian federated entity in the inter-regional co-operation (Zimmermann-Steinhart, 2001: 51).
160
161
charged with preparation of such treaties involve representatives of all entities that are
from the Belgian side party to the treaty, and function on the basis of consensus rules.
Cases of institutionalised conflict between federal and federated orders with regard to
mixed treaties are very seldom.109 However, it has to be noted that a certain degree of
potential for confrontation is inherent in formal rules regulating the co-ordination of
mixed treaties since these rules give each participating entity the right of veto. Such
conflicts may erupt if in the case of disagreement among the Belgian negotiating
entities one or some of them decide to block the decision making procedure by
utilising the ultimate possibility at their disposal in the process of treaty making,
namely the right to veto the treaty. The right of veto may be exercised during the
intergovernmental co-ordination as well as during the phase of ratification by the
federal and federated legislative bodies.110
Although the majority of prerogatives in the Belgian federal system are exclusively
attributed either to federal or to federated levels and the principle in foro interno in
foro externo applies to these prerogatives, the broad majority of treaties concluded by
the Belgian federal and federated authorities have a mixed character. The high
number of mixed treaties is due to two reasons. First, majority of treaties is
multilateral and touches upon the competences of both levels. In principle, even a
single regulation, in case it affects the prerogatives of the other level, can turn an
exclusive treaty into a mixed one and thus lead to treaty negotiating procedures on the
internal level, which involve federal and federated authorities within the structure of
the Interministerial Conference for Foreign Policy (ICFP). Second, as we have seen
above, foreign states do not always approve of the internal federal arrangements on
which the Belgian state structure is based, and are sometimes reluctant to conclude
exclusive treaties with Belgian federated units.
109 Interviews with Flemish and Francophone officials, Brussels, March 2001. 110 An interesting example in this context is the negotiating procedure of a mixed treaty between Belgium and the Ukraine, which lead to a conflict between the Belgian federal government and the Flemish authorities. The treaty was signed in 1997 by the Ukrainian government and by the federal and federated governments of Belgium, Flanders included. The Flemish authorities refused to ratify the treaty by the Flemish Council and declared their intention to sign an exclusive treaty with the Ukraine. The federal government expressed its objections. As a consequence, the ratification procedure of the treaty was frozen. The treaty was ratified by the Flemish Council only under the new Flemish government, which came to power after the elections of 1999. This case is rather unique but it illustrates how much negotiating power single Belgian federated entities may have in the internal co-ordinating process of mixed treaties if they utilise their position and resources to the maximum (Interview with a Flemish official, Brussels, March 2001).
161
162
In 1997 the Working Group for Foreign Policy - an administrative branch of the
Interministerial Conference for Foreign Policy – reached a gentleman’s agreement
with regard to mixed character of treaties. This agreement has been approved by the
ICFP. Although the Working Group examines each treaty separately (except
exclusive federated treaties),111 it has been agreed that if 90 per cent of the contents of
the treaty falls within the exclusive competence of federal or federated levels, the
treaty has to be concluded exclusively by the respective level or entity. This principle
of the so-called ‘marginally mixed character’ has not been laid down in any legal
document yet but it determines the political practice of treaty making to a
considerable extent.112 The purpose of this regulation is to limit inter-level
institutionalised processes of interaction preceding the conclusion of mixed treaties
and to make possible the autonomous exercise of treaty making competences by
single federated entities. However, it has to be mentioned that due to the relevance of
single treaty regulations that are difficult to ignore, the 90 per cent-rule can not
always be strictly applied in practice.
The procedure to ensure the coherence of foreign policy has never been applied yet
and no serious attempts by the federal government aimed at suspension of a treaty
procedure initiated by a federated unit are known.113 There was only one case where
the federal government made an attempt to raise objections against a treaty negotiated
by Flanders. The federal authorities tried to initiate the above-mentioned procedure by
writing a letter to Flemish authorities concerning the treaty between Flanders and the
Netherlands on the extension of waterways in the Westerschelde (Verruiming
vaarweg Westerschelde). In the letter the federal government argued that the
exclusive international treaty in question concluded by Flanders would harm the
interests of the Belgian state. The Flemish government responded that such a
justification for the suspension of treaty making procedures was not included in the
four conditions under which the procedure to ensure the coherence of foreign policy
making could be applied by the federal government. As the Belgian government did
111 The Working Group for Foreign Policy deals with all treaties initiated by the federal government, i.e. mixed federal-federated treaties and exclusive federal treaties. Exclusive federated treaties are not discussed in the Working Group and the Interministerial Conference for Foreign Policy unless they become a subject of controversy among various levels. 112 Interview with a Flemish official, Brussels, March 2001. 113 Interviews with Flemish and Francophone officials, Brussels, March 2001 and May 2003.
162
163
not react to the Flemish response, Flanders and the Netherlands signed the treaty in
January 1995 without any intervention from the side of federal authorities.114
Apart from foreign relations based on international treaties, the Belgian federated
entities are involved in a wide range of external relations in the EU framework on a
cross-border and inter-regional basis. The initiatives to develop such relations stem
from above, the EU institutions, as well as from bellow, the federated entities. As far
as European initiatives are concerned, the Belgian Regions and Communities are
engaged in a number of institutionalised establishments in the framework of the EU
Commission’s program INTERREG.
The Belgian federal balance and the high level of autonomy of its federated units are
reflected in the relationship between the European Union and Belgium. The European
Commission considers the Permanent Representation of Belgium to the EU as the
main contact authority while designing and approving programs within the framework
of INTERREG. In order to approve an INTERREG program, the Commission asks
for the formal consent of the Permanent Representation. The latter functions as an
intermediary between the Belgian federated entities and the EU as all documents sent
from the Commission to Belgian Regions and Communities have to pass through the
Permanent Representation. However, the Commission remains in direct contact with
the Belgian federated entities. The Walloon Region, for example, uses the so-called
double circle of communication sending its correspondence at the same time to the
Permanent Representation and the European Commission. The Commission
communicates with the Belgian entities according to the same pattern. Normally it
sends information and correspondence simultaneously to the Permanent
Representation and the regional authorities. The federal government is not involved in
these lines of communication.115 Once the Commission sets the INTERREG budget
for Belgium as a whole, the federated entities negotiate among each other how to
divide the available financial resources.116 While administering INTERREG
programs, the Belgian regional and community governments interact directly with
114 Interview with a Flemish official, Brussels, March 2001. 115 Interview with a Francophone official, Brussels, July 2002 and August 2003. 116 Interview with a Flemish official, Brussels, July 2002.
163
164
central-government authorities of other participating states such as the Netherlands or
France.
The guidelines of the Commission for INTERREG III envisage the establishment of
institutional structures for each program of INTERREG. These structures normally
comprise a program Monitoring Committee, a managing authority, a Steering
Committee, a paying authority and a technical secretariat (Commission of the
European Communities, C (2000) 1101 – EN: 10-12). In all three strands of
INTERREG – A, B and C – the representation of Belgium in the institutional
structures follows the same pattern. For example, in Monitoring and Steering
Committees of all INTERREG programs only regional authorities are represented. As
Flemish regional and community institutional structures are merged, there is only one
Flemish regional representative. As for the French Community and the Walloon
region, the latter is normally entitled to represent both entities. No Belgian federal
authorities are involved in these institutional set-ups.117 There exist no cross-border
and inter-regional bodies under INTERREG dealing with mixed competences in the
sense of the Belgian legal order, which would lead to a mixed representation of
federal and federated authorities in the institutions of INTERREG. Apart from
representatives of the Belgian territorial entities a representative of the European
Commission and authorities from other groupings, such as non-governmental
organisations and chambers of commerce, are involved in these institutions. The
participation of the latter is encouraged and demanded by the EU. Decisions made by
the institutions created under INTERREG are binding for the entities involved.118
In the framework of INTERREG III A, institutionalised cross-border establishments,
the so-called Euregions, play an important role. Various forms of cross-border co-
operation on the territory of some Euregions that involve Belgian entities, such as
Scheldemond and Maas-Rijn, existed already before the start of INTERREG in 1989
and were from the Belgian side conducted by provincial authorities.119 The
Commission programs changed the character of these cross-border partnerships and
contributed to their institutionalisation and to an increase of financial resources
117 Interviews with Flemish and Francophone officials, Brussels, July 2002 and August 2003. 118 Interviews with Flemish officials, Brussels, June and July 2002. 119 Interview with a Francophone official, Brussels, August 2003.
164
165
available to the cross-border establishments. INTERREG programs facilitated not
only the strengthening of the already existing partnerships but lead to the creation of
new cross-border and institutional set-ups.120 Although it is up to the participating
entities, on which basis they develop cross-border partnerships, treaty making powers
are not utilised by the Belgian federated entities to establish cross-border and inter-
regional ties within INTERREG. Single programs evolve on the basis of multilateral
contracts signed by the participating entities. From the Belgian side these contracts
are normally signed by the Minister Presidents of the federated entities.121
As far as cross-border and inter-regional initiatives coming from below, i.e. from the
federated entities, are concerned, here we have to mention the Flemish initiative
aimed at strengthening the role of constitutional regions in the EU.122 This initiative is
one of the most obvious manifestations of the Flemish policy priority aimed at giving
Flanders a stronger voice within the EU. It started before and in preparation of the
Intergovernmental Conference (IGC) of Nice in 2000. This initiative is targeted at
increasing the political weight of regions with legislative powers within the European
institutional structures, especially after the EU enlargement in 2004 when federal
states and those with constitutional regions will constitute a minority within the
European Union composed of 25 member states.
In September 2000 over 20 constitutional regions formulated their priorities and
demands in a common position, which was addressed to the IGC of Nice. This
120 In the framework of INTERREG III A Flanders is involved in a number of programs. First, the Euregion Maas-Rijn integrates besides parts of Flanders, parts of Wallonia including the German-speaking Community of Belgium, and Dutch and German territorial entities. Second, the border region Flanders-the Netherlands comprises two programs, the Euregion Scheldemond and the Euregion Benelux Middengebied. It has to be mentioned that these two programs existed before the creation of the border region. Third, Nord Pas-de-Calais integrates Flanders and Wallonia from the Belgian side and French territorial entities. In the framework of INTERREG III B Flanders is participating in two programs, North Sea and North West Europe. As for Wallonia, it participates in four programs of cross-border co-operation within the framework of INTERREG III A: Co-operation Flanders-Wallonia-France integrates three sub-programs, Wallonia-Lorraine-Luxembourg, Euregion Maas-Rijn mentioned above and the program named Germany-Luxembourg-German-speaking Community of Belgium-Wallonia (from the German side the Länder Rheinland-Pfalz and Saarland are partners to the co-operation). Within INTERREG III B Wallonia participates in the program North West Europe. The entire territory of Belgium, including all Communities and Regions, is eligible for the program North West under INTERREG III C - inter-regional co-operation. 121 Interviews with Flemish and Francophone officials, Brussels, July 2002 and August 2003. 122 There is no universal definition of a constitutional region. Within the context of the Flemish initiative, constitutional regions are defined as entities, which have constitutionally granted powers to legislate by representative institutions as it is the case – within the EU – in Belgium, Germany, Austria, Spain, the United Kingdom and Italy.
165
166
common position was followed by a political declaration of seven constitutional
regions (Flanders, Wallonia, Bayern, Nordrhein-Westfalen, Salzburg, Catalonia and
Scotland) on 28 May 2001. The heads of over 50 European regions with legislative
powers supported the political declaration at a conference organised by the Walloon
government in Liège on 15 November 2001. It was agreed to organise annual summits
aimed at defining political priorities of constitutional regions.
Apart from foreign policies based on international treaties, and EU-supported cross-
border and inter-regional contacts, the Belgian federated entities conduct bilateral
relations with states and regional entities, which are based on various mechanisms of
external policy making described above. For example, Flanders has bilateral legally
non-binding agreements with the German Land of Baden-Württemberg (concluded in
1990), the Spanish Autonomous Community of Catalonia (concluded in 1992), the
Netherlands (two agreements concluded in 1994 and 1995), the French Region of
Nord-Pas de Calais (concluded in 2001), the German Land of Nordrhein-Westfalen
(concluded in 1999) and the Dutch Province of South Netherlands (two agreements
concluded in 1998). It also has binding agreements but not under international law
with the Netherlands (concluded in 2000), the German Land of Nordrhein-Westfalen
(concluded in 1991) and in the framework of the so-called Euroregion, involving the
three Belgian regions, Kent and Nord-Pas de Calais (concluded in 1992). These and
other similar agreements are called trans-national contracts in the Flemish context and
are normally regulated by private law (Ministerie van de Vlaamse Gemeenschap,
Administratie Buitenlands Beleid, 2003, available at
www.law.kuleuven.ac.be/iir/verdragen/verdragenindex.htm).
To summarise, the analysis of foreign relations of Belgian federated entities in the EU
framework provides a balanced mixture of external activities based on federal
principles and those guided by the logic characteristic for multi-level governance.
Both types of foreign activities developed and intensified in the 1990s after the
constitutional regulation of the status of Regions and Communities as federated
entities. The federated entities have been eager to test their newly gained treaty
making competences and concluded international treaties mainly with sovereign states
– a strategy aimed at establishing themselves as federated states acting on an equal
166
167
level with sovereign states. It has to be noted that treaty relations of Belgian entities to
federated states with corresponding rights are largely absent.
Hierarchies characterised by a superior position of the federal government are
sometimes established in the field of external relations. Hierarchical relationships are
enforced between the orders in case the exceptionally strong position of the Belgian
federated entities in the field of treaty making is limited by external factors, in
particular by the attitude of foreign partners. Based on the analysis made in this
chapter we can conclude that foreign relations conducted according to a federal logic
have so far evolved following their own dynamics and remained uninfluenced by the
process of European integration. Consequently, no Europeanisation of federal
relationship structures in the field of foreign relations based on federal principles has
taken place so far. Instead, internal processes of federalisation in Belgium and the
constitutionalisation of foreign policy competences of federated entities have
determined relationships between federal and federated orders in this field.
As for foreign relations based on principles typical for multi-level governance, here
we have a different picture. Belgian federated entities’ relations on the cross-border
and inter-regional scale are to a large extent determined by the EU programs of cross-
border and inter-regional co-operation. This is so because the regulation of the
Belgian entities’ status on the constitutional level beginning of the 1990s took place
more or less at the same time with the launch of programs of regional integration by
the EU end of 1980s. These programs have on the one hand enforced institutionalised
and formalised ties between neighbouring entities across member state borders. On
the other hand they contributed to the establishment of ties between federal and
federated levels on the domestic arena. Interaction between the Permanent
Representation of Belgium to the EU and the regional and community authorities
became necessary to deal with questions related with INTERREG. These changes on
the cross-border as well as the domestic arena should be seen as an impact of Europe
on the dynamics of Belgian cross-border and inter-regional relations. Inter-regional
and cross-border co-operation conducted by the Belgian federated entities
independently of the European political and financial support are predominantly
restricted to non-binding bilateral agreements and non-formalised regional networks
such as that of constitutional regions established on the initiative of Flanders. Those
167
168
cross-border partnerships that existed before the launch of INTERREG in the area of
some Euregions, such as Scheldemond and Maas-Rijn, were integrated in the
INTERREG programs and increasingly subordinated to the responsibility of regional
authorities.
4.1.4.2 Germany
In the German federal practice of treaty making the institutional position of the
Federation is superior to that of the Länder. The federal government negotiates and
concludes the vast majority of treaties in fields of federated entities exclusive
competence. The number of treaties negotiated and signed by the Länder alone, as it is
the case in Belgium, is relatively limited in Germany (Beyerlin and Lejeune, 1994:
X).123 The Länder have signed exclusive treaties in fields of research and culture,
transport, hunting and fishery, environment protection, and water policy. Especially
active in the field of treaty making have been Baden-Württemberg, Bayern,
Niedersachsen, Nordrhein-Westfalen, Rheinland-Pfalz and Saarland. The first
international treaties were concluded by Bayern and Rheinland-Pfalz in 1950 (Stern,
1995: 257). It has to be noted that in the broadest majority of cases, the treaty partners
of the Länder are neighbouring states or federated entities that are parts of these
states. For example, Baden-Württemberg has concluded treaties with Swiss Cantons,
Switzerland and Austria. Bayern signed a number of international treaties with
Austria, as did Rheinland-Pfalz with Luxembourg (Beyerlin and Lejeune, 1994).
Treaties signed by the federal government in fields of Länder competence are
concluded either on the initiative of the Federation – as the treaty making power of
123 According to the information obtained via expert interviews, about 99 per cent of treaties in fields of exclusive competence of the Länder are concluded by the Federation (Interviews with German Länder officials, per telephone, May 2001; Berlin, June 2001). The book by Ulrich Beyerlin and Yves Lejeune (1994) is so far the only source that gives an exhaustive list and texts of binding and non-binding agreements (including treaties, contracts, declarations, common positions) signed by the German Länder under terms of the Basic Law till the end of 1993. As far as the five East German Länder are concerned, the collection includes only the agreements signed by Mecklenburg-Vorpommern and Sachsen. The collection of agreements entails a number of international treaties signed by the Länder with the consent of the federal government. The texts of the various agreements are accompanied by data that give relevant additional information with regard to the agreement in question. Although it is not always easy to differentiate between contracts and treaties, the additional data provided by the authors of the book give us useful insights in this respect. For example, it is clear that those agreements
168
169
German federated entities is a concurrent competence - or on the request of the
Länder. The Länder are not considered as contracting parties to such treaties, and the
latter are signed only by the federal authorities. However, federated entities have to be
informed and consulted in due time under terms of the Lindau Agreement. The
mechanisms of interaction between the Permanent Treaty Commission and the federal
government in this context are regulated neither by the Lindau Agreement nor by any
other document. However, certain mechanisms of inter-level co-ordination have been
established in practice. Positions of the Permanent Treaty Commission and the federal
government are normally co-ordinated via exchange of formal letters, since the treaty
commission meets only twice a year on average. On the federal level the Permanent
Treaty Commission communicates with the ministry which is supposed to sign the
treaty. Inter-level co-ordination starts when the respective federal ministry informs the
Head of the Permanent Treaty Commission on the treaty in question and sends him
the text of the treaty. The latter forwards the documents to the members of the
Permanent Treaty Commission. After the unanimous consent of the Länder is
achieved, the Head of the Treaty Commission informs the federal ministry about its
position.124 The process of horizontal inter Länder co-ordination is relatively time-
consuming. Since the Lindau procedure is not subject to any temporal restrictions, it
takes about a year on average until all the Länder have expressed their opinion,
whereby in certain cases horizontal co-ordination in the structure of the Permanent
Treaty Commission can take several years (Hartung, 1984: 88-89).
After the unanimous position of the Länder is formulated by the Permanent Treaty
Commission, the latter, based on this unanimous position, gives a recommendation for
approval or disapproval of the treaty in question to the governments of the Länder.
Once this is done, the Lindau procedure is terminated and it is up to every single Land
to communicate its position to the responsible federal ministry via a formal letter.125
Contrary to the Belgian practice of treaty making, in Germany treaties and contracts
that according to the additional data were given an explicit consent by the federal government and/or are registered at the United Nations are treaties under international law. 124 Interviews with German Länder officials, per telephone, May 2001; Berlin, June 2001 and May 2003.125 Interview with a German Länder official, per telephone, May 2001.
169
170
concluded jointly by federal and federated authorities are comparatively rare and
represent an exception rather than a rule.126
While negotiating treaties in fields of federated entities’ competence, the federal
government is dependent on the involvement of the Länder and can not act alone. It
has to be noted here that normally all the sixteen Länder participate in the federal
treaty making procedure via the Permanent Treaty Commission even if the Federation
signs a treaty for a single federated unit in fields of the latter’s exclusive competence.
This regulation serves the aim to strengthen the federal principle and maintain the
elements of federal symmetry within the system of co-ordination. In general terms,
co-ordination of treaty making procedures and interaction processes between the
Bund and the Länder in this framework takes place on a regular basis and functions
well. Both levels interact on an equal basis to determine the contents and the text of
treaties that fall within the competences of the Länder but are concluded by the
federal government.127 Representatives of federated entities are often involved in the
German delegation charged with the negotiation of such treaties. These Länder
authorities together with authorities from the federal government represent the Federal
Republic of Germany vis-à-vis the treaty partner (Hartung, 1984: 85-86).
Inter-level conflicts with regard to federal treaties, which lead to the refusal of
approval by the Länder in the Permanent Treaty Commission are extremely seldom.
In case federal and federated orders have divergent positions, the latter are co-
ordinated via non-formalised channels of communication, above all via phone-calls
and letters. It has been estimated that in about 99,9 per cent of cases the Permanent
Treaty Commission gives a recommendation to the Länder to approve the treaty in
question and the latter follow the recommendation. Out of all draft treaties dealt with
under terms of the Lindau Agreement between the first meeting of the Permanent
Treaty Commission in 1958 and today, there was only one case marked with
126 An example of such a joint international treaty concluded together by the Federation and a federated unit is Abkommen vom 13. Februar 1952 zwischen der Bundesrepublik Deutschland, Bayern und Österreich über die Donaukraftwerk-Jochenstein-Aktiengesellschaft. In this case no federal consent was required as the Bund was officially a party to the treaty. Another similar example is a treaty concluded in Isselburg-Anholt on 23 May 1991 between the Netherlands and the German federal government together with the Länder Niedersachsen and Nordrhein-Westfalen concerning cross-border co-operation between territorial entities and other public authorities (on this treaty see section 4.1.2.2 in this chapter). 127 Interview with a German Länder official, Berlin, June 2001.
170
171
institutionalised conflicts between the federal government and the Länder.128 This
happened in 1985 when the Bavarian government refused to give its consent to the
European Agreement on Violence and Misbehaviour of Spectators at Sports Events
although its representative in the Permanent Treaty Commission had contributed to a
unanimous recommendation of the Treaty Commission to the Länder to approve the
treaty. As a consequence of the refusal from the Bavarian side, the agreement in
question could not be presented to the Bundesrat for legislative approval of
ratification (Leonardy, 1993: 242).
This example illustrates that single federated units possess substantial negotiating
powers in the process of internal co-ordination even if they are officially not a party to
the treaty. However, it has to be noted that generally federated entities, even in case of
disagreement with the Federation, try to avoid situations where they alone may
become responsible for institutionalised confrontations between the federal
government and the Länder.129 In such cases the Länder normally show a considerable
degree of readiness to compromise and adjust their positions to that of the other
Länder and/or the federal government.130
We have mentioned that in case the Bund takes the initiative to conclude a treaty,
which in any way affects the interests and competences of the Länder, it
communicates the initiative and/or the text of the treaty to the Permanent Treaty
Commission. However, sometimes the treaty is subject to the ratification procedure
and dealt with in the Bundesrat according to Article 59, 2 BL without having passed
128 Interview with a German Länder official, Berlin, June 2001. 129 Interviews with German Länder officials, Berlin, May 2003. 130 The most recent example of such a compromise from the side of a single federated unit is the co-ordination procedure of the treaty between the Federal Republic of Germany and Russia on co-operation in fight against serious crime (for example terrorism or drug trafficking). The inter-level controversy started because the federal government did not inform the Länder on the treaty, which, according to it, did not touch upon the competences of the Länder. As the Länder found out that the federal government was negotiating the treaty with Russia, they asked for participation in the treaty making procedure under terms of the Lindau Agreement. According to the opinion of the Länder the treaty in question envisaged co-operation between police authorities of the two treaty partners and, since police is a federated competence in Germany, the Lindau procedure had to be applied. The Länder managed to convince the Federation to start the Lindau procedure. However, it turned out to be difficult to reach unanimity among the Länder in the Permanent Treaty Commission because two ministries of Baden-Württemberg, the Ministry of Justice and the Ministry of Interior, disagreed on whether to approve the federal treaty or not. Since Baden-Württemberg did not want to be held responsible for the blockade of the whole treaty making procedure, a compromise had to be found on the Land level. Finally, in March 2003 Baden-Württemberg gave its formal consent to the treaty (Interview with a German Länder official, Berlin, May 2003).
171
172
through the Permanent Treaty Commission (Stern, 1995: 262). In case this happens,
the Länder could theoretically block the ratification procedure of the treaty in the
Bundesrat. However, in practice this mechanism is not applied by the Länder. In order
to avoid institutional confrontation between the Bundesrat and the respective organs
of the federal government, the Permanent Treaty Commission is normally involved at
a later stage.131 The Länder also have the possibility to apply to the Federal
Constitutional Court in case the federal government refuses to involve them in the
federal treaty making procedure. However, as the Lindau Agreement is not binding,
the Constitutional Court does not have the right to make its decisions based on this
Agreement. Hence, it is difficult to foresee whether a decision by the court with
regard to treaty making would strengthen or weaken the position of the Länder in this
field. Due to these circumstances the Länder have so far never applied to the Federal
Constitutional Court.
The German Länder have also developed external relations based on different types of
written documents that do not have a status of international treaty. Since the 1950s
they have concluded various binding and non-binding agreements. For example,
Baden-Württemberg signed contracts among others with Switzerland in 1957, with
the Canton of Schaffhausen in 1969, with the Canton of Aargau in 1983 and 1987,
with France in 1991, and together with Rheinland-Pfalz and Saarland with French
territorial entities in 1992. Some of these relations were developed in the framework
of interstate agreements to which Germany was a party (for more examples of
agreements concluded by other German federated entities see Beyerlin and Lejeune,
1994).
131 Interview with a German Länder official, per telephone, May 2001. For example, the federal government signed an international treaty with France, Luxembourg and the Swiss Bundesrat that acted in the name of the Cantons of Solothurn, Basel-Stadt, Basel-Landschaft, Aargau and Jura in Karlsruhe on 23 January 1996 (also referred to as the Agreement of Karlsruhe). The treaty regulates cross-border co-operation between territorial entities. The federal Foreign Office informed the Permanent Treaty Commission about this treaty on 12 February 1996, only after the treaty had been signed by the German Foreign Minister, and asked the Commission to express its position according to Point 3 of the Lindau Agreement. Although the treaty only concerned the three Länder, Baden-Württemberg, Rheinland-Pfalz and Saarland, the Permanent Treaty Commission gave a recommendation to the sixteen Länder to approve the treaty. As mentioned above, normally all Länder participate in the federal treaty making procedure under terms of Lindau, even if the federal treaty concerns only some of the federated entities. At a later stage the Länder also expressed their formal consent via the Bundesrat (Interview with a German Länder official, Berlin, May 2003).
172
173
Cross-border activities of the German territorial entities under Basic Law started in
the 1950s, when the first bilateral cross-border establishments in the European space
emerged on the Dutch-German border. Since the 1970s the German Länder have been
intensively participating in multilateral cross-border establishments in the Alpine
Area and around the Lake of Konstanz (Bodensee) such as the Working Community
of the Alpine Countries, the Alps Adriatic Working Community and the International
Conference of the Lake of Konstanz (Internationale Bodenseekonferenz).
The Working Community of the Alpine Countries (Arbeitsgemeinschaft Alpenländer
(ARGE Alp)), which is the first cross-border and inter-regional establishment within a
specific geographic area, was founded in 1972. It comprises eleven German, Austrian,
Italian and Swiss regional entities. From the German side Bavaria and Baden-
Württemberg are members of the ARGE Alp. The legal basis of the working
community is its Statute. According to the Statute, the aim of the working community
is to achieve various common goals of the participating entities by means of a
minimal degree of institutionalisation (Article 1, Statute of the Working Community
of the Alpine Countries). The institutional structure of the ARGE Alp is composed of
a conference of the heads of governments, four specialised commissions for transport
and traffic, agriculture and environment, culture and society, and economy and
employment, a number of working groups, a steering committee (Leitungsausschuß)
and a secretariat. The Working Community of the Alpine Countries does not have a
legal personality and its decisions, taken unanimously, are not binding for its
members (Schmitt-Egner, 2000: 175-181).132
The Alps Adriatic Working Community (Arbeitsgemeinschaft der Länder und
Regionen der Ostalpengebiete (ARGE Alpen-Adria)) was founded in 1978 and has 19
members including German and Austrian Länder, Swiss Cantons, Italian Regions and
Autonomous Regions, Hungarian Comitats, Croatia and Slovenia. Bavaria is the only
German Land participating in this working community. Whereas ARGE Alp is
concentrated on the western part of the Alpine area, AGRE Alpen-Adria covers the
132 Apart from fostering cross-border co-operation, ARGE Alp serves common interests of the Austrian Tirol and the Italian South Tirol. The establishment of this working community facilitated the reopening of the border dividing the historical province of Tirol and the development of contacts and co-operation between the two parts of Tirol at least in a restricted number of fields, such as culture or journalism.
173
174
eastern parts of the Alps. Like the ARGE Alp, the Alps Adriatic Working Community
has no legal personality. Its guiding principles and goals are formulated in a Common
Declaration (Gemeinsame Erklärung), which is not binding for the members. The
institutional structure of the working community comprises a conference of the heads
of governments, a commission of higher officials, five standing committees and a
central information office located at the government of the Austrian Land Kärnten
(Schmitt-Egner, 2000: 155-163).
The Working Community of the Danube Countries with its 23 member entities is
characterised by similar features. It was founded in 1990 and unites states and
territorial entities along the river Danube including the German and Austrian Länder,
Hungarian Comitats, the Republic of Croatia, Serbia, and Rumanian, Bulgarian and
Ukrainian territorial entities. From the German side Baden-Württemberg and Bavaria
are members of the community. The Statute of the working community is called
Common Declaration (Gemeinsame Erklärung), according to which one of the
characteristic features of the community is its minimal degree of institutionalisation
(Article 4, Common Declaration of the Working Community of the Danube
Countries). Decisions in the institutional set-ups of the working community133 are
made according to unanimity rules and have the status of recommendations. This
means that they are legally not binding. Co-operation with INTERREG is one of the
priorities of the Working Community of the Danube Countries (Bergsmann, 1998:
196; Schmitt-Egner, 2000: 254-255).
The International Conference of the Lake of Konstanz (Internationale
Bodenseekonferenz (IBK)), which is now part of the cross-border co-operation area
called ‘Regio Bodensee’,134 was founded in 1972 in Konstanz, Germany. The
initiative to create this conference was taken by the German Land Baden-
Württemberg. The activities of IBK comprise environmental affairs, traffic, economic
133 The institutional set-ups of the Working Community of the Danube Countries are very similar to the institutional arrangements of other working communities described in this section. They consist of a conference of the heads of governments, a working group of leading civil servants, a secretariat and a number of sector-oriented working groups. 134 According to Müller-Schnegg, in 1994 there were more than 250 institutions and establishments of cross-border co-operation in the area of the Lake of Konstanz. In the beginning of 2000 there were more than 3,5 million people living in the ‘Regio Bodensee’. Scherer and Schnell point out that the history of the Lake of Konstanz area as a region with its own identity started in the 19th century, around 1850 (Scherer and Schnell, 2002: 503-508).
174
175
affairs, education, health care and culture. It has a conference of the heads of
governments, a permanent committee, a secretariat, seven specialised commissions
and a number of working and project groups (Scherer and Schnell, 2002: 511). The
Council of the Lake of Konstanz, founded in 1991, is not an integral part of the IBK’s
organisational structure, but has co-operative links with it. The IBK integrates 10
territorial entities of three predominantly German-speaking federal states Germany,
Austria and Switzerland and, since 1998, Liechtenstein. The IBK was a largely non-
formalised body up until 1994 when a statute and guiding principles, the so-called
Bodenseeleitbild, were adopted by its member entities. This document has a status of
a political declaration and is legally not binding. All decisions in the organs of the
IBK are taken by unanimity.
The cross-border set-ups described above are weakly institutionalised bottom-up
establishments without a legal personality. They are normally based on statutes,
which are legally not binding, but in practice strictly followed by the participating
entities. The German Länder developed their external ties in the framework of these
cross-border establishments without any formalised or institutionalised involvement
of federal authorities in these relations. The latter evolved according to principles
characteristic for multi-level governance. Hereby it has to be mentioned that the two
working communities in the Alpine area and the IBK were established independently
of any support from the side of the EU long before the EU Commissions’ program
INTERREG was launched. Today, no financial support is given from the EU directly
to these cross-border and inter-regional set-ups. However, parts of these bodies are
integrated in various programs of INTERREG.
Although the German Länder have been intensively involved in cross-border
relationships since the 1970s, the European Union’s initiative INTERREG
transformed and diversified such links. It first contributed to the establishment of
formalised and institutionalised cross-border entities and second facilitated a
geographical diversification of cross-border ties. Whereas up until the end of 1980s
cross-border relationships were conducted predominantly around the Alpine area and
the Lake of Konstanz by Bavaria and Baden-Württemberg, and on the Dutch-German
border, since the end of the 1980s INTERREG made it possible for a higher number
of German federated entities to participate in various cross-border programs. In the
175
176
framework of INTERREG III, eleven Länder participate in programs of cross-border
co-operation. The latter cover not only the southern borders of Germany, but also its
borders with Belgium, Luxembourg and the Netherlands as well as with Central
European states such as Poland and the Czech Republic (Schmitt-Egner, 2000: 262-
263).
In 2003 Germany is participating in 25 INTERREG III programs. 17 programs are
conducted under strand A, five - under strand B and three - under strand C. In the
framework of INTERREG programs the federal government of Germany and namely
the Federal Ministry of Economy and Labour is the main contact authority for the EU
Commission. The overall co-ordination of all the three strands of INTERREG III lies
under the responsibility of the Ministry of Economy and Labour. Specialised co-
ordination of strands A and C is done by the Ministry of Economy and Labour
whereas under strand B co-ordination tasks are shared by the latter and the Federal
Ministry of Transport. On the formalised level the EU Commission communicates
with federated entities via the federal government. However, on the personal level it
has well-developed contacts with the Länder and in particular with the their ministries
charged with matters related to INTERREG.135
Although the Federation is officially held responsible for INTERREG-related issues
before the Commission, the Länder play a substantial role in the preparation and
administration of INTERREG programs. Program proposals are normally prepared by
the secretariats of those cross-border and inter-regional establishments that apply for
these programs. Although the proposals are officially submitted by the federal
government to the Commission, the Länder are responsible to check the proposals and
propose modifications if needed. As for the financial aspect, the financial share of
Germany, i.e. INTERRREG-related costs not covered by the European Commission,
is divided between the Länder and the local territorial entities. The federal
government normally does not make financial contributions to INTERREG programs
except for ad hoc financial participation of the Ministry of Transport in programs of
trans-national co-operation under strand B. In case the administration of cross-border
135 Interviews with German federal officials, per telephone, July 2002; Berlin, May 2003.
176
177
programs lies on the German side, this task is under the responsibility of one of the
ministries of the participating Länder.136
The representation of German territorial entities in the institutional structures of
INTERREG varies in strands A, B and C. Under strand A the Steering and
Monitoring Committees are composed of representatives of the Länder and the local
territorial entities involved in the respective programs, the EU Commission, social-
and economic partners and the programs’ institutions, such as secretariats and
administrative authorities. The federal government is represented only in Monitoring
Committees but not in Steering Committees. Under strands B and C, federal
representatives participate in both Steering and Monitoring Committees. Whereas the
Federal Ministry of Economy and Labour is involved in Monitoring Committees
created under strand B, the Federal Ministry of Transport represents the federal level
in Steering Committees.137
Decisions in Steering and Monitoring Committees are taken by consensus and are
binding for the participating entities. Although the representation of single states in
these committees may be decentralised, as it is the case in Germany, each represented
state has to speak with one voice. This leads to increased co-ordination between the
levels in the field of cross-border and inter-regional co-operation. Hereby, the
intensity of inter-level co-ordination is relatively low for programs under strand A,
because these programs operate predominantly in fields of competence regulated in
Germany by the Länder. Consequently, the Länder play a key role and perform
financial and administrative tasks in the framework of cross-border co-operation
under strand A. Compared to strands B and C, under strand A the representatives of
the federal government are involved in the internal co-ordination of cross-border co-
operation to a lesser extent.138
Under strands B and C, the so-called sub-committees have been created for each
INTERREG program in order to co-ordinate the German position on the internal
level. In strand A, a comparatively limited involvement of the federal government in
136 Interviews with German federal officials, Berlin, May 2003. 137 Interview with a German federal official, Berlin, May 2003. 138 Interview with a German federal official, Berlin, May 2003.
177
178
programs of cross-border co-operation made the creation of such sub-committees
superfluous. Each sub-committee has its own standing orders (Geschäftsordnung).
The sub-committees meet three to four times a year and are responsible for the
preparation of the meetings of the Steering and Monitoring Committees. Whereas the
sub-committees for the programs of INTERREG III B are chaired by the Länder, the
Federal Ministry of Economy and Labour chairs the meetings of sub-committees
under strand C.139
Each INTERREG program is developed on the basis of the so-called INTERREG
agreements signed by the participating entities. For programs under strand A, the
Länder sign these agreements with their partners across the border. For programs
under strands B and C, the federal government signs the agreements, but co-ordinates
positions with the Länder in advance. INTERREG agreements are signed either
between the states participating in the program or between the states and the
INTERREG institutions. Although the guidelines of the European Commission for
INTERREG programs (see above) envisage the signature of such agreements, their
legal status remains unclear. These agreements do not have the status of a treaty under
terms of international law. The signature of international treaties was avoided on
purpose in order to escape long institutionalised procedures of co-ordination and
ratification on the domestic level. In practice, INTERREG agreements are normally
called memorandums of understanding or letters of agreement, and are binding for the
parties involved. However, it is often unclear under terms of which law they are
binding. In the case of a legal dispute among the parties to the agreement in would be
difficult to determine which courts had the responsibility to settle the dispute. Since
there have been no legal controversies so far, questions of legal nature related to
INTERREG agreements remain unclear. It is up to each state to decide who signs
such agreements. From the German side they are often signed on the administrative
level.
As mentioned in earlier sections of this chapter, since the 1990s a number of bilateral
and multilateral treaties have been signed between neighbouring European states that
contributed to the formalisation of cross-border co-operation of territorial entities in
139 Interview with a German federal official, Berlin, May 2003.
178
179
geographically restricted areas. By formalisation we mean the regulation of questions
related to cross-border co-operation by means of legal documents and the creation of
possibilities for territorial entities to conduct cross-border relations within various
legal frameworks. In this respect three treaties under terms of international law have
to be mentioned that are relevant for the German context: the Agreement of Isselburg-
Anholt signed in 1991, the Agreement of Mainz signed in 1996 and the Agreement of
Karlsruhe signed in 1996 (see also section 4.1.2.2). The first two agreements regulate
cross-border relations of communal territorial entities under terms of public law. The
Agreement of Karlsruhe, on the contrary, explicitly empowers the Länder Baden-
Württemberg, Rheinland-Pfalz, Saarland and the Swiss Cantons to sign agreements
other than those binding under terms of international law with each other and with the
communal territorial entities referred to in the treaty (for more details on these three
agreements see Niedobitek, 2001: 106-110).
Although the subject matters regulated by these treaties concern the prerogatives of
the Länder, different ways have been chosen by the German federal and federated
levels to sign the treaties. The Agreement of Karlsruhe was signed by the federal
government and the Länder gave their approval to the treaty under terms of the
Lindau Agreement.140 The Agreement of Isselburg-Anholt was signed together by the
federal government and two German Länder. Such a method is rather exceptional for
the German practice of treaty making.141 As for the Agreement of Mainz, as
mentioned above, from the German side it was signed by the two Länder, Nordrhein-
Westfalen and Rheinland-Pfalz.
In contrast to cross-border relations of the German Länder, which have about half a
century long history including various forms of intensive partnership starting in the
1950s, inter-regional contacts were developed and intensified comparatively late, in
140 The fact that the Agreement of Karlsruhe was not signed by the governments of the Länder affected by the treaty (Baden-Württemberg, Rheinland-Pfalz and Saarland) is due to the French position, according to which this agreement was to be concluded by the central or federal governments of the states (Hrbek, 1998: 241). 141 As we mentioned above, whereas in Belgium the majority of treaties signed by the federated entities are mixed treaties, in Germany the vast majority of treaties in fields of federated entities’ competence are concluded by the federal government. The Länder participate in the treaty making procedure on the domestic level under terms of the Lindau Agreement.
179
180
the 1980s.142 In the field of inter-regional co-operation with regional entities of the
EU member states Bavaria and Baden-Württemberg have been the most active Länder
so far. The majority of bilateral inter-regional partnerships of the German federated
units are conducted with Italian, French and Spanish regional entities (Eißel, Grasse,
Paeschke and Sänger, 1999: 147-148). Inter-regional relations between the German
and the Belgian federated entities based on contracts under terms of domestic law are
limited to relations between Flanders and Baden-Württemberg. Due to the
geographical proximity, Nordrhein-Westfalen has cross-border co-operation with
Flanders and Wallonia, and Rheinland-Pfalz does the same with the German-speaking
Community of Belgium (Eißel, Grasse, Paeschke and Sänger, 1999: 149).
As far as multi-lateral co-operation among regional entities is concerned, the so-called
‘Four Motors for Europe’ has to be mentioned. This rather loose inter-regional
working community without an institutionalised structure was established in 1988 by
Baden-Württemberg (Germany), Rhône-Alpes (France), Lombardy (Italy) and
Catalonia (Spain).143 Later on Wales and Ontario became associated members of the
working community. In the German context this establishment has a special meaning,
as it is the first multilateral inter-regional co-operation, in which the German
federated entities are involved (Fischer and Frech, 2001: 9).
To summarise, external activities of German federated entities have been dominated
by principles characterising multi-level governance rather than by federal principles.
Despite the fact that under the Basic Law the German Länder have always had the
constitutional competence to conclude international treaties, the number of such
treaties is relatively limited. Hereby treaty relations are mainly restricted to
neighbouring states such as Switzerland, Austria and France. The treaty making in
fields of Länder competence is dominated by the federal government and the Länder
participate in federal treaty making procedures via specifically designed institutional
structures. As for relations conducted according to a multi-level governance logic, the
German federated entities started such relations in the 1950s and have been actively
142 It has to be mentioned that the only exception is inter-regional co-operation between Rheinland-Pfalz and Burgundy that started in 1962 (Eißel, Grasse, Paeschke and Sänger, 1999: 148). 143 Within their states, these regions are economically relatively strong entities with unemployment rates lower than the national average, accumulation of high technology, well-developed export industry and research facilities.
180
181
involved in cross-border and inter-regional partnerships since the 1970s. Without any
participation from the side of the federal government the Länder have established
cross-border and inter-regional contacts with various entities beyond the state border.
It is notable that these contacts started to develop before the EU had launched
programs in support of inter-regional and cross-border co-operation.
A certain degree of Europeanisation in the field of federated entities’ external
relations took place as a result of the EU Commission’s initiative INTERREG. The
process of European integration had an impact on the nature of cross-border and inter-
regional relations. Europeanisation found its expression in the formalisation and
institutionalisation of regional partnerships in the framework of INTERREG and
Euregion structures. Apart from that, contrary to weakly formalised cross-border
relationships developed since the 1970s, the EU-supported cross-border
establishments lead to the involvement of federal authorities in cross-border
structures. Such a pattern is different from the Belgian practice, where the
involvement of federal authorities is excluded from cross-border bodies created in the
framework of INTERREG. Thus, the impact of Europe on federal relationship
structures in Germany has been the intensification of ties between federal and
federated orders on the domestic level and, consequently, the limitation of the
autonomy of federated entities in the field of cross-border relations.
4.1.4.3 Austria
While conducting external relations, the Austrian Länder have not been fully utilising
the legal resources available to them. Throughout a decade and a half of its existence,
Article 16 B-VG, which allows the Länder to conclude international treaties with
neighbouring states and federated entities, has never been applied in practice.144 Being
important on the legal level, Article 16 remains irrelevant in the political practice of
foreign policy making. Surprisingly enough, the Länder, whose initiative and priority
it was to constitutionally regulate their treaty making competence, undertook but one
unsuccessful attempt to conclude an international treaty under terms of Article 16 B-
144 Interviews with Austrian federal and Länder officials and academics, Vienna, November 2001.
181
182
VG. This attempt, made by the two Länder Steiermark and Kärnten in 1991, was
aimed at signing a treaty with Slovenia on mutual aid in cases of catastrophe (Institut
für Föderalismusforschung in Innsbruck, 1997: 137).145 The federal government gave
its authorisation to the respective organs of Steiermark and Kärnten to start treaty
negotiations (Hammer 1999: 13, for more details see Hammer 1992: 57, footnote 53).
Although the negotiations started in 1991, they failed and the treaty has not been
concluded.
As the practice of treaty making shows, the Austrian Länder have not demonstrated
much interest in putting in practice their constitutionally regulated treaty making
competence. There are two main reasons for the very limited practical importance of
Article 16 B-VG, and the reluctance from the side of the Länder to develop their
foreign relations on the basis of international treaties. First, the procedural
arrangements with regard to treaty making are relatively complicated. They would
lead to long co-ordination processes between the Federation and the Länder, which
finally would result in a treaty negotiated by the Länder but signed by the Federation.
Second, as mentioned above, according to Article 17 B-VG the Austrian federated
entities have the right to develop external relations under terms of domestic law.
Regulating their foreign contacts by means of domestic legal mechanisms the Länder
can avoid the complicated procedures of inter-level co-ordination related to the
negotiation of international treaties.
Thus, the introduction of the new article into the Austrian constitution in 1988 has
changed nothing in practical terms concerning the federalisation of foreign policy
making. Foreign relations, including treaty making in federated entities’ fields of
competence, have so far been conducted exclusively by the Austrian federal
government. The Länder have never utilised the constitutionally codified instruments
of foreign policy making, which necessitate inter-level co-ordination. Hence, in the
Austrian case it becomes superfluous to differentiate between two types of foreign
relations - the one conducted according to federal principles and the other based on
principles of multi-level governance – and their implications on federal relationship
structures.
145 In German, Vertrag über Benachrichtigung und Hilfeleistung bei Elementarereignissen undUnglücksfällen (Institut für Föderalismusforschung in Innsbruck, 1997: 137).
182
183
Various positions are advocated by scholars of federalism and practitioners with
regard to international legal personality of the Austrian Länder. The question, whether
the introduction of Article 16 into the Constitution means that the Länder have since
then the potential status of subjects of international law, remains controversial. The
two conditions for being a subject of international law (even to a limited extent), as
mentioned in earlier parts of the study, are not fulfilled in Austria to a sufficient
extent. This concerns the second condition, according to which a federated entity
becomes a subject of international law only after it has concluded at least one
international treaty and thus has become the bearer of certain rights and
responsibilities under terms of international law (Van den Brande, 1998; Hammer,
1992: 12). This can happen only when the potential treaty partners agree to enter into
treaty relations with federated entities. The recognition of the international personality
of federated entities is not guaranteed through the international recognition of a
federal state, the constitution of which gives treaty making competences to federated
entities (Hammer, 1999: 12, footnote 44; Hammer, 1992: footnote 35).
Hammer defends the idea that because the Austrian Länder have never made use of
Article 16 B-VG, it should be concluded that their international personality has a
potential character (Hammer, 1999: 13). However, having made such a conclusion,
Hammer does not deny in principle that the Austrian Länder may be regarded – to a
limited extent - as subjects of international law. This view is shared by Theodor
Öhlinger too.
Contrary to Hammer’s position, Berchtold defends the view that the Länder in Austria
do not even have the potential status of subjects under terms of international law. He
justifies this point of view by emphasising the fact that actually the federal
government concludes treaties in fields of Länder competence. Berchtold points out
that the right to conclude an international treaty should be understood as the
responsibility for the entire treaty making procedure from the initiative till the
conclusion of the treaty (Berchtold, 1989: 218-219). According to Article 16 B-VG,
on the contrary, the Länder avail of only certain limited competences in the treaty
making procedure, which are restricted to the initiation of the treaty and the
concretisation and negotiation of the treaty text (for details see above). The right to
sign the treaty remains under the federal responsibility.
183
184
While the Austrian Länder have been rather passive in the field of treaty making, each
of them has a number of bilateral co-operative relations with states and regional
entities in Western, Central and Eastern Europe as well as in the United States, China
or South Africa (for a list of bilateral partnerships of the Austrian Länder see
Bergsmann, 1998: 197). In case such relations are developed on a legally binding
basis, the Länder normally act as subjects of private law in accordance with Article 17
B-VG and develop their external relations without the involvement of federal
authorities.
As far as multilateral external relations of the Austrian federated entities are
concerned, the latter belong to co-founders and active members of first multilateral
inter-regional and cross-border establishments in the European space, namely in the
Alpine area and around the Lake of Konstanz (see above). Established in the 1970s,
these set-ups date back to times preceding the introduction of Article 16 into the
constitution as well as the Austrian membership in the EU. The Austrian Länder
Tirol, Salzburg and Vorarlberg are members of the Working Community of the
Alpine Countries. Burgenland, Kärnten, Oberösterreich, Steiermark and Salzburg (the
latter as an observer) participate in the Alps Adriatic Working Community whereas
Oberösterreich, Niederösterreich, Wien and Burgenland are involved in the Working
Community of the Danube Countries. Vorarlberg is a member of the International
Conference of the Lake of Konstanz (Internationale Bodenseekonferenz).146
With Austrian membership in the European Union a number of possibilities were
open for the Länder to intensify their cross-border and inter-regional links with
entities of other European states through establishing and deepening regional
partnerships in the framework of the EU Commission’s initiative INTERREG. Since
1995 the Austrian regional and local entities have been increasingly participating in
this initiative. The Austrian entities are involved in seven programs of cross-border
co-operation within INTERREG III A. Three of these programs have been designed
for the internal borders of the EU. Four programs are aimed at developing cross-
border co-operation on the external borders of the European Union and at establishing
146 For more information on these establishments see the previous section on external relations of German federated entities.
184
185
contacts between the Austrian territorial entities and those of Central and Eastern
European states.
Since this study has chosen the European Union as its geographical framework, it will
further concentrate on INTERREG programs designed for the internal EU borders.
Within the framework of INTERREG III A, the Länder Kärnten and Tirol are
participating in the program Austria-Italy. Oberösterreich, Salzburg and Tirol are
involved in the program Austria-Bavaria. The program named Alpenrhein-Bodensee-
Hochrhein includes, apart from Vorarlberg, the German Länder Bayern and Baden
Württemberg, Liechtenstein and some eastern Swiss Cantons whereby the latter do
not receive any funding from the EU. Regarding the administration of INTERREG
programs under strand A, different regulations have been established in Austria
according to the geographical scope of the co-operation. INTERREG programs
designed for the internal borders of the EU are administered by the Länder without
any involvement of the federal level. Within the programs for the external EU borders
the Bund is the administrative authority.147
Whereas various entities at the Länder and communal level are involved in the cross-
border institutional structures created under strand A of INTERREG III, federal
authorities are not represented in these structures. The federal government leaves the
management of programs of cross-border co-operation up to the Länder.148 The so-
called Euregions – also referred to as regional development organisations in the
Austrian context - emerged already in 1995, soon after Austria joined the EU.149
147 Interview with an Austrian federal official, Brussels, July 2002. Such a division of responsibilities between the Bund and the Länder was supported by authorities on both levels. It is due to the fact that INTERREG programs on the external EU borders incorporate questions related to the EU enlargement. As the Austrian Länder do not feel competent to deal with such issues on their own, the federal government is held responsible for the administration of the programs (Interview with an Austrian federal official, Brussels, July 2002). 148 Interview with an Austrian federal official, Brussels, July 2002. 149 For example the ‘Euregion Salzburg-Berchtesgadener Land/Traustein’ was founded in 1995 and integrates 86 local territorial entities from Bayern (Germany) and Salzburg (Austria), two Landkreise (parts of Länder) as well as the chamber of economy of Salzburg. It has 12 working groups. Other cross-border establishments with the participation of the Austrian Länder are ‘Inn-Salzbach-Euregion’ founded in 1995, ‘Europaregion Tirol’ founded in 1998, ‘Euregion Bayerischer Wald/Böhmerwald’, ‘Euregion Allgäu-Außerfern-Kleinwalsertal-Bregenzerwald’ founded in 1997, ‘Euregion Wetterstein-Karwendel-Zugspitze’ founded in 1998 and ‘Euregion Inntal’ founded in 1998 (Institut für Föderalismusforschung in Innsbruck, 1999: 150-153).
185
186
As for INTERREG III B (trans-national co-operation), the entire territory of Austria is
eligible for two programs of trans-national co-operation. The first is called ‘Alpine
Space’ and includes apart from Austria German, French and Italian territorial entities.
The second is called ‘Cadses’ (Central Adriatic Danubian South Eastern European
Space) and involves apart from Austria Greece, a number of German Länder and
Italian territorial entities.150 In the framework of INTERREG III C (inter-regional co-
operation) Austria belongs to the zone East, the managing authority of which is the
Land of Vienna.
In the framework of INTERREG, the Austrian federation is represented towards the
EU Commission by the Federal Chancellery. The latter is charged with co-ordination
of positions between the federal government and the Länder. In particular the
department ‘Co-ordination – Spatial Planning and Regional Policy’ of the Federal
Chancellery is responsible for co-ordination of INTERREG matters. An important
institution dealing with issues related to INTERREG is the Austrian Conference on
Spatial Planning (Österreichische Raumordnungskonferenz (ÖROK)). This non-
formalised establishment, which does not have a legal basis, has been set up by the
Federal Chancellery, the Länder and the local communities (Gemeinden). Originally
the conference was responsible for co-ordination of issues linked with spatial planing
and economic development. After the launch of the INTERREG program by the
European Commission, questions related to INTERREG were also subordinated to the
conference. It functions as a link between the Bund and the Länder above all on the
administrative level. It has a manager of the Bund (Geschäftsführer des Bundes) and a
manager of the Lander (Geschäftsführer der Länder).151 The office of the Austrian
Conference on Spatial Planning is established at the Federal Chancellery.
150 Apart from the EU member states these two programs involve to various degrees a number of Central and Eastern European states, Switzerland and Liechtenstein. ‘Alpine Space’ has ties with Slovenia, Switzerland and Liechtenstein. ‘Cadses’ co-operates with Albania, Bosnia-Herzogowina, Bulgaria, Serbia and Montenegro, Croatia, Macedonia, Moldova, Poland, Romania, Slovakia, Slovenia, Czech Republic, Hungary, and parts of Turkey and the Ukraine. 151 The executive body of the Austrian Conference on Spatial Planning on the political level is composed, under the chairmanship of the Federal Chancellor, of all federal ministers and Länder governors, the presidents of the Austrian Union of Towns (österreichischer Städtebund) and the Austrian Union of Communities (österreichischer Gemeindebund), and of the presidents of social and economic partners as advisors. At the administrative level there is a Commission of Deputies (Stellvertreterkommission) as well as several committees and working groups, composed of senior officials of territorial authorities and social and economic partners (see www.oerok.gv.at).
186
187
To summarise, external relations of Austrian federated entities are not conducted
according to a federal logic. They are not based on constitutional instruments of
foreign policy making that necessitate formalised inter-level interaction, such as treaty
making powers. Instead, the Austrian federated entities have concentrated on cross-
border and inter-regional relations without putting these on a treaty basis under
international law. As such relations are conducted without any involvement of federal
authorities and are based on direct interaction of the Austrian Länder with their
partners, they are conducted according to principles characteristic for multi-level
governance rather than according to a federal logic.
External relations determined by the logic of multi-level governance and normally
characterised by a low degree of formalisation and institutionalisation dominated the
foreign policy making of the Austrian federated entities from the 1970s up until
Austria’s accession to the EU in 1995. Since the mid-1990s the federated entities’
contacts on a cross-border level have become increasingly formalised,
institutionalised and accompanied by processes of interaction between federal and
federated orders. Such inter-level processes were absent in the framework of external
relations conducted by the federated entities in the 1970s and 1980s.
4.1.5 Summary and conclusions
This chapter analysed external relations of Belgian, German and Austrian federated
entities conducted in the geographical framework of the European Union. It
differentiated between two types of external relations – those developed according to
federal principles based on constitutional treaty making competences and those based
on principles typical for multi-level governance – and attempted to find out whether
the process of Europeanisation affects these two types of external relations in different
ways. A special emphasis has been laid on the comparative examination of
relationships established between Belgian, German and Austrian federal and federated
orders as a result of federated entities’ foreign policies. These relationships have been
analysed from the point of view of two theoretical concepts – hierarchy and
interdependence. Whereas the first is based on unilateral lines of dependence of lower
levels on upper ones and is structured around supervision and control exercised from
187
188
above, the second concept emphasises mutual dependence of various entities on each
other.
Based on the comparative analysis with the aspects outlined above in mind, we can
make two sets of conclusions. The first of them refers to external relations of
federated entities conducted according to federal constitutional principles. It has to be
concluded that there are no links between such relations of Belgian, German and
Austrian federated entities and the EU-supported external activities of these entities
on the cross-border and inter-regional scale. The establishment and intensification of
the latter since the end of the 1980s did not substitute but rather complemented the
former. Although the federated entities of all three federal states under consideration
in this study possess certain mechanisms to develop foreign relations based on federal
principles, the practical significance of these mechanisms is different in each federal
state and remains uninfluenced by European dynamics.
The constitutional regulation of foreign policy competences of Belgian Communities
and Regions beginning of the 1990s broadly coincided with the launch of regional co-
operation programs by the EU end of 1980s. This parallelism in time has not
influenced the choice of mechanisms by the federated units to regulate their foreign
relations. Constitutional instruments of foreign policy making such as treaty making
competences have not been used by the Belgian entities to develop cross-border and
inter-regional relations. Nor have Communities and Regions developed external
contacts under terms of international law to federated entities with corresponding
rights such as German and Austrian Länder or Swiss Cantons. Instead, international
treaties have been concluded by the Belgian federated entities with neighbouring EU
member states such as France, the Netherlands and Luxembourg as well as with a
number of sovereign states in Central and Eastern Europe, Africa, and Latin America.
The situation in Germany is different. Although the German Länder under the Basic
Law always possessed constitutional competences in the field of foreign policy and
the right to conclude international treaties, they have rarely conducted foreign
relations based on these constitutional mechanisms. Moreover, their external relations
under terms of international law have been predominantly restricted to relations with
neighbouring states or federated entities. The intensity and scope of such relations
188
189
remained uninfluenced by the process of European integration and the opportunity
structures provided by the latter in the field of federated entities’ external relations.
As for the Austrian federated entities, they were granted constitutional treaty making
powers before Austria’s membership in the EU. These competences have not been
used by the Länder either before or after the accession to the EU to develop foreign
relations according to federal principles.
This analysis shows that the foreign relations of Belgian, German and Austrian
federated entities based on federal principles have developed according to their own
dynamics. The European Union’s policies with regard to regions and their cross-
border and inter-regional relations did not have any substantial influence either on the
creation of domestic constitutional mechanisms of foreign policy making in the three
federations or on the use of these mechanisms by the federated entities.
The second set of conclusions refers to foreign relations based on principles
characteristic for multi-level governance. Such relations are conducted by federated
entities on the cross-border and inter-regional scale and normally evolve without the
involvement of federal authorities. As far as Belgium is concerned, we have seen that
cross-border and inter-regional ties of Regions and Communities in the geographical
framework of the European Union remain predominantly limited to the EU-supported
relations within the framework of INTERREG programs. Bilateral cross-border and
inter-regional contacts of the Belgian federated entities outside the EU-supported
structures are scarce whereas strategies aimed at developing multilateral regional
networks have gained relevance since 2000. It has to be noted that such networks are
neither formalised nor institutionalised and evolve on the basis of declarations made
at various meetings of regional authorities.
The situation is different in Germany and Austria. Since the 1970s the German and
Austrian federated entities have significantly intensified external relations on the
inter-regional and cross-border scale. There are no notable links between these
external relations of federated entities and the processes taking place on the EU level
with regard to the regional dimension of the Union. Cross-border and inter-regional
relations of the German and Austrian Länder followed the logic of multi-level
189
190
governance in the sense that they evolved on the basis of direct links of the federated
entities to cross-border and inter-regional establishments without any involvement of
federal authorities in these relations. Moreover, the Austrian Länder had a well-
developed network of cross-border and inter-regional relations already before
Austria’s membership in the EU. Although some territorial parts of the cross-border
and inter-regional bodies established in the 1970s with the participation of the
Austrian and German Länder are now integrated in various programs of INTERREG,
no INTERREG funding is given directly to these bodies. They have not been entirely
integrated in the programs of INTERREG as it has been done in Belgium.
As for the EU-supported cross-border and inter-regional co-operation, German and
Austrian federated entities are actively involved in such relations within the
framework of INTERREG programs. However, it should be noted that whereas cross-
border and inter-regional relations of Belgian federated entities are to a large extent
still limited to relations in the framework of INTERRREG, EU-supported regional
ties of the Austrian and German Länder rather complement external relations these
entities have been conducting since decades.
With regard to Europeanisation in the field of federated entities’ external relations
based on principles of multi-level governance, it has to be concluded that there is a
notable degree of Europeanisation in all three federal states. The effects of European
integration on external relations of federated entities have been numerous. First, the
most obvious impact of Europe is a formalisation and an increased institutionalisation
of cross-border and inter-regional relations since the end of 1980s. INTERREG
contributed to a formalised involvement of various entities in the institutional set-ups
of cross-border and inter-regional bodies. Second, the bottom-up aspect of cross-
border and inter-regional co-operation – a distinguishing feature of such relations (see
above) – tends to loose its relevance as the initiatives of regional co-operation
launched and supported by the EU from above gradually gain more importance.
Third, cross-border and inter-regional bodies established under INTERREG function
as a new type of governance structures involving entities at various levels. Fourth, we
have seen that the EU-supported concept of foreign relations on a cross-border and
inter-regional scale has lead to the intensification of co-ordinated relationships
between various orders on the member state level. This happened because according
190
191
to the guidelines of the European Commission, which apply to all states eligible to
INTERREG alike, the EU regards member state governments as the main contact
authorities. In order to facilitate communication between the domestic authorities and
the European Commission, the federal states were obliged to develop domestic inter-
level mechanisms in order to co-ordinate questions related with INTERREG. Before
the launch of INTERREG, federal governments were not involved in cross-border and
inter-regional relations conducted by federated entities.
Thus, the EU policy aimed at strengthening cross-border and inter-regional ties also
strengthens and intensifies inter-level ties on the member state level. As far as the
institutional characteristics of these inter-level ties are concerned, there are
differences in the three federal states compared in our study. We have seen that these
differences exist first, with regard to internal regulations designed to deal on the
domestic arena with questions related to INTERREG and second, with regard to the
different types of composition of INTERREG institutional set-ups as practised in the
three federal states. As far as the first aspect is concerned, in Belgium the Permanent
Representation to the EU, which involves federal and federated entities’ diplomats, is
the main contact authority for the EU Commission when it regulates INTERREG-
related questions. In Germany and Austria respectively the federal ministries and the
Federal Chancellery are made responsible for the communication with the
Commission. With regard to the second aspect, Belgian federal representatives are not
involved in the INTERREG institutional set-ups at all and from the Belgian side only
regional entities are represented. In Austria and Germany federal authorities are to
various, even though sometimes only limited, degrees involved in the institutional
structures of INTERREG. As we see, there exists no common institutional model in
federal states to deal with questions related to European initiatives of cross-border and
inter-regional co-operation.
As far as the structural aspect of Europeanisation of federal relationships in the field
of regional co-operation is concerned, all three federal states are characterised by
some, although varying, degree of interdependence between the levels. The
distribution of prerogatives between federal and federated orders in the EU-supported
cross-border and inter-regional co-operation is such that none of the levels is able to
act alone. Interdependent relationships are established first because the EU supports
191
programs of regional co-operation in fields of federated entities’ competence but regards the
member state governments as the main contact authorities. Second, even if member state
representation in the institutional structures of INTERREG is decentralised, as it is the case in
federal states, each state has to speak with one voice during the consensus-based decision
making in these structures.
We have seen that in Germany and Austria, specific non-formalised inter-level institutions
have been created (in Germany INTERREG sub-committees) or activated (in Austria the
Conference on Spatial Planning) on the domestic level in order to co-ordinate questions
related with cross-border and inter-regional relations. Since these institutions decide on the
basis of unanimity, federal and federated entities involved in the internal decision making
process are highly interdependent on each other. We have seen that even in Belgium, where
the domestic distribution of competences makes it possible to exclude federal representatives
from the institutional structures of INTERREG, the European Commission regards the
Permanent Representation as the main contact authority when dealing with INTERREG-
related questions. In order to develop and design INTERREG programs on the internal level,
federated entities immediately involved in these programs have to co-ordinate with the
Permanent Representation of Belgium to the EU to be able to formally communicate with the
EU Commission.
Thus, as far as Europeanisation of domestic inter-level structures in the field of federated
entities’ foreign relations is concerned, the common characteristic feature of the three federal
states is a growing interdependence among the levels. European integration leads to the
establishment and reinforcement of interdependent relationships between federal and
federated orders in those areas of foreign activity, which would otherwise be conducted by the
federated entities alone.
192
193
4.2 European policies of federated entities
This chapter focuses on European policies of federated entities and on types of
formalised and non-formalised relationship structures established between federal and
federated orders as a consequence of these policies. As specified in previous chapters,
for the purpose of the study, under the term ‘European policies’ we include two
aspects of federated entities’ activities in the EU framework. First, we analyse the
degree of involvement of federated units in institutional mechanisms and interaction
processes between federal and federated orders on the domestic arena. These inter-
level mechanisms are aimed at co-ordinating member state positions which are later
represented in the EU institutional structures, in particular the Council of Ministers.
Second, we dedicate our attention to the analysis of representation mechanisms of
federal member states in the Council of Ministers. Here we put a special emphasis on
the role of federated units within these systems of representation.
The scope of the present chapter has been limited to these two types of activities in
the EU framework – co-ordination of EU policies on the member state level and
representation of member state positions on the EU level – because for two reasons
they serve as a fairly good illustration of formalised and non-formalised federal
relationship structures established as a result of federated entities’ involvement in the
EU policies. First, federal member states of the EU have created formalised
institutional mechanisms of participation of federated entities both in the process of
co-ordination of EU policies and in the representation of these states at the EU level.
These mechanisms take place in the structure of inter-level ties on the domestic arena.
The existence of formalised mechanisms makes it possible to analyse federal
relationship structures established on the formalised level and then to compare the
latter with non-formalised patterns thus providing a broader picture of
Europeanisation of relationships between federal and federated levels. Second,
because these mechanisms of co-ordination and representation are activated on the
day-to-day basis, they become an integral part of the federal process and thus to a
large extent shape federal structures on the member state level.152 Moreover, these
152 It has to be noted that European policies of federated entities in general include a number of other activities, such as their involvement in the structure of the Committee of Regions or participation in
193
194
two types of activities are linked with each other as first the co-ordination process
takes place according to the internally developed mechanisms and then member state
positions co-ordinated this way are represented on the EU level according to both
European and member state, in our case federal, regulations.
The study focuses on general co-ordination and representation mechanisms in federal
member states and not on the analysis of co-ordination and representation in separate
policy fields such as employment policy or education. Such a focus has been selected
for the following reason. The analysis of federal co-ordination and representation
mechanisms within the EU framework is not the actual purpose of this study and is
only used to examine and illustrate the impact of Europe on federal relationship
structures. It would be beyond the limits of the study to analyse co-ordination and
representation mechanisms in several policy fields in three federal member states
together with foreign relations of these states’ federated entities (chapter 4.1). To
analyse one or two policy fields only would not have any substantial value added
compared to the analysis of general principles of formalised and non-formalised co-
ordination and representation. It would not strengthen the argument or enrich the
results of the study with regard to Europeanisation of federal relationship structures.
In fields of EU policy co-ordination on the member state level and representation of
federated entities on the European Union level, the degree of Europeanisation and
types of relationship structure between the levels in a federation depend on European
regulations as well as on federal competence structures and legal arrangements. As far
as the European regulations are concerned, Article 146 of the Maastricht Treaty, now
Article 203 of the Amsterdam Treaty, provided for the first time in 1992 a framework
for a direct involvement of regional entities in the European decision making process.
The article states the following: ‘The Council shall consist of a representative of each
Member State at ministerial level, authorised to commit the government of that
Member State’.153
national delegations during Intergovernmental Conferences. These activities are not analysed in our study. 153 The first part of this regulation (before the comma) goes back to the demands expressed by the Belgian and German federated entities in the preparation phase of the Treaty of Maastricht. These demands were aimed at introduction of a decentralised system of member state representation in the Council of Ministers of the EU. The second part of the regulation (after the comma) was introduced in Article 146 of the Treaty of Maastricht on the urge of some member states, in particular France, to
194
195
In this way, the member state governments ceased to be the only authorities entitled to
represent their countries at the European level. Article 146 created a legal basis for
diversified representation of member states in the Council of Ministers. However,
each member state is represented as a single player in the Council and, irrespective of
the status of the authority at the internal level, the position represented by this
authority is that of the member state as a whole. This means that regional authorities
are supposed to represent not their own entities but the states which these entities are
part of. Thus, regional representation remains nested within the member state
regardless of whether the state is federal, decentralised or unitary. As Morass puts it,
Article 146 ‘does not imply direct sub-national representation, as has sometimes been
argued in the literature on the subject, but only creates an opportunity to delegate
national governments’ rights, while basically remaining within the logic of member
states’ (Morass, 1996: 84). As the function of federated units at the European level is
restricted to representing a position co-ordinated on the internal level, their influence
on European policy making can be more successful during the domestic co-ordination
process than during the Council meetings (ibid.). In this sense, Article 203 of the
Amsterdam Treaty has stronger consequences on the member state level than on the
EU level.
It is broadly accepted that European policy can not be regarded as foreign policy in
the traditional meaning of the term. Actions and policies of single states and entities
within the EU can not be considered as policies under terms of international law.
Instead, these policies are normally conducted according to principles of domestic and
EU law. In spite of the clear difference between foreign policy and European policy,
the regulations of Article 203 of the Amsterdam Treaty are based on the principle of
unity of states that is fundamental for foreign relations under terms of international
law. According to this principle, every state should speak with one voice on the
external arena irrespective of its internal structure (see previous chapters). Thus,
principles of international law find expression within European regulations and
structures. Being based on the notion of indivisible external sovereignty these
principles to some extent ignore the existence of federated entities and in this sense
guarantee a unified representation of member states in the Council irrespective of the domestic position of the ministerial authorities representing the states.
195
196
contribute to the reinforcement of hierarchical relationships between federal and
federated governments.
The consequences of Article 203 with regard to Europeanisation of federal
relationship structures is largely determined by the division of legislative competences
and the degree of autonomy of federated entities on the domestic level. The status of
federated units within the structure of the co-ordination process on the member state
level takes source in the first place in the distribution of legislative and administrative
prerogatives among the orders in a federation and in particular in the competences
attributed to federated entities. If federated entities avail of a high level of institutional
autonomy and a large number of exclusive competences it is very likely that
Europeanisation will find its expression in a relatively high degree of interdependence
between the levels on the domestic arena. If federated entities have a weak position in
the federal competence structure, Europeanisation will most probably result in
relationship structures between federal and federated orders characterised by a
superior position of the upper level and by vertical lines of dependence of the lower
level on the upper one.
In the following chapter we will analyse the Belgian, German and Austrian systems of
co-ordination of European policies and the mechanisms of representation of the
internally co-ordinated positions on the EU level. We will examine the degree of
involvement of federated units in these activities from the point of view of hierarchy
and interdependence and will differentiate between formalised and non-formalised
instruments of co-ordination and representation.
4.2.1 Co-ordination of European policies
4.2.1.1 Belgium
4.2.1.1.1 Formalised mechanisms
Internal mechanisms of co-ordination of EU policies in Belgium were established for
the first time in 1974 as a response to the growing importance of the European
dimension for Belgium’s foreign policy. Before 1974 co-ordination instruments were
196
197
informal and ad hoc and there existed no centralised co-ordination system. The
methods of co-ordination of European policies currently practised in Belgium were
created in 1994 after the introduction of Article 146 into the Maastricht Treaty in
1992 and the constitutionalisation of the federal character of Belgium in 1993. This
domestic system of co-ordination is regulated by the Co-operation Agreement on the
representation of Belgium in the EU Council of Ministers concluded between the
federal government, Regions and Communities on 8 March 1994 (see Moniteur
belge/Belgisch staatsblad, 17 November 1994).154
Under terms of the current system of co-ordination as established by the Co-operation
Agreement mentioned above it is the Directorate for European Affairs of the Federal
Foreign Ministry (since 2002 Federal Public Service for Foreign Affairs), the so-
called P.11, that plays the central co-ordinating role (Article 2, Co-operation
Agreement). The P.11 co-ordinates Belgian positions, which are later represented in
the institutional structures of the EU. It is an administrative body, which meets on a
weekly basis and where about twenty-five participants attend the meetings. They
represent federal, regional and community ministries as well as the Permanent
Representation of Belgium to the EU. The head of the P.11 is a federal authority.
Whereas the present system of co-ordination involves authorities at various levels,
before 1994 only federal ministers could participate in the meetings of the P.11.
As for the second chamber of the Belgian Parliament – the Senate – its weak
institutional position in a comparative perspective and the fact that the Senate is only
to a limited extent a representative body of federated entities (see 3.1.4) are reflected
in the co-ordination mechanisms of EU policies. The involvement of federated entities
in these mechanisms does not take place through the Senate and the latter is not
154 In November of the same year the Spanish government and the Autonomous Communities reached an agreement, according to which a non-formalised and ad hoc interministerial conference on European affairs was formalised. It has to be mentioned that the formalisation of the conference, which existed since 1988, goes back to repeated attempts of the central government that had been constantly rejected by some Autonomous Communities. In order to stress their special status within the Spanish state structure, the historical communities, in particular the Basque Country and Catalonia, had been refusing to be treated equally with other Autonomous Communities. They were willing to create bilateral co-ordination mechanisms with the central government (Neunreither, 2001: 108).
197
198
incorporated into the institutional set-ups of co-ordination.155 The Co-operation
Agreement does not refer to the upper chamber of the Belgian Parliament at all.
According to Article 2, 2 of the Co-operation Agreement, co-ordination of Belgian
positions with regard to European dossiers takes place before each meeting of the
Council of Ministers in a ‘systematic and horizontal manner’. In the Co-operation
Agreement the inter-level co-ordination in the structure of P.11 is referred to as
horizontal co-ordination. The special feature of the Belgian system of co-ordination is
indeed the individual approach it adopts while developing European policies:
decisions in the P.11 are taken by consensus. This means that federal and federated
authorities are equally important and the consent of each of them is needed before a
Belgian representative can take a position in the Council of Ministers (Kerremans,
2000a: 38-39). For example, in matters that fall within community competences not
only bigger federated entities such as the French or the Flemish Community, but also
the German-speaking community – which accounts for roughly 70 000 German-
speaking Belgians – could theoretically block a decision making process by using the
right of veto.
If the participants of the P.11 fail to develop a common position because one or
several of the entities disagree, the question is submitted to the Interministerial
Conference for Foreign Policy (ICFP). It consists of the ministers of foreign affairs at
different levels and also operates on the basis of consensus rules. If neither the P.11
nor the ICFP can reach an agreement, the question is referred to the Concertation
Committee.156 The composition of the latter is characterised by a double parity. On
the one hand there is parity between federal and federated authorities. The
Concertation Committee consists of the Prime Minister, five federal ministers and six
members of federated governments thus accounting an equal number of federal and
federated representatives on the cabinet level. On the other hand there is a linguistic
155 Similarly with the Belgian Senate, the Spanish upper chamber – Senado – has a marginal role in the decision making process of the central state and possesses only a simple veto right that can be overruled by the Congress, the Spanish lower chamber. The Spanish Senate can not be viewed as a representative body of the Autonomous Communities. 80 per cent of the senators are elected directly in provinces – administrative units below the regional and above the local level - and 20 per cent of the senators are drawn from the legislative bodies of the Autonomous Communities. Just like the Belgian upper chamber, the Spanish Senate is not involved into the internal co-ordination processes aimed at formulating European policies. 156 The Concertation Committee was established during the second constitutional reform in 1980.
198
199
parity. This means that the Concertation Committee is composed of an equal number
of French- and Dutch-speaking authorities. In case community competences are
concerned, a representative of the German-speaking Community of Belgium also
participates in the meetings of the Committee (Poirier, 2002: 33).
In spite of the equal negotiating position of each entity participating in P.11 meetings,
the federal government has a slight primacy in the structure of inter-level co-
ordination as it plays a monitoring and harmonising role during the co-ordinating
process. However, the co-ordinating role of the federal government is purely
organisational. Federated entities on their part welcome the fact that the federal
government overtakes the organisation of formalised co-ordination processes and
provides for all entities a forum for meetings and exchange of positions. The equal
negotiating position of federal and federated entities results in a relatively high degree
of interdependence between them in the system of co-ordination. The institutional set-
ups and mechanisms of co-ordination on the domestic level force federal and
federated authorities to rely on their counterparts’ co-operative behaviour and
readiness to compromise in order to develop a Belgian position.
The establishment of such a non-hierarchical system of co-ordination goes in line with
the principles on which the Belgian federal system is based. The latter is aimed at
precluding hierarchies in the division of legislative and administrative competences
on the domestic level and at establishing institutional structures that make all entities
as equal as possible. These characteristics of the Belgian federal design find a
reflection in the domestic co-ordination of EU policies. Kerremans and Beyers
indicate correctly that in the Belgian model of European co-ordination the distinction
between second and third level players (respectively federal and federated entities)
has become blurred (Kerremans and Beyers, 1996: 48).
All European dossiers on which the Belgian federal and federated authorities are
supposed to express their position in the EU Council of Ministers have to pass
through the P.11. However, the P.11, which carries out the task of centralised general
co-ordination, often only rubberstamps EU-related domestic decisions. This happens
because behind the P. 11 there is another layer of specialised co-ordination. Domestic
positions with regard to European dossiers are co-ordinated in a sector-oriented
199
200
manner by competent authorities and experts in the respective field of competence.
Hereby the mechanisms of specialised co-ordination in fields of federated entities’
exclusive competence differ from inter-level co-ordination mechanisms in fields of
responsibility shared by the federal and federated orders.
In fields of exclusive regional and community competence, such as culture or youth
policy, specialised co-ordination is done on the horizontal level among the federated
entities. Federal authorities are not involved in these processes of co-ordination.
Normally those federated entities, which according to the system of rotation are
supposed to head the Belgian delegation in the Council of Ministers (on the Belgian
system of representation in the Council of Ministers see section 4.2.2.1) are also
responsible for specialised horizontal co-ordination (Commissariat Général aux
Relations International et Division des Relations International, 2001: 90). These
entities organise meetings, normally on the administrative level, to which the
representatives of federated entities are invited. Specialised co-ordination in fields of
federated entities’ exclusive competence is neither formalised nor institutionalised.
The mechanisms of co-ordination are not regulated by any legal documents. Intra-
level co-ordination on the federated level in Belgium does not take place within any
institutionalised set-ups either. In fields of competence exclusively regulated by
federated entities there exist no interministerial conferences on the political level and
the corresponding working groups on the administrative level subordinated to these
conferences. The co-ordination takes place on the ad hoc basis and the location of the
meetings between the federated entities changes from case to case.157
In fields of competence shared by federal and federated entities, the co-ordination of
European dossiers on the Belgian level normally takes place in the structure of sector-
oriented interministerial conferences and the expert working groups subordinated to
these conferences. The latter have been created under the umbrella of the
Concertation Committee mentioned above. Nowadays there are sixteen sector-
oriented conferences (the ICFP being one of them), which serve the aim of inter-level
157 Interview with a Francophone official, Brussels, August 2003. Interview with a Flemish official, Brussels, September 2003. Normally the meetings organised by the French Community takes place in the Commissariat Général aux Relations Internationales, whereas the Flemish Community organises the meetings of federated
200
201
co-ordination in the Belgian system.158 It has to be emphasised that the actual inter-
level co-ordination is not done on the political level by the intergovernmental
conferences but instead on the administrative level by the working groups and
commissions. Decisions in the institutional structures charged with specialised inter-
level co-ordination are taken by unanimity, which gives federal and federated entities
equally strong positions in the process of negotiations. However, like the P.11, the
activities of sectoral conferences are co-ordinated and supervised by federal
authorities.159
The degree of formalisation of specialised inter-level co-ordination mechanisms and
the frequency of meetings of relevant institutions vary from policy field to policy
field. In some policy areas, such as environment, agriculture or economic affairs, the
institutions of specialised co-ordination function on a legal basis and meet regularly.
Sectoral co-ordination of European dossiers in fields of transport, social affairs and
employment, for example, is done in an ad hoc manner without any formalised
mechanisms of inter-level co-ordination. The actual co-ordination of European
entities mostly in the Permanent Representation of Belgium to the European Union (Interview with a Flemish official, Brussels, September 2003). 158 The system of sector-oriented conferences was also created in Spain. Specialised conferences were legally established in 1983. The Autonomous Communities rejected these conferences and interpreted them as an attempt by the central government to intervene in spheres of regional competence. The Basque Country and Catalonia even appealed to the Constitutional Court complaining that the law, which established specialised conferences, infringed upon the autonomous competences as regulated in their Statutes of Autonomy. The Court declared that the national law in question was unconstitutional but did not abolish the sectoral conferences. It only restricted their decision making powers (Börzel, 2000: 31). Thus, specialised conferences in Spain remained the formalised mechanisms of co-ordination. The 23 sector-oriented conferences are composed of the respective minister of the central government and the ministers of the Autonomous Communities. The head of the conference is always a representative of the central government. Due to the cross-sectoral character of European policy, the conference on European affairs is not one of the 23 sectoral conferences. It is composed of the Minister of State for public administration and a minister from each AC entitled to represent its president. Thus, like Belgium, sectoral conferences are formalised mechanisms of inter-level co-ordination in Spain. Besides these formalised mechanisms an important role is played by bilateral co-ordination between the central government and the Autonomous Communities, in particular the Basque Country and Catalonia. Such informal bilateral negotiations often precede co-ordination in formalised structures. Analysing 23 specialised intergovernmental conferences Börzel comes to the conclusion that multilateral intergovernmental co-operation in these conferences is more effective on European issues than on domestic issues (Börzel, 2000: 41). 159 Interview with a Francophone official, Brussels, August 2003. Interview with a Flemish official, Brussels, September 2003. The federal and federated governments decided together to create the post of Federal Correspondent in each federal ministry in order to guarantee a better communication between federal and federated ministries and between these ministries and the Commission. Federal Correspondents are not involved in the co-ordination of EU dossiers that fall within exclusive prerogatives of Regions or Communities. They participate in the co-ordination only in those fields of competence that belong either exclusively or partly to the federal responsibility (Kerremans, 2000a: 43).
201
202
dossiers in these fields often takes place in the structure of the P.11, where the
representatives of federal and federated levels for the first time meet each other. Since
the meetings of the P.11 are normally organised shortly before the meetings of the
Council of ministers, federal and federated authorities sometimes do not have enough
time to co-ordinate their positions, especially in case the latter diverge from each
other.160
The scientific research done on specialised co-ordination in the Belgian system
showed that the co-ordination methods in various policy fields are largely different
ranging from highly formalised to predominantly non-formalised and ad hoc
mechanisms of co-ordination. Bart Kerremans, who compared three policy fields,
environment, agriculture and social affairs, came to the conclusion that the divergence
of co-ordination mechanisms in these fields can be explained by two factors. First, the
significance of both international and European agendas on the issues concerned, and
second, the role of the Federal Correspondent – a position created in each federal
ministry (see the previous footnote) – or the respective minister determine the way in
which the specialised co-ordination is organised (Kerremans, 2000a: 54-55).161
Since this study is not aimed at analysing and comparing formalised and non-
formalised co-ordination mechanisms in various policy fields, but instead at
examination of general mechanisms of co-ordination, we will not focus further on
inter-level co-ordination in different policy arenas. It should only be indicated at this
stage that Europeanisation is visible not only with regard to general co-ordination, but
also in the field of specialised co-ordination. Hereby the most notable impact of
Europe seems to be the formalisation since specialised co-ordination mechanisms are
160 Interview with a Flemish official, Brussels, September 2003. 161 With regard to the relevance of international and European agendas on the issues concerned, Kerremans concludes that the higher the number of international and EU-wide negotiations and agreements, the higher the degree of formalisation of the specialised co-ordination in Belgium. If there is little to discuss on the issue in the EU or on the international level, the interest of the parties involved in creating a formalised co-ordination system is relatively low as such a system is related to political costs. As for the role of the Federal Correspondent or the respective minister, the lower the international salience of issues dealt with in the EU, the more will the personal approach of the Federal Correspondent determine the way in which specialised co-ordination is structured in Belgium. Some Federal Correspondents may show more openness towards federated entities and involve them at an early stage of co-ordination whereas others may not (Kerremans, 2000a: 54-55). For example in the fields of agriculture and environment, where the EU and international organisations are very active, the need for frequent co-ordination leads to formalisation. In the case of social affairs, co-ordination is
202
203
more formalised in those policy fields where the EU is more active. Formalisation and
a high frequency of co-ordination on their part lead to the reinforcement of inter-level
ties on the domestic level.
In the process of co-ordination the Permanent Representation (PR) of Belgium to the
EU plays an important role. Since 1993 the Belgian federated entities, except for the
German-speaking Community of Belgium, are formally represented in the PR by their
delegations.162 The heads of regional and community delegations have a diplomatic
status equal to the Permanent Representative.163 This equality reflects the distribution
of foreign policy competences in the Belgian federal system and is symbolically
expressed in the PR by locating the offices of the Permanent Representative and the
heads of regional and community delegations on the same floor.164 The regional and
community representatives are subordinated to their respective foreign ministers and
not to the Permanent Representative, who is a federal diplomat. Whereas Wallonia
and French Community have separate delegations in the PR, the Flemish Community
and Region are represented by a single delegation.165 Such a distribution of
competences within the structure of the Permanent Representation reflects the
different choices made by the Flemish and the Francophones with regard to fusion of
regional and community institutional structures (see section 3.1.3).
Before establishing this formalised presence of federated entities in the Permanent
Representation in 1993, on the formal level communication between the EU and the
Belgian Regions and Communities evolved via the federal level. Unlike other
European regions, the Belgian federated entities have never had representation offices
in Brussels. Under terms of the current system of co-ordination the regional and
community representatives have the task to manage the horizontal co-ordination
process in fields of exclusive federated competence. The Permanent Representation is
often achieved via faxes and telephone calls because EU proposals on these issues are rather seldom (Kerremans, 2000a: 44-53). 162 The Spanish decentralised entities have the so-called ‘autonomous attaché’ in the Permanent Representation of Spain to the EU, in order to ensure that information from European institutions, especially the Commission, goes directly to the representation offices of the Autonomous Communities in Brussels (on the representation offices of Spanish Autonomous Communities to the EU see Neunreither, 2001). 163 The German-speaking Community of Belgium has a house in the centre of Brussels, which does not have a status of a regional representation office comparable with the offices of other European regions. 164 Interview with a Flemish official, Brussels, March 2001. 165 Interviews with Flemish and Francophone officials, Brussels, March 2001.
203
204
also held responsible for the organisation of meetings on subject matters that are to be
discussed in the COREPER and at a later stage in the Working Groups of the Council
of Ministers. The head of the Belgian delegation in the COREPER is always a federal
representative assisted by the representatives of federated entities in case the
European dossiers affect the prerogatives of the latter.
4.2.1.1.2 Non-formalised mechanisms
In case federal and federated authorities fail to develop a common position in the
structure of domestic mechanisms of co-ordination, the Belgian representative has to
abstain in the Council of Ministers. This means that the political pressure for
consensus building and compromise is relatively high in the P.11. Theoretically, the
choice by single entities to use their exceptionally strong bargaining position to the
fullest extent and to veto decisions can have serious consequences. It would block the
decision making process on the domestic level and also have an impact on the Belgian
voting behaviour on the EU level. This strategy is normally not chosen by the Belgian
entities. In practice, domestic co-ordination is characterised by co-operation rather
than confrontation within the structure of the P.11. In the ten year long history of the
Belgian federation it has almost always been possible to reach an agreement on the
internal level with regard to European matters. Since the creation of the system of
inter-level co-ordination in 1994 up until the mid-2002 there has been only one dead
lock during the preparatory negotiations for the Council of Ministers’ meetings in the
P. 11. 166
Such a co-operative behaviour of the Belgian federal and federated authorities can be
explained by two reasons. First, it is not in the interest of single entities to block the
inter-level co-ordination process and thus become responsible for the consequences
such a dead lock might have on the domestic as well as on the EU level. Second,
iterated bargaining has a substantial impact on the negotiating behaviour of the
participating entities. Changing coalition building around various issues makes single
entities dependent on their counterparts. To veto decisions today may play out against
166 Interview with a Belgian federal official, Brussels, March 2002. The interviewee restrained from specifying the case.
204
205
them tomorrow in case they need support from their counterparts during the
negotiating process (Kerremans, 2000b: 496).
Abstentions of a Belgian representative in the Council of Ministers are relatively
seldom. For example, Belgium abstained in 1996 once, in 1997 also once, in 1998
three times (in 1999 there were no abstentions) and in 2000 four times.167 We should
note here that abstentions are not always conditioned by internal disagreements and
the impossibility to make a decision on the domestic level. Much rather they are due
to a number of other reasons.
First, if it is impossible to reach a consensus on the administrative level in the P. 11
and the Belgian abstention does not threaten to block the European decision making
process in the Council of Ministers, it may be preferable to abstain rather than to
prolong the decision making process on the domestic level by referring the case to the
Interministerial Conference for Foreign Policy. Normally the ICFP is not involved in
the internal co-ordination of European dossiers as around 95 per cent of all the
decisions on European issues are taken in the P.11. Only those subject matters, which
require a decision on the political level, are referred to the ICFP. Since 1994 up until
the mid-2002 no meetings of the ICFP have been held with the aim to settle the
conflicts originated during the negotiations in the P.11. If any, such conflicts are
normally settled outside the formal institutional structures. Instead of referring the
case to the ICFP, sometimes the Federal Foreign Minister on an informal request of
the head of P.11, contacts his regional and/or community counterparts and co-
ordination takes place on the phone and during informal meetings.168 However, a
federal diplomat can only make an attempt to persuade his federated counterparts but
possesses no mechanisms to influence their positions. In this sense, the federal level
continues to carry out its co-ordinating function during the informal negotiations and
its slight primacy established on the formalised level is maintained on the non-
formalised level as well. No involvement of the Concertation Committee with the
purpose to solve conflicts has been necessary so far either. Political controversies are
167 This data have been obtained from an unpublished document received during an interview with a German federal official, Brussels, March 2001. 168 Interview with a Belgian federal official, Brussels, May 2001.
205
206
rather settled within the framework of regular meetings of the Prime Minister and the
leaders of governing parties (Deschouwer, 2000: 112).
Second, we have to mention the specificity of the Belgian system of distribution of
competences. As a large number of prerogatives are attributed exclusively to the
Communities or Regions, each of them opts for a different legal solution to regulate
the subject matters under its prerogative. Apart from that, a topic discussed on the EU
level may fall within a field of competence that is shared among federal and federated
orders. In such cases it is sometimes difficult to develop a unified Belgian position
that corresponds to the priorities of all the entities affected by the European
regulations. Consequently, it might even be easier not to find a solution and let the
Belgian representative abstain in the Council. This pragmatic attitude serves the aim
to avoid institutionalised conflicts on the domestic level.169
Third, in case the Belgian veto threatens to block the decision making process on the
EU level, the Belgian authorities sometimes decide to abstain in the Council of
Ministers rather than veto European proposals. However, this voting behaviour is not
typically Belgian and may be detected in other member sates too. To sum up, the
number of abstentions in the Council of Ministers that resulted from domestic inter-
level conflicts and disagreements is even lower than the total number of abstentions
indicated by the figures above. Thus, decision making on the basis of consensus rules
in the P. 11 can not be regarded as a blocking factor in the process of domestic co-
ordination.
To summarise, the Belgian co-ordination system has a largely intergovernmental
character. The central players are federal and federated authorities on the
governmental and administrative levels. The institutional set-ups of co-ordination put
these authorities on an equal footing with each other. The co-ordination mechanisms
among the equals lead to a high degree of interdependence among them. A slight
primacy of the upper level expressed in its co-ordinating and supervising role can be
identified in the formalised as well as non-formalised spheres of inter-level co-
ordination. However, this slight primacy of federal authorities does not affect the
169 Interview with a Francophone official, Brussels, March 2001.
206
207
institutional interdependence among the federal and federated orders. In the Belgian
domestic mechanisms of European co-ordination there are no institutions that decide
according to voting rules other than consensus.
Whereas the centralised general co-ordination is highly formalised, the specialised co-
ordination is characterised by varying degrees of formalisation. In fields of federated
entities’ exclusive competence, the co-ordination is done by these entities in a non-
formalised and non-institutionalised manner. In fields of competence shared by the
two levels, inter-level institutions have been established. The degree of formalisation
and the practical relevance of these institutions vary from policy field to policy field
and are to a substantial extent determined by the role of the EU in these policy fields.
Thus, the Belgian system of co-ordination is characterised by a mixture of formalised
and institutionalised, non-formalised and non-institutionalised and non-formalised and
institutionalised modes of co-ordination.
4.2.1.2 Germany
4.2.1.2.1 Formalised mechanisms
In the German federal system, the formalised co-ordination of European policies takes
place at the federal level: it is based on the interaction between the federal
government and the upper chamber of the federal parliament – the Bundesrat.170 The
latter is a representative body of federated entities at the federal level. As its members
are delegates of Länder governments, the formalised mechanisms of the German co-
ordination process are largely intergovernmental and resemble in this respect that of
Belgium. However, there are substantial differences between the two models that
have to be analysed in greater detail.
As for the federal government, the Foreign Ministry and the Ministry of Finance are
responsible for the overall co-ordination of EU policies on the domestic level.
Whereas the Foreign Ministry predominantly deals with political and institutional
170 The Bundesrat receives about 5000 EU documents per year. About 4000 documents are further transferred to the respective authorities in the Länder. Only 80 to 160 documents per year result in
207
208
issues, such as enlargement or EU treaties, the Ministry of Finance is held responsible
for economic and domestic policy matters affected by the EU.
When the European Community on Steel and Coal was created in the 1950s, a
controversy started between the Foreign Ministry and the Ministry of Economy with
regard to the division of responsibilities related to European integration. The Ministry
of Foreign Affairs defended the idea that EU treaties were related to international
legal questions and the further development of the Union required well-developed
intergovernmental relations involving diplomats. According to the Ministry of
Economy, EU affairs were to be treated as domestic policy and, because at that time
there was only an economic community, its affairs should not be subordinated to the
Foreign Office. A compromise was reached in 1958 and European affairs were put
under a shared responsibility of the Ministry of Foreign Affairs and the Ministry of
Economy (Derlien, 2000: 57-58). This division of labour was maintained up until
1998 when the competences to co-ordinate EU policies were redistributed by the so-
called Law of the Federal Chancellor (Bundeskanzlergesetz). According to this law,
the Ministries of Foreign Affairs and of Finance are held responsible for the co-
ordination of EU-related questions. Thus the tasks subordinated to the Ministry of
Economy were transferred to the Ministry of Finance.
In Germany, Article 23 of the Basic Law (BL), the Grundgesetz, regulates the
institutional mechanisms of co-ordination of European policies and provides for
various degrees of involvement of the Länder into these mechanisms. Article 23 BL is
concretised by the Law on Co-operation between the Bund and the Länder in Matters
of the European Union (henceforth abbreviated as LC)171 of 12 March 1993 and the
Agreement between the Federal Government and the Governments of the Länder on
Co-operation in Matters of the European Union of 29 October 1993.172 This
agreement has been supplemented by an Agreement between the Federal Government
and the Governments of the Länder concluded on 8 June 1998.
printed positions of the Bundesrat on the subject (Bundesratsdrucksachen) (Interview with a Bundesrat official, Berlin, June 2001). 171 In German, Das Gesetz über die Zusammenarbeit von Bund und Ländern in Angelegenheiten der Europäischen Union (EUZBLG).
208
209
In contrast to Belgium, under terms of the German model of intergovernmental co-
ordination there exists no common formalised intergovernmental forum, in which the
representatives of both levels work on an equal basis. Instead the federated entities
participate in the process of inter-level co-ordination via the Bundesrat. The main
difference between the German and Belgian systems is that whereas in the Belgian
model of domestic co-ordination the federated entities are equal to the federal level,
this equality is absent in Germany. Here the Länder participate in the internal decision
making process rather then co-determine the outcome of this process on an equal
basis with the federal level. In contrast to the Belgian method of co-ordination, the
German one adopts a collective strategy. This means that not the positions of
individual federated units, but the standpoint of the federated level as a whole
expressed by the Bundesrat is decisive. However, it has to be noted that the 16
German Länder often have divergent positions that require horizontal co-ordination.
These divergent positions can be traced back, among other things, to the political
composition of Länder governments as well as to differences in economic strength
between northern and southern and/or western and eastern federated entities. Thus, as
united positions of the Länder are expressed through the Bundesrat via majority
voting rules, the degree of interdependence on the formalised level among the
federated entities is lower than in Belgium where each entity has the right to veto
decisions.
The Bundesrat did not always have this prominent position in the German system of
co-ordination. The participation rights of the Länder in the formulation of the German
standpoint were for the first time legally regulated in the law of 1957 concerning the
Treaty of 25 March 1957 on the Foundation of the European Economic Union and the
EURATOM.173 According to these regulations, the Bundesrat had the right to be
informed on EU matters and could take (non-binding) positions with regard to these.
Between 1979 and 1987, according to the so-called Mausser Procedure, European
matters were dealt with outside the Bundesrat structure within the system of
horizontal co-ordination among the Länder in co-operation with the Federation. The
Conference of the Länder Minister Presidents (Ministerpräsidentenkonferenz der
172 In German, Die Vereinbarung zwischen der Bundesregierung und den Regierungen der Länder über die Zusammenarbeit in Angelegenheiten der Europäischen Union.
209
210
Länder) and the sector-oriented conferences on the ministerial level
(Fachministerkonferenzen der Länder) played the central role in this context. Such a
system of co-ordination required unanimous consent of all the - then eleven - Länder
and was often inefficient and time-consuming. After the abolishment of the Mausser
Procedure unanimity voting lost its relevance. European matters became completely
incorporated into Bundesrat’s business and subjected to majority voting since the
ratification of the Single European Act in 1986. According to the Agreement between
the Federation and the Länder signed on 17 December 1987 the Bundesrat became the
main organ representing the Länder in the process of domestic co-ordination.
The participation rights of the Länder in the European policy making were for the first
time constitutionalised in 1993 and concretised in Article 23 of the Basic Law.
According to the regulations of Article 23 BL and of the Law on Co-operation
mentioned above the degree of federated entities’ involvement in the domestic
decision making on EU policies depends on the subject matter under consideration in
the Council of Ministers and on the internal competence structure. If European
dossiers mainly regulate federal competences but also affect the interests of the
Länder, the federal government has to take the opinion of the Bundesrat into
consideration (Article 23, 5 BL and § 5, 1 LC). ‘To take into consideration’
(Berücksichtigen) here means that the federal government has to discuss and to take
the position of the Bundesrat into account while developing the German standpoint.
However, federal authorities are not bound by the position of the Bundesrat. It has to
be noted that the regulations of Article 23, 5 BL and § 5, 1 LC apply not only to
exclusive federal competences but also to subject matters that belong to concurrent or
framework competences of the Federation (Müller-Terpitz, 1999: 370).
If the main topic - not one of the topics - of the EU draft law in question affects (‘im
Schwerpunkt betroffen’) the legislative competences of the Länder, their
administrative functions, facilities or procedures, the federal government has to give a
serious consideration (‘maßgeblich berücksichtigen’) to the opinion of Bundesrat
173 In German, Gesetz vom 25. Juli 1957 zu den Verträgen vom 25. März 1957 zur Gründung der Europäischen Wirtschaftsgemeinschaft und der europäischen Atomgemeinschaft.
210
211
(Article 23, 5 BL and § 5, 2 LC).174 In the case of disagreement between the federal
government and the Bundesrat, consultation mechanisms have to take place between
the representatives of the federal government and the Länder. A compromise solution
may then be reached. In order to take effect, it has to be approved in the Bundesrat
and the latter has to modify its previously expressed position according to the
compromise solution.175 In case no compromise can be achieved between federal and
federated orders, the Bundesrat’s position prevails if taken by a two-thirds majority (§
5, 2 LC). This means that the Bundesrat has the last say in the domestic controversy
under the condition that its decision is supported by two-thirds of the total of 69 votes.
If the federal government disregards the prevailing position of the Länder – the so-
called ‘Beharrungsbeschluß’ taken by a two-thirds majority – during the decision
making process at the EU level, it has to justify its decision and explain the reasons
for deviation from the position of the Länder. In the event of further disagreement, the
Länder can apply to the Federal Constitutional Court.
Thus, in fields of competence where on the internal level the Bundesrat has to give its
consent to federal laws (consent bills), in the process of European decision making the
federal government only takes into consideration the opinion of the upper chamber
without being bound by it. In fields of legislative and executive competences of the
Länder on the domestic level the Bundesrat has the right of a serious and in certain
174 Although the European policy co-ordination in Spain takes place within the system of sector-oriented conferences, the Spanish mechanisms of domestic co-ordination to some extent resemble the German regulations. Alongside the German model the Spanish co-ordination system establishes various degrees of participation of the Autonomous Communities depending on to what extent the competences of the latter are affected by European legislation. The central government informs the communities in the sector-oriented conferences about all the European issues that could be of any interest for them. The ACs can formulate joint positions. If a European proposal affects the exclusive competences of the central state, the communities can only formulate non-binding positions. If shared or concurrent competences are on the EU agenda, or public spending is affected, the position agreed between the ACs and the central government is the Spanish bargaining position. If exclusive competences of the Autonomous Communities are affected by European regulations, their joint position is binding for the central government. While formulating joint positions, each AC has an equal vote. The co-ordination procedure with regard to European affairs is the first formalised framework in Spanish intergovernmetal relations which gives the Autonomous Communities participatory rights in central state decision making (Börzel, 2000: 41; Neunreither, 2001: 107). 175 The first case, in which this regulation was applied, concerned the EU directive on municipal elections (Kommunalwahlrichtlinie) in 1994. The federal government formally informed the Bundesrat about the difference in positions of the federal authorities and the upper chamber. During the consultation procedures the Bundesrat was represented by two representatives of the Länder. The compromise solution achieved as a result of these consultations was presented in the Bundesrat in the form of an official document (Bundesratsdrucksache) with regard to which the Länder were supposed to express their opinion and if necessary undertake modifications. As this was not the case, the document was adopted without any changes (Oschatz and Risse, 1995: 443).
211
212
cases of a prevailing consideration of its concerns by the federal government on the
European level (Müller-Terpitz, 1999: 357-358). The latter is subject to certain
procedural restrictions, such as a qualified majority rule. The cases where the
regulations with regard to a serious consideration of Bundesrat’s opinion apply are
limited as these regulations take effect only under the condition that exclusive
federated competences are affected by the main topic of the European draft law in
question (see above).
The formalised mechanisms of Länder participation in the European decision making
process have been largely shaped by the regulations of the Lindau Agreement, which
date back to earlier times than these formalised mechanisms (on the Lindau
Agreement see section 4.1.3.2). The first similarity regards the role of federated
entities. According to the Lindau Agreement the federated entities have to give their
unanimous consent to a federal treaty that affects their exclusive competences.
According to Article 23 Basic Law and the Law on Co-operation mentioned above,
the federal government has to give a serious consideration to the opinion of the
Bundesrat when a European draft law affects the exclusive competences of federated
entities. In cases of disagreement between the levels, the opinion of the Bundesrat
prevails. Thus, under terms of the Lindau Agreement as well as of Article 23 Basic
Law and the Law on Co-operation, the Länder have the last say, the so-called
‘Letztentscheidungsrecht’, if their exclusive competences are affected. The main
difference between these two regulations is that in the field of foreign policy making
the position of the German federated entities has to be formulated on the basis of
unanimity, whereas in the field of European policy making majority decisions are
taken by the Bundesrat.
The second similarity between the regulations of Länder involvement in foreign and
in European policy making is that in both cases various degrees of participation of
federated entities in domestic decision making procedures have been established. In
Points 3 and 4 the Lindau Agreement differentiates between two degrees of federated
entities’ involvement in the federal treaty making procedure (see section 4.1.3.2).
Article 23, 5 BL and § 5 LC also distinguish between two degrees of Länder
212
213
involvement in the process of domestic inter-level co-ordination of European dossiers
(Stern, 1995: 266-267; Winkelmann, 1993: 1131).176
The introduction of Article 23 in the Basic Law resulted in a controversy between the
Federation and the Länder. The controversy concerns the question whether the
participation of federated entities in EU matters should be regulated only by Article
23 or whether Article 32, which regulates the competences of the Federation and the
Länder in the field of foreign relations, should also apply. Whereas federal
representatives defend the idea that the regulation of European affairs should take
place only on the basis of Article 23, the Länder subscribe to the view that Article 32
and the Lindau Agreement should apply to international treaties concluded in the
framework of the European integration. To such treaties belong first, international
treaties of the EU with third states, second, the so-called mixed treaties (gemischte
Abkommen),177 third, treaties between the member states of the European Union and
fourth, treaties in the framework of co-operation in the field of justice and internal
affairs. As EU treaties with third states cover only the competences allocated to the
Union, they belong to EU affairs in the sense of Article 23 BL. In this case the legal
basis of Länder participation is not contested and the German federated entities are
involved on the internal level as well as on the level of the Council of Ministers
according to the regulations of Article 23 BL and the Law on Co-operation.
The participation of the Länder in the rest of the treaties mentioned above is
problematic in as far as member states - alone or in the case of mixed treaties together
with the EU - are parties to the treaty. This means that here we have to differentiate
between the decision making process on the EU level, in which the Länder participate
on the basis of Article 23 BL, and the participation of the Länder in the treaty making
process on the internal level under terms of Article 32 BL and the Lindau Agreement
(Oberländer, 2000: 179-180).
176 It has to be noted here that different degrees of Länder involvement in European affairs have been created for the first time under terms of the so-called Mausser Procedure of 1979. 177 Mixed treaties are defined as treaties of the European Union with third states to which the EU as well as one, several or all member states are parties. Treaty partners of the EU and its member states may be third states as well as international organisations. Examples of mixed treaties are agreements on partnership and co-operation between the EU and its member states on the one hand and third states on the other (Clostermeyer and Lehr, 1998: 151).
213
214
Various opinions have been expressed by the Bund and the Länder with regard to
domestic participation rights of the Länder in treaty making procedures in the
framework of the EU (the position of the Bund is expressed by Winkelmann, 1993;
for the position of the Länder see Clostermeyer and Lehr, 1998). However, no
solution has been found so far and it remains controversial based on which
constitutional and other regulations should international treaties in the framework of
European integration be dealt with. It has been emphasised that a new agreement
between the Federation and the Länder is necessary in order to regulate the
participation rights of the latter with regard to international treaties in the EU
framework (Clostermeyer and Lehr, 1998: 154; Oberländer, 2000: 180-181). The
conclusion of such an agreement would mean a step towards Europeanisation in the
field of foreign and European relations of federated entities in the sense that it would
be conditioned by the developments on the European level and would most probably
lead to changes of institutionalised federal relationship structures. However, no
serious steps have been undertaken in this respect so far. In case the types of treaties
mentioned above are concluded, Article 23 BL as well as the Lindau Agreement are
applied. The ratification of such treaties on the domestic level starts only after the
Länder have given their consent to the treaty under terms of the Lindau procedure.
Between 1993 and 2002 there have been 21 cases in which the Länder participated in
the EU treaty making process according to the regulations of the Lindau Agreement
(Sekretariat des Bundesrates, Büro des Ausschusses für Fragen der Europäischen
Union, 2002: unpublished document).
Within the structure of the Bundesrat, its specialised committees do the actual
legislative work, whereas the plenary meetings of the upper chamber take place once
a month in order to rubberstamp the previously co-ordinated and defined positions of
the Länder. As far as questions related to the EU are concerned, the Bundesrat’s
Committee on European Union Affairs plays a key role. It is normally a leading
committee (federführender Ausschuß), charged with the preparation of
recommendations.178 The EU Committee serves as a forum for not only horizontal but
178 The recommendations of the EU Committee of the Bundesrat are based on recommendations of other committees also charged with the preparation of Bundesrat’s position. These recommendations are delivered to the EU committee before the latter concretises the position of the Bundesrat in its final recommendation. Before each meeting of the Committee for EU Affairs there are separate preparatory
214
215
also vertical co-ordination on European matters as the representatives of the federal
government are normally present at the meetings of the committee. The division of
labour between the federal Ministries of Foreign Affairs and of Finance is such that
the first sends a representative with the right to speak to the EU Committee of the
Bundestag whereas the second is represented in the EU Committee of the
Bundesrat.179 Apart from these ministerial representatives with the right to speak in
the two committees, there are other representatives of federal ministries in the EU
Committees of the both houses of the federal parliament.
The committees of the Bundesrat charged with the preparation of a draft law remain
responsible for the latter until the decision making procedure is terminated at the EU
level and not only until a decision is taken in the Bundesrat. This contributes to the
permanent participation of the Länder in the European decision making process via
the Bundesrat. The organs of the Bundesrat can be easily re-involved in this process
in case positions have to be changed or adjusted. Apart from that a representative of
the Länder in the EU institutions, such as the Council of Ministers, has a possibility to
stay in contact and receive advice from members of the specialised committees
(Oschatz and Risse, 1995: 451).
To sum up, a co-ordination system characterised by relationships largely based on the
equality of individual units on federal and federated levels, as practised in Belgium, is
absent in Germany. Here we have a more diversified picture of federal relationship
structures and can detect interdependent as well as hierarchical linkages among
federal and federated orders. In the structure of inter-level relationships levels rather
than separate entities are interdependent on each other. However, interdependence is
only present if the fields of legislative competence of the Länder are affected by the
main topic of the EU draft laws. If the European dossiers mainly regulate federal
competences but also affect the interests of the federated entities, domestic
relationships structures in Germany are characterised by a strong dominance of the
federal level. Hereby the Länder do not possess any mechanisms to prevent the
federal government from disregarding the positions of the Bundesrat. As for intra-
meetings of the so-called A-Länder (Länder with Social Democrats in the coalition government) and B-Länder (Länder with Christian Democrats in the coalition government). 179 Interview with a German federal official, Berlin, May 2003.
215
216
level horizontal relationships on the federated level, in contrast to Belgium, individual
federated units are not equal to one another since majority voting is exercised in the
Bundesrat and its committees.
4.2.1.2.2 Non-formalised mechanisms
Whereas on the formalised level the Bundesrat is the main institutionalised
mechanism for the Länder to take influence on European affairs, a number of
institutional set-ups exist on the non-formalised level that serve the same purpose and
complement the role of the Bundesrat. The most important of such institutional
mechanisms are the Conference of the Länder Minister Presidents and the sector-
oriented conferences of the Länder Ministers, such as the conferences for culture,
internal affairs, judicial affairs, scientific research, agriculture and environment.
Particularly relevant in this context is the Conference of the Länder Ministers for
European Affairs established in 1992. This conference meets approximately four
times a year to discuss and make decisions on general questions of importance related
to the process of European integration.180 Although the primary aim of the conference
is to guarantee horizontal inter-Länder co-ordination on the domestic level, the
meetings of this institution and its working groups are also attended by the
representatives of the Bundesrat as well as of federal Ministries of Foreign Affairs
and of Finance.
An important characteristic of the German co-ordination system is that in fields of
exclusive federated competence, such as culture or education, sector-oriented
conferences play a central role. These conferences are predominantly non-formalised
mechanisms of co-ordination among the Länder. The relevance of sector-oriented
conferences in the framework of inter-level co-ordination is higher in those policy
fields that belong to exclusive competences of federated entities. The process of
horizontal co-ordination within the structure of ministerial conferences involves all
the sixteen Länder. The meetings of these conferences normally take place before the
180 The Conference of the Länder Ministers of European Affairs has a substructure composed of a permanent working group and four to five ad hoc working groups. In May 2003 there were four
216
217
meeting of the Bundesrat and decisions by consensus are made prior to majority
voting in the upper chamber. As the interministerial conferences are non-formalised
institutions, their decisions are not legally binding. However, they have a high
political standing (Nettesheim, 2002: 264) and are seldom changed in the Bundesrat.
In this respect the German intergovernmental structures of co-ordination differ from
the Belgian system where in fields of federated entities’ exclusive competence no
interministerial conferences have been established. In Belgium, sector-oriented
conferences co-ordinate only the shared competences and thus have the function of
inter-level co-ordination. In contrast to Belgium, in Germany non-formalised co-
ordination in fields of federated entities’ exclusive prerogatives is institutionalised.
During the co-ordination of European policies on the domestic level it may even
happen that the discussion of certain topics on the agenda of the Bundesrat is
postponed because the position of a ministerial conference is still undefined.181 In this
way, in the shadow of the decision making in the Bundesrat, which is based on
majority voting, to some extent there still exists the old system of co-ordination
practised up until 1987 where the horizontal co-ordination was undertaken in the
structure of interministerial conferences based on consensus rules. Although this
procedure is highly institutionalised and practised in the framework of the existing
institutional structures, it does not have a legal basis. Thus, at least in fields of
exclusive competence of the Länder, consensus-based decisions are taken on the non-
formalised level prior to majority decisions in the structure of formalised institutions.
This means that compared to the formalised mechanisms of co-ordination, where the
Länder are not equal to each other (see above), in the structure of non-formalised co-
ordination in fields of federated entities’ competence, these entities have equal
negotiating powers.
Apart from the interministerial conferences mentioned above, common positions and
political solutions are found within the structure of the working groups composed of
federal and Länder representatives (Bund-Länder Arbeitsgruppen). These working
groups do not have a constitutional or any other type of legal status. They are
working groups on the future of the EU, methods of open co-ordination, electronic exchange of documents, and structural funds. 181 Interviews with German Länder officials, Berlin, June 2001.
217
218
institutional arrangements grown out of federal practice. The number of the Länder
involved in the working groups varies from subject to subject. They are created on an
irregular basis for a limited time-span and are thus subject-oriented serving the aim to
reach consensus on relevant political questions. However, the activities of these
working groups are not restricted to European affairs. They serve as a method of
Bund-Länder co-ordination in general. In addition to the institutional mechanisms
mentioned above, key decisions are often taken within a non-formalised network of
the Federal Chancellor and the Conference of the Länder Minister Presidents.182
As far as the positions of the Bundesrat is concerned, the latter normally indicates in
the recommendation (Beschlußempfehlung), to which degree its opinion has to be
considered. In certain instances where according to the Bundesrat a serious
consideration has to be given to its opinion, there are disagreements between the latter
and the federal government. In the vast majority of cases such disagreements concern
the degree to which the position of the Bundesrat has to be taken into account
(according to Article 23 BL) rather than the contents of the EU draft law. Since no
special inter-level co-ordination mechanisms are foreseen to find a compromise in the
case of disagreement between the levels, the co-ordination is purely informal and
positions are exchanged via letters and phone calls. Most of the time this is done even
before the start of the Bundesrat procedure as regulated in Article 23 BL, after the
latter informally communicates its objections to the responsible authorities in the
federal government.
Since the German Länder have a comparatively limited number of legislative
competences, it happens rather seldom that the main topic of EU draft laws affects
these competences. Hence, it is sometimes difficult for the Länder to prove that
conditions for a serious consideration of their opinion are given. In the broadest
majority of cases, where the Bund and the Länder defend divergent positions, the
disputes take place around the question to which extent European regulations affect
the prerogatives of the Länder. Disagreements between the two levels with regard to
the substance of the German position are seldom.183
182 Interview with a German Länder official, Berlin, June 2001. 183 Interviews with German federal and Länder officials, Berlin, June 2001 and May 2003.
218
219
In cases of dispute between the two orders no successful attempts have been made
from the side of the Länder to make decisions based on a two-thirds majority
(Beharrungsbeschluß) in order to overrule the position of the federal government.
Because these disagreements concerned formal questions (for example, to which
degree the federal government had to consider the position of the Länder) rather than
issues related to the substance of the German position in the Council of Ministers, the
Federal Constitutional Court has never been involved to settle controversies. It seems
that in the practice of inter-level co-ordination once there is a disagreement between
the orders, it is difficult for the Länder to convince the Bund.
On Bundesrat level there has been only one attempt in December 1999 to reach a two-
thirds majority necessary for the so-called ‘Beharrungsbeschluß’. This happened
during the domestic co-ordination process concerning the Environmental Impact
Assessment Directive (EIA). The Bundesrat had recommended the federal
government not to vote for the EIA directive and to give a serious consideration to
this recommendation. The Länder justified their position by the fact that the main
topic of the European directive in question affected their administrative facilities and
responsibilities. The federal government disagreed and expressed its intention to vote
for the directive. However, the final standpoint of the Bund remained undefined until
the last moment.
In order to prevent the federal government from voting in favour of the directive, the
Länder made an attempt to express their opinion by means of a decision made in the
Bundesrat by a two-thirds majority. If taken by a two-thirds majority, the decision of
the Bundesrat would prevail over that of the federal government. As the meeting of
the European Council of Ministers was going to take place before the following
monthly plenary of the Bundesrat, it was decided to vote in the Europe Chamber
(Europakammer) of the Bundesrat. The Europe Chamber was created in 1992 and
consists of a representative or a deputy representative from each Land. Its decisions
have the same legal status as the decisions of the Bundesrat.184 The attempt turned out
184 Between 1993 and 2003 the Europe Chamber met only three times in 1993, 1995 and 1999. Up until 1993 the Bundesrat had an EC Chamber (EG-Kammer), created in 1988. In contrast to the Europe Chamber, the EC Chamber could take decisions not only in its plenary sessions but also via the so-called Umfrageverfahren in the written form in order to speed up the decision making procedure. The
219
220
to be unsuccessful, as the Länder did not manage to reach a qualified majority in the
Europe Chamber.185 Consequently, there was no obligation for the federal government
to follow the position of Bundesrat. Contrary to the Bundesrat’s recommendation, the
federal government voted for the EIA directive (for a more extensive analysis, see
Fischer and Koggel, 2000: 1742-1751).
This case illustrates that, given the complex procedural requirements, in the event of
disagreement it is difficult for the Länder to convince the federal government via the
envisaged institutional procedures. Contrary to the Belgian system, where in the case
of inter-level disagreement on the domestic level the Belgian representative has to
abstain in the Council, divergent positions on the internal level create no voting
restrictions for German representatives. Whereas we can say that the lower the
number of abstentions in the Council of Ministers by Belgian representatives, the
lower the number of unresolved conflicts on the internal level, in the German case, we
have to be more careful while making similar conclusions. The number of abstentions
does not give any evidence on whether the Länder position is taken into account or
not.186
Sometimes the federal government refuses to give a serious consideration to the
viewpoints of the Länder according to Article 23, 2 BL and § 5, 2 LC because it
thinks that the main topic of the European regulation in question does not affect the
legislative competences of the Länder. However, both federal and federated
authorities have repeatedly stressed that the Bund normally integrates the concerns of
current regulations with regard to the Europe Chamber do not include this possibility any more (Oschatz and Risse, 1995: 448; Fischer and Koggel, 2000: 1742-1751). 185 The failure of the Länder to reach a two-thirds majority can be traced back to party political considerations of the Länder governed by the Social Democratic Party. As the Länder with Social Democrats in their government coalitions had a majority in the Bundesrat, they avoided an institutionalised controversy between the Social Democratic federal government and the upper chamber. The two Länder governed by Social Democrats, Nordrhein-Westfalen and Saarland (they have respectively 6 and 3 votes in the Bundesrat), were not present during the final voting procedure in the Europe Chamber of the Bundesrat. As the so-called ‘Beharrungsbeschluß’ has to be taken by a two-thirds majority of all members and not only of those present at the meeting, the attempt to adopt a position failed in the Europe Chamber (Interview with a Bundesrat official, Berlin, June 2001; Interview with a German federal official, Berlin, May 2003). The outcome of these voting procedures might have been different, had the Länder with Christian Democratic governments had the majority in the upper chamber. 186 German representative in the EU Council of Ministers abstained four times in 1996, twice in 1997, seven times in 1998 and once in 1999. There were no abstentions in 2000 (this data have been obtained from an unpublished document received during an interview with a German federal official, Brussels, March 2001).
220
221
the federated entities into the German negotiating position on the EU level. In
practice, federal authorities attribute an important role to the expertise provided by the
Länder as the latter administer the majority of EU legislation on the domestic level.
Thus, even if the federal government has the last say with regard to the degree to
which the standpoint of federated entities has to be integrated in the German position,
in practice this formality plays a far less relevant role.187
Non-formalised vertical and horizontal co-ordination takes place also in Brussels
between the Permanent Representation of Germany to the EU and the 16 Länder
offices.188 In order to exchange information on various EU-related issues, the Head of
the Permanent Representation meets regularly - normally once a month - with the
heads of the Länder offices. The Permanent Representative gives a briefing to the
offices of the Länder before and after every meeting of the EU Council of Ministers.
However, there are no direct and regular links between the Permanent Representation
and the Bundesrat. Specialised horizontal co-ordination among the Länder takes place
in the structure of working groups (Arbeitskreise) composed of the referents
(Referenten) from Länder offices and the members of the Permanent Representation.
End of 2002 there were eleven working groups concentrated on various issues such as
environment, education, culture, media and information society, health care, regional
policy, enlargement, research and development, transport, justice and internal affairs,
economy, energy and finance, agriculture and social policy. These non-formalised
working groups seek to establish contacts with EU institutions, in particular with the
Commission. Apart from the links with European institutions and the Permanent
Representation of Germany in Brussels, the working groups try to develop regular
contacts with corresponding sector-oriented conferences of the Länder. Non-
formalised contacts are also established between the EU committee of the Bundesrat
187 Interviews with German federal and Länder officials, Brussels, March 2001; Berlin, June 2001 and May 2003. 188 The first representations of the German Länder in Brussels, the so-called Länder offices (Länderbüros) were opened in the mid-eighties. In the meantime all the 16 German Länder have representation offices in Brussels. The members of the Länder offices are representatives of respective ministries of the Länder. Bigger and economically stronger federated entities have larger offices including representatives from almost each ministry. The Austrian Länder, except for Vorarlberg, also have similar offices. As for the Belgian federated entities, the geographical proximity of their governments to the European capital made it superfluous to establish such offices. As outlined above, the Belgian Communities and Regions have their delegations in the Permanent Representation of Belgium to the EU.
221
222
and the European Parliament. The former has a liaison office (Verbindungsstelle) at
the EU Parliament.189
As for the horizontal non-formalised co-ordination on the federal level, it takes place
in the structure of monthly meetings of EU secretaries of state (Staatssekretäre), and
the meetings of the heads of EU divisions in federal ministries, which are organised
every two weeks. Whereas the Permanent Representative of Germany participates in
these non-formalised meetings aimed at discussing and determining the German
policy towards the EU, the Länder are not involved in these meetings on the federal
level. Neither are they allowed to send representatives to the meetings of the
Committee of Permanent Representatives (COREPER).190 Federal authorities have
been refusing to give the Länder this right. However, the Länder representatives are
involved in weekly meetings aimed at determining the position of the Permanent
Representative in the COREPER (Weisungsabstimmung für AStV). In cases where
they have the right to express a position that has to be taken into account by the
federal government, the Länder also have the right to demand representation in
working and expert groups of the Council and the Commission. Out of ca. 380
working groups of the Council of Ministers and the Commission the German
federated entities are represented in about 320 working groups by at least one and
sometimes two representatives.191
The German Länder have not succeeded so far in establishing a delegation of
federated entities within the structure of the Permanent Representation, as it is the
case in Belgium and Austria (see below). However, there is an office of the so-called
Länder Observer (Beobachter der Länder) in Brussels, which is not integrated into the
structure of the German Permanent Representation to the European Union. Since 1956
the Länder Observer is entitled to be part of the German delegation in the meetings of
189 Interview with a German federal official, Brussels, March 2001. Interviews with German Länder officials, Brussels, March 2001 and Berlin, June 2001. 190 All the documents that have to be dealt with in the Council of Ministers have first to be discussed in the COREPER. The issues previously approved by the Permanent Representatives in the COREPER, the so-called ‘A-Points’, are just rubberstamped en bloc by the Council without discussing them. Other issues on which no agreement has been reached yet or highly relevant topics, the so-called ‘B-Points’ (A-Punkte und B-Punkte) are discussed in detail in the Council of Ministers. Thus, the COREPER functions as a decision making organ, which takes some of the decisions that normally have to be made in the Council of Ministers at a later stage (Schweizer and Brunner, 1998: 16). 191 Interviews with German federal officials, Brussels, March 2001 and Berlin, May 2003.
222
223
the EU Council of Ministers. However, his/her role is rather passive within these
institutional structures, as he/she does not have the right to speak and is held
responsible for writing reports of the meetings. It can be learned from these reports to
which extent the federal government incorporates the positions of the Länder into the
German negotiating position at the EU level (on the role of the Länder Observer see
Dette-Koch, 1997: 169-171).
Compared to the representations of the German Länder, also called missions or
interest offices, to the federal government in Berlin, the activities of the Länder
offices in Brussels are far less formalised. Whereas the Länder representations in
Berlin are directly involved in the federal legislative procedure via the Bundesrat, the
activities of the Brussels’ offices are restricted to non-formalised communication
channels with German federal and European authorities aimed at establishing
information links between the Länder and the European level.192
As for the Länder missions to the Federation in Berlin, they have historical roots in
Germany’s confederal past. In the German federation under Basic Law the interest
offices of the Länder have no legal basis. Their establishment is required neither by
federal nor by Länder constitutions. There is no legal document, which regulates their
composition and functions either. The only formal but brief reference to the Länder
offices is made in the standing orders of the Bundesrat (Rule 15, 3 and 4). It is up to
single federated entities to determine the organisational structure and the activities of
their interest offices. However, the structure of the most interest offices reflects the
division of the respective Länder governments into ministries.
Despite the non-formalised character of the institution of Länder missions to the
Federation, these missions are involved via formalised channels in the federal
legislative process. This is a unique feature of German intergovernmental relations. In
a number of federal states such as the USA, Austria or Switzerland (some) federated
entities are in one way or the other represented in the federal capital. However, the
German federal system is the only one that provides for the involvement of the Länder
192 The network, in which the Länder offices are involved is composed of the latter, the European Commission, the European Parliament (the European deputy from the respective Land), the Committee
223
224
offices via formalised channels in the federal legislative process (De Villiers, 1999: 5
and footnote 34). The main function of the Länder missions is to express the positions
of the respective federated entities in the Bundesrat and its committees during the
legislative process. In the committee process, civil servants from the missions vote on
the instruction of their respective governments. This means that civil servants from
the representation offices of the Länder are directly involved in the co-ordination
process of European affairs on the domestic level.193
To summarise, the German co-ordination system is characterised by the parallel
functioning of formalised and non-formalised institutional mechanisms that are not
mutually exclusive. Non-formalised structures rather exist in the background of
formalised institutional set-ups and very often both operate simultaneously. Decisions
on the non-formalised level are taken prior to or at the same time with decisions on
the formalised level and serve as a type of additional legitimising mechanisms of the
latter.
In Belgium the process of Europeanisation went hand in hand with the process of
federalisation and resulted in the creation of specific institutional structures charged
exclusively with inter-level co-ordination of European policies. The German system
of co-ordination of European policies, on the contrary, is to a large extent conducted
in the framework of the already existing institutional structures. This applies to
formalised as well as to non-formalised mechanisms and institutional structures of co-
ordination. On the formalised level the participation of the Länder takes place via
Bundesrat whereas on the non-formalised level intergovernmental sector-oriented
conferences and Bund-Länder working groups play a key role. All these institutions
existed independently of the European integration process.
The most obvious impact of Europe on the institutional structures of inter-level co-
ordination is the establishment of the so-called Europe Chamber of the Bundesrat on
of the Regions and the Permanent representation of Germany to the EU (for greater details on Länder offices see Neunreither, 2001). 193 Apart from participation in the federal legislative process, the functions of the Länder missions are, among others, representation of the Länder to the Federation in political, economic or cultural affairs, horizontal co-operation with other federated entities at the federal level, involvement in the field of international relations on behalf of the Länder (see section 4.1.3.2 with regard to the regulations of the
224
225
the formalised level in 1992 whereas on the non-formalised level the Conference of
the Länder Ministers of EU Affairs was founded in the same year. The practical
relevance of the first institution remained relatively limited as it met only three times
during the past ten years. As for the second institution, this interministerial conference
has a high political standing although its decisions are not binding.
As for the types of relationship structure between federal and federated authorities, on
the non-formalised level there is a higher degree of interdependence than on the
formalised level. Horizontal non-formalised mechanisms put the Länder on an equal
level which each other and establish a high degree of interdependence among them.
As for vertical mechanisms of non-formalised co-ordination, they also tend to
strengthen the Länder vis-à-vis the federal government, and thus lead to a higher
degree of interdependence between the orders than on the formalised level. However,
in cases of disagreement between the levels, the federal government maintains a
potentially dominant position, especially if the Länder fail to effectively use the
complicated institutional mechanisms at their disposal and choose not to apply to the
Federal Constitutional Court either.
4.2.1.3 Austria
4.2.1.3.1 Formalised mechanisms
The Austrian system of co-ordination of European policies and of Länder
participation in these co-ordination processes was established between the application
of Austria for EU membership in 1989 and its full accession in 1995. Inter-level co-
ordination mechanisms are regulated in Article 23d of the federal constitution194 – the
Bundesverfassungsgesetz (B-VG) – and in the Agreement between the Federation and
the Länder According to Article 15a B-VG on Participation Rights of the Länder and
Lindau Agreement and the Permanent Treaty Commission) and providing feedback to the legislative bodies of the Länder concerning Bundesrat matters (De Villiers, 1999: 7-9). 194 The first constitutional regulation of Bund-Länder co-ordination in European matters took place in 1992 in Article 10, 4-6. After the creation of a special section in the constitution named ‘B. European Union’, the regulations of Article 10 were transformed, with some changes, into Article 23d.
225
226
Municipalities in Matters of European Integration concluded on 12 March 1992.195
Article 23d B-VG regulates the general principles of Bund-Länder co-ordination and
refers to the above-mentioned agreement for more detailed rules. This agreement has
a fully legal character and the Bund-Länder relationships as regulated by it have a
formalised status.
The Austrian discussion concerning the internal co-ordination system of European
policies was stimulated by and took place parallel to the discussions in Germany,
where the Länder were demanding more participation rights in the EU framework.
The Austrian model of domestic co-ordination indeed resembles the German one to
some extent. However, besides the similarities there are substantial differences
between the German and the Austrian inter-level mechanisms of co-ordination.
On the federal level the Federal Chancellery and the Federal Foreign Ministry deal
with EU affairs. Since Austria’s membership in the EU up until 2000 European
policies in Austria were co-ordinated jointly by these two institutions. This way the
workload related to domestic co-ordination of EU policies was shared between the
two big parties that composed the so-called ‘Grand Coalition’, the Social Democrats
(SPÖ) and the Austrian People’s Party (ÖVP). In the Austrian ‘Grand Coalition’
traditionally the Federal Chancellor was a social democrat, whereas the Foreign
Minister was a representative of the People’s Party. After the change of the governing
coalition in 2000, the so-called Law on Federal Ministries (Bundesministeriengesetz)
which entered legal force in April 2000 changed the division of labour between the
Federal Chancellery and the Foreign Ministry.196 According to the new law the co-
ordination of European affairs became increasingly subordinated to the Foreign
Ministry, whereas the Federal Chancellery remained responsible only for general
matters related to Austria’s membership in the EU. However, both institutions retain
co-ordination channels to the Länder and, according to Article 23d B-VG, the Federal
Chancellery remains the main contact authority for the federated entities. The
195 The German full name of the agreement is Vereinbarung zwischen dem Bund and den Ländern gemäß Art. 15a B-VG über Mitwirkungsrechte der Länder und Gemeinden in Angelegenheiten der Europäischen Integration. 196 The division of labour between the two big parties as it existed until 2000 became superfluous because under the governing coalition that came to power in 2000 (the Austrian People’s Party together with a smaller partner, Free Democratic Party) the People’s Party controls the Federal Chancellery as well as the Foreign Ministry.
226
227
positions of the Länder reach the federal ministries charged with sector-oriented co-
ordination of European dossiers via the Federal Chancellery.
Unlike Germany, the Austrian system of co-ordination takes place outside Bundesrat
structures.197 In this sense, it rather resembles the Belgian model of co-ordination,
where the Senate is not involved into the intergovernmental co-ordination process on
the internal level. Thus, the Austrian Bundesrat, which is considered to be a relatively
weak second chamber in a comparative perspective (see section 3.1.4), does not gain
importance in the context of domestic co-ordination mechanisms of European
policies. The exclusion of the Bundesrat from the institutional structures of co-
ordination means that the Länder participation does not take place on the federal level,
as it is the case in Germany.
Formalised mechanisms of co-ordination of European dossiers in Austria differentiate
between two degrees of Länder involvement into European matters. In this respect the
Austrian model resembles the German one. The degree of federated entities’
involvement in European policy co-ordination varies according to the extent, to which
the competences of the Länder are affected by EU regulations. Consequently the
Länder may take either simple (einfache) or unified (einheitliche) positions. Whereas
Article 23d of the federal constitution explicitly mentions only unified positions, the
Bund-Länder agreement differentiates between two types of positions – simple and
unified. The difference between them lies in the way they are taken and expressed by
the federated entities.
Simple positions do not require prior co-ordination and may be expressed separately
by the Länder. There is no need for a consensual basis and Länder positions may even
be divergent. The Bund is not bound by such positions and its only responsibility is to
take them into consideration. In cases, where the Länder consider it appropriate,
simple positions may also be taken collectively. However, these so-called common
positions (gemeinsame Stellungnahme) remain non-binding. If simple or common
197 However, the Austrian Bundesrat has a special committee for EU affairs, composed of one third of its members. The parliaments of Austrian federated entities have also established committees for EU affairs.
227
228
positions are not taken into account by the Bund, the Länder do not avail of any
formalised mechanisms to raise an objection.
In case the European initiatives affect the legislative competences of the Länder, the
latter have the right to take a so-called unified position, which binds the Bund.
However, the federal government may deviate from the position of the Länder out of
cogent foreign and integration political reasons (zwingende außen- und
integrationspolitische Gründe) (Article 23, 2 B-VG). Federal authorities have to
immediately communicate this deviation to the Länder. In the event of disagreement
between the levels, no formalised inter-level co-ordination mechanisms and
conciliation processes are foreseen on the internal level. As a last resort the Länder
can apply to the Federal Constitutional Court. In order to do so, the legislative organs
of all federated entities have to agree to start a legal procedure against the federal
government (Rosner, 2000: 69).
Whereas according to the Austrian regulations the federated entities are involved in
European affairs only in fields of their legislative competence (Article 23d, 2 B-VG
and Article 6, 1 Bund-Länder Agreement), the corresponding regulations in Germany
apply to legislative competences as well as to administrative facilities and functions of
the Länder (Article 23, 5 BL and § 5, 2 LC). This means that compared to the German
system of inter-level co-ordination, Austrian mechanisms exclude the possibility for
the Länder to influence the Austrian bargaining position on the EU level in fields of
their administrative prerogatives. This is a considerable limitation of the Austrian
federated entities’ role in the European policy making given that on the domestic level
the legislative competences of the Austrian Länder are relatively limited whereas their
administrative functions are far reaching. It should be reminded here that the Austrian
Länder administer not only their own laws but also the majority of federal legislative
acts (see sections 3.1.6 and 3.2.3).
The federal constitution and the Bund-Länder Agreement leave open the question
how unified positions have to be co-ordinated on the horizontal level i.e. among the
Länder. However, according to the agreement between the Länder on decision making
228
229
in matters of European integration concluded in November 1992,198 the horizontal co-
ordination should take place in the so-called Integration Conference of the Länder
(Integrationskonferenz der Länder). The latter consists of the Heads of Länder
Governments (Landeshauptmänner) and the Presidents of Länder Parliaments
(Landtagspräsidenten). In this sense on the formalised level the parliaments of the
Austrian federated entities have a more important function in the institutionalised
process of co-ordination than the legislative bodies of the German Länder or of the
Belgian Regions and Communities. Each Land avails of one vote in the Integration
Conference of the Länder. According to the Länder Agreement, unified positions are
taken by the Integration Conference when at least five out of the nine Länder give
their consent to the proposal and none of them is explicitly against it. In this respect,
unified positions differ to a considerable extent from unanimous positions. In fact the
voting rules of unified positions represent a mixture of elements characteristic for
both majority voting and unanimity rule.
Another key institution in the process of co-ordination of European policies is the
Joint Office of the Länder (Verbindungsstelle der Bundesländer), which was
established in 1951 at the office of the Government of Niederösterreich. After the
recognition of this institution by the federal government in 1966 via establishing
official contacts with the Joint Office, the latter became the central intermediary body
between the Federation and the Länder. The Joint office of the Länder is a formalised
institution. It has standing orders (Geschäftsordnung) concluded in 1951 between the
governments of the nine Austrian federated entities according to Article 107, now
Article 15a, of the Federal Constitution. These standing orders is a legally binding
document.
In contrast to Germany, the Austrian Länder do not have representation offices to the
federal government, but instead interact with the Bund via the Joint Office. Being
composed of approximately 12 persons and the Head of the Office, the Joint Office
serves the aim of information exchange on the horizontal as well as the vertical levels.
It is supposed to communicate the unified positions of the Länder to the respective
198 In German, Vereinbarung zwischen den Ländern gemäß Artikel 15a B-VG über gemeinsame Willensbildung der Länder in Angelegenheiten der europäischen Integration.
229
230
federal authorities, normally to the Federal Chancellery (Article 23d, 1 B-VG).199 The
Joint Office is normally not involved in the preparation of the so-called simple
positions that are non-binding. The Bund in its turn is also obliged to communicate
with the federated entities through the Joint Office of the Länder. This happens, for
instance, when it invites the Länder to express their unified position on EU matters
according to Article 23d, or informs them about the deviation of the federal
government from a binding position of the Länder out of cogent foreign and
integration political reasons. The Joint Office of the Länder functions as a secretariat
(Geschäftsstelle) of a number of Länder conferences, such as the Conference of the
Heads of Länder Governments (Landeshauptmännerkonferenz), the Conference of the
Directors of Länder Departments (Landesamtsdirektorenkonferenz) and the
Conference of Länder Experts (Landesexpertenkonferenz) (on these conferences see
the next section).
As far as the communication between the European institutions and the Austrian
federal and federated authorities is concerned, an important role is played by the
Brussels’ branch of the Joint Office, which was created at the Austrian Permanent
Representation (then Mission) to the EU in 1990. This establishment is composed of
two persons subordinated to the Ministry of Foreign Affairs as well as to the Joint
Office in Vienna.200 The representatives of the Joint Office in Brussels participate in
the preparatory meetings of the Committee of Permanent Representatives.201
To summarise, the horizontal co-ordination among the Austrian federated entities is
done on the Länder level outside Bundesrat structures. Unlike Germany, where the
Bundesrat plays the central role and the intergovernmental conferences decide only on
certain issues, the Austrian Bundesrat is not involved in day-to-day European co-
ordination. In this respect the Austrian structures of co-ordination rather resemble the
199 In practice the notifications of the Joint Office of the Länder with regard to unified positions of federated entities are sent to the Federal Chancellery, the Ministry of Foreign Affairs as well as to other federal ministries responsible for the regulation in question. 200 Such a structure and a double subordination of the Brussels’s branch of the Joint Office serves the aim to provide the Länder with as much information as possible on European matters and developments (Rosner, 2000: footnote 537). 201 In this context the so-called weekly jour fixe on Tuesday afternoon – the main co-ordination meeting at the level of civil servants – has to be mentioned. The meeting is attended by all government departments, major interest groups, the Federation of Local Communities, the Central Statistical Office and the Joint Office of the Länder. These meetings are aimed at determining the positions Austria’s Permanent Representative is supposed to express in the following COREPER meeting.
230
231
Belgian model where the upper chamber of the federal parliament is excluded from
the institutionalised co-ordination of European policies. In Austria inter-level co-
ordination takes place in the structure of communication links between the federal
government and the Joint Office of the Länder. In contrast to the Belgian model, the
process of horizontal co-ordination among the federated entities is not monitored by
federal authorities, as it is done in the Belgian P. 11.
The voting rules in formalised inter-Länder structures of horizontal co-ordination lead
to highly interdependent relationships among the federated entities and are thus closer
to the Belgian rather than the German model. Interdependent relationships between
the two levels are established in case the European regulations affect the legislative
competences of the Länder. Otherwise the federal level has a superior position in the
framework of inter-level co-ordination mechanisms.
4.2.1.3.2 Non-formalised mechanisms
Due to its complex composition and a large number of participants the Integration
Conference of the Länder has a minor practical importance. In the first ten years if its
existence the conference met only twice.202 Instead of legally foreseen mechanisms,
horizontal co-ordination in Austria takes place in the structure of non-formalised
intergovernmental conferences.203 The central institution in this context is the
Conference of the Heads of Länder Governments (Landeshauptmännerkonferenz)
assisted at the administrative level by the Conference of the Directors of Länder
Departments (Landesamtsdirektorenkonferenz). The latter is subordinated to the
Conference of the Heads of Länder Governments and is responsible for the
preparation of its meetings.204
202 Interview with an Austrian Länder official, per telephone, July 2003. 203 Andreas Rosner defines Länder conferences in general as instruments of horizontal Länder co-ordination, in which all the Länder participate and which are voluntary, informal and consensus oriented (Rosner, 2000: 176). 204 The work of these two conferences is also assisted by the Conferences of Länder Experts, which have the function of expert working groups on the level of civil servants and which meet before decisions are taken in the Landesamtsdirektorenkonferenz.
231
232
Normally the Conference of the Heads of Länder Governments meets at least twice a
year. Apart from the Governors of the Länder who are members of this conference, its
meetings are attended by the representatives of the federal government (sometimes by
the Federal Chancellor), by the Head of the Joint Office of the Länder and the
members of the Landesamtsdirektorenkonferenz. Decisions in both conferences are
made by consensus. They function according to the principle of the so-called
Einhelligkeit (consensus). Einhelligkeit in the Austrian context means that no formal
voting takes place but discussions continue and modifications are made until either
each participant agrees or it becomes clear that no consensus can be achieved. Such
negotiation and voting rules create a basis first, for an equal position of every
participant during the decision making process and second, for decisions without a
party political bias. Thus, decision rules in the non-formalised set-ups of co-
ordination in Austria differ from those used in the formalised institutions to develop
unified positions.
Because the legally foreseen institutions of inter-Länder co-ordination proved to be
inefficient, the legally binding positions are taken by the federated entities in the
structure of non-formalised institutions. Consensus-based decisions of the Conference
of the Heads of Länder Governments as well as the Landesamtsdirektorenkonferenz,
which are non-formalised institutions, are legally binding when European regulations
affect the legislative competences of the Austrian federated entities. In case the
federal government disregards the binding position of the Länder, the latter can apply
to the Federal Constitutional Court.
The fact that the inter-level co-ordination in Austria is to a large extent practised in
the structure of non-formalised institutions has deserved scholarly criticism (Öhlinger,
1999: 10 (footnote 46); see also Rosner, 2000: 20). The Conference of the Heads of
Länder Governments is mentioned in the Federal Constitution, in a number of federal
laws, in the standing orders of the Joint Office of the Länder, in the Bund-Länder
Agreement as well as in the Länder agreement on European matters. These texts do
assume the existence of the Landeshauptmännerkonferenz. However, there exists no
legal document that would exactly define the functions of the conference. The latter
does not have standing orders either. The fact that since the mid-1990s the
Landeshauptmännerkonferenz has been increasingly mentioned in a number of laws
232
233
and agreements is related to the Austrian membership in the EU and the necessity to
co-ordinate European dossiers on the domestic level. Repeated demands of the Länder
to constitutionalise the conference remained unsuccessful (Rosner, 2000: 20-21).
Constitutional codification of the Landeshauptmännerkonferenz would be considered
as Europeanisation and in particular as increased formalisation of federal relationship
structures in the field of inter-level co-ordination of European policies.
Irrespective of critics and sceptical arguments made by some scholars concerning the
validity of unified Länder positions taken outside the formalised mechanisms, no
complaints have been expressed in this respect from the Bund. As long as it is clear
that the position is unified and incorporates the concerns of all the Länder, in the
political practice it remains irrelevant for federal authorities how the position is taken.
There are three types of unified positions. They may be taken either separately by the
Länder, or by the Integration Conference of the Länder - when at least five Länder
agree and none of them disagrees with the proposal - or within the structure of the
non-formalised intergovernmental conferences of the Länder. The Austrian federated
entities decide from case to case ad hoc according to which mechanisms and in the
structure of which institutional settings they formulate binding positions. However, in
the vast majority of cases such positions are taken in the structure of horizontal
intergovernmental conferences.205
As for specialised co-ordination, on the political level it takes place in the structure of
sector-oriented Conferences of the Länder Referents (Referentenkonferenzen). These
conferences are comparable to sector-oriented ministerial conferences in Germany.
The meetings of the Referentenkonferenzen are also attended by federal ministers, top
level civil servants of the respective Länder governments and one or two
representatives of the Joint Office of the Länder. The latter is the secretariat of the
conference. Decisions of the Conferences of the Länder Referents are taken by
consensus (Einhelligkeit) (Rosner, 2000: 43-55).
205 Interview with an Austrian Länder official, Vienna, November 2001. Interviews with Austrian academics, Vienna, November 2001.
233
234
In contrast to Germany, where general questions related to European integration are
co-ordinated on the horizontal level in the Conference of Länder Ministers for
European Affairs, no sector-oriented conference on European affairs has been created
in Austria. This is due to the fact that there are no ministers for European affairs in
Länder governments. Questions related to European integration are dealt with in the
Conference of the Heads of Länder Governments. Sector-oriented conferences existed
before Austria’s membership in the EU and can not be regarded as a product of
Europeanisation. Their number is not fixed. New specialised conferences may be
created on the initiative of the Länder.206 On the administrative level specialised
horizontal co-ordination is done in the structure of Conferences of Länder Experts
(Länderexpertenkonferenzen). The sector-oriented conferences both on political and
administrative levels are non-formalised mechanisms of inter Länder co-ordination. In
spite of the fact that they do not have a legal basis, these conferences represent
institutionalised instruments of horizontal co-ordination that have a relatively high
significance in the structure of federal relationships.207 Moreover, in the domestic co-
ordination process of European policies the non-formalised institutions, the decision
of which are otherwise non-binding, participate in the formulation of the binding
unified positions of the Länder.
Since the Austrian Länder avail of a limited number of exclusive competences, the
number of European initiatives that affect these competences is low. There are only
39 unified positions taken by the Länder from the time of accession up until 2001
(Rosner, 2001: 80). Between 1994 and 1998 the Länder have endorsed a unified
position 25 times (for the list of these positions see Rosner, 2000: annex, 27-30).
These data do not give any information on whether and to which extent these
positions have been incorporated into the Austrian negotiating position at the EU level
or have been rejected by the federal government. As for the so-called simple
positions, these are taken very frequently and expressed separately by the Länder
without prior co-ordination.
206 For example, the Conference of the Länder Referents for Youth Welfare was created in 2002. In 2003 the Conference of the Länder Referents for Economic Encouragement was established (Interview with an Austrian Länder official, per telephone, July 2003). 207 Interview with an Austrian Länder official, per telephone, July 2003.
234
235
Although not particularly frequent, binding positions have a relatively high practical
meaning as they normally find their way into the Austrian position expressed at the
European level. Up until the end of 2001 the federal government deviated from a
binding position of the Länder only once in 1998 when voting for the European
dossiers on keeping of wild animals in zoos.208 The legislation on animal protection in
Austria belongs to the prerogative of the federated level. Hence, the Länder expressed
a unified position regarding the European regulation mentioned above. The federal
government disregarded and justified the deviation from the standpoint of the Länder
by the presence of cogent foreign and integration political reasons as codified in
Article 23d, 2 of the Constitution (Institut für Föderalismusforschung in Innsbruck,
1999: 69).209 The disagreement between the Bund and the Länder did not result in any
institutionalised controversy. Instead of making use of their right to apply to the
Federal Constitutional Court, the Länder accepted the unilateral decision of the
federal representative in the Council of Ministers.210 This example shows that even if
in principle federal representatives are bound by unified positions of the Länder, it is
possible for the federal government to deviate from such positions during the decision
making process in the institutional structures of the European Union.
To summarise, in cases where EU regulations affect the competences of the Länder,
the horizontal co-ordination in Austria takes place almost exclusively within the
structure of non-formalised intergovernmental conferences. Such a system of co-
ordination differs from the Belgian as well as from the German models. We have seen
that in Belgium, the non-formalised horizontal co-ordination, which is conducted
outside the P.11 and is non-institutionalised, does not replace the formalised set-ups
of co-ordination but rather prepares decisions that are at a later stage endorsed on the
formalised level. Also in Germany the non-formalised intergovernmental conferences
208 In German, Vorschlag für eine Empfehlung des Rates für die Haltung von Wildtieren in Zoos, dated by 22 April 1998.209 The Austrian Federal Ministry of Environment, Youth and Family justified its deviation from the position of the Länder by using the following argument: as the decision on wild animals in zoos was taken unanimously in the EU Council of Ministers for Environment on 16–17 June 1998, a request for a separate recommendation from the Austrian side might have hindered not necessarily the decision making process as such but constructive long term co-operation with the British Presidency (Institut für Föderalismusforschung in Innsbruck, 1999: 69).210 Interview with an Austrian Länder official, Vienna, November 2001.
235
236
only function in the background of the formalised Bundesrat procedures and
supplement these.
As for formalised mechanisms of co-ordination, in Austria federal authorities are not
in charge of monitoring the horizontal formalised co-ordination as it is the case in
Belgium in the structure of the P. 11. Similar common institutional structures of co-
ordination, where both federal and federated entities are involved, do not exist in
Austria. Nor are Länder positions formulated by any federal institutions, such as the
Bundesrat in Germany. We can conclude that the Austrian system of inter-level co-
ordination draws a clear distinction between federal and federated levels as the
horizontal co-ordination takes place exclusively on the Länder level without any
direct institutionalised involvement of federal authorities. The Länder positions
already determined during the horizontal co-ordination process are later
communicated to the Federal Chancellery via the Joint Office of the Länder.
4.2.2 Representation in the European Council of Ministers
4.2.2.1 Belgium
4.2.2.1.1 Formalised mechanisms
The creation of the Belgian system of representation in the Council of Ministers was a
response to the then new Article 146 of the Maastricht Treaty. The increased
involvement of federated entities in European affairs between 1988 and 1993 was
formalised by the Co-operation Agreement between the federal government, the
Communities and the Regions concerning the representation of Belgium in the
Council of Ministers of the European Union, concluded on 8 March 1994. The special
system of representation was established under terms of this agreement (see table 6).
Four categories of EU Council of Ministers were identified in Belgium based on the
division of legislative and administrative competences on the domestic level and on
the type of competence - exclusively federal, exclusively federated, or shared between
the two levels – discussed in the Council. If the EU Council of Ministers deals with
issues that fall within exclusive competences of federal or federated levels, it is
236
237
identified respectively as category I and IV. The Councils that deal with competences
which to a large extent fall within federal prerogatives but parts of which are also
regulated either by Regions or by Communities are classified as category II. The
Councils of category III regulate competences that to a large extent fall under the
responsibility of federated entities, but parts of which are regulated by the federal
level as well. Thus, categories II and III deal with competences that are in one way or
the other shared between federal and federated orders. The composition of the
delegation that represents Belgium in the Council of Ministers changes according to
the type of the Council.
Table 6. The Belgian system of representation in the EU Council of Ministers
Category Competences Leader Assessor
I Exclusively Federal Federal None
II Predominantly Federal,
Partly Federated
Federal Region/Community
III Predominantly Federated,
Partly Federal
Region/Community Federal
IV Exclusively Federated Region/Community None
Source: Kerremans, 2000a: 42
Based on the distribution of competences in the Belgian federal structure, the Co-
operation Agreement mentioned above establishes the following classification of
various Councils of Ministers. The Councils of Ministers for general affairs, budget,
telecommunications, justice and home affairs, civil protection, consumer protection,
and ecofin belong to category I. The Councils for agriculture, environment, transport,
energy, internal market, employment and social affairs, and public health belong to
category II. Category III includes the Councils of Ministers for industry and research,
whereas to category IV belong the Councils for culture, education, youth, tourism,
regional policy and spatial planning (Annexe I, Co-operation Agreement).
237
238
As a consequence of the last federal reform of July 2001 a new expended system of
representation was established, which consists of six categories instead of four. Under
terms of the new system of representation, agricultural affairs are dealt with in a
separate category, in which the federal minister leads the delegation assisted by the
Flemish and Walloon regional ministers for agriculture. Fishery is also dealt with in a
separate category, which is exclusively subordinated to the prerogative of the Flemish
government. The Council of Ministers for Environment belongs to category III
instead of category II as regulated by the Co-operation Agreement. As the new system
of representation took effect only in July 2002 and consequently has a short history, it
will not be further analysed in this study.
In the process of representation, a division of power between the leader of the Belgian
delegation and its assessor has been established. The competences of the leader
comprise negotiation and voting. The assessor’s responsibilities are to attend the
meetings of the Council of Ministers, to speak on certain issues that fall within its
competence (with the permit of the leader) and if necessary to co-ordinate on the spot
by means of ad hoc contacts with non-participating authorities. The distribution of the
roles of leader and assessor between federal and federated units’ representatives
depends on the category of the Council. As the table shows, there exist four types of
Belgian delegations. Such a distribution of competences between federal and
federated authorities in the system of representation is meant to guarantee the
maximal degree of formalised involvement of federated units on the EU level. Under
terms of the Belgian system of representation federal, community and regional
governments are put on equal level with each other. In order to guarantee equality on
the horizontal level among the federated entities, a rotation system was established,
according to which the federated units’ representatives replace each other every six
months.
Within the Belgian system of representation there exists no hierarchy between the
federal and federated orders. The non-involvement of a federated unit’s representative
as assessor in the first category is offset by the non-involvement of a federal minister
in the fourth category. In fields of their exclusive competence Regions and
Communities have the right to represent Belgium alone in the Council of Ministers
without being assisted and accompanied by federal ministers. In categories II and III
238
239
we have changing combinations of the roles of leader and assessor depending on the
type of the Council of Ministers. Previously determined representatives of federated
entities are sent to the Council and the Regions and Communities do not have to ask
the federal government for permission every time they have to speak for Belgium on
the EU level. The list of representatives of federal and federated governments in the
Council is approved in advance by the Interministerial Conference on Foreign Policy.
Before each Council meeting the candidature of a minister, who is supposed to
represent Belgium in the Council, is formally approved by the P.11 and then
communicated to the secretariat of the Council by the federal Minister of Foreign
Affairs via the Permanent Representation of Belgium to the EU (Articles 8 and 9, Co-
operation Agreement).
Such a system of representation became necessary due to the internal division of
competences and ministerial posts in Belgium. As a matter of fact, in some exclusive
federated fields of competence, such as culture, there are no federal ministers.
Without a strict division of competences within the system of representation it would
not have been possible to send a competent minister to the respective Council. Up
until the establishment of the current system of representation, the federal minister of
agriculture used to represent Belgium in the Council of Ministers for Culture.
It has to be mentioned that the regulations described above apply only to the meetings
of the Council of Ministers and not to those of its working groups. In categories I, II
and IV the composition of the Belgian delegation is identical in the Council and in its
working groups. In category III, on the contrary, whereas in the Council meetings the
Belgian delegation is headed by a regional or a community minister, in the
corresponding working groups the leader of the Belgian delegation is always a federal
authority (Commissariat Général aux Relations Internationales et Division des
Relations Internationales, 2001: 90).211
211 Interview with a Flemish official, Brussels, September 2003.
239
240
4.2.2.1.2 Non-formalised mechanisms
On the non-formalised level, the Belgian system of representation in categories I and
IV actually follows the Co-operation Agreement mentioned above. Any deviation
from the regulations of the agreement would be almost impossible as neither federal
nor federated level could substitute the other in the Council. Their governments often
do not have the ministers responsible for the respective prerogatives as the matters
discussed in categories I and IV are regulated exclusively and independently by
federal or federated entities. As far as shared competences discussed in categories II
and III are concerned, the system of representation functions as envisaged by the law
on the administrative but seldom on the ministerial level. Whereas the leader of the
delegation is always a minister, its assessor is hardly ever present on the ministerial
level but instead a representative of the respective administration is sent to the
Council of Ministers. The tasks normally attributed to the assessor do not seem to be
very attractive or interesting for authorities on the ministerial level. Given their rather
busy schedule, these authorities do not show much interest in participation as an
assessor in the meetings of the Council.212
Even though there is formally a rotation system among the federated entities, it occurs
very rarely that only one of them represents Belgium when exclusive competences of
Regions and Communities are discussed in the Council of Ministers. Normally there
are two or even three regional and community representatives in the Council but only
one of them has the right to speak and vote. This non-formalised method of
representation is grown out of practical requirements of co-ordination, which often
make it necessary to modify the Belgian position on the spot.213 At this stage the
participating entities are interdependent on each other.
The non-hierarchical character of the Belgian representation system identified on the
formalised level is maintained within non-formalised structures of representation as
well. Although the practice of representation is slightly different from what is
envisaged by the law, it is not possible to detect any types of hierarchical relationship
between the levels, but instead a high degree of interdependence. As for the new
212 Interviews with Flemish and Francophone officials, Brussels, March 2001 and September 2003. 213 Interview with a Francophone official, Brussels, March 2001.
240
241
expanded system of representation, established in 2001 and practised since July 2002,
its short history makes it difficult to give any substantial analysis of the political
practice of representation.
During the Belgian presidency of the European Union in the second half of 2001 the
Regions and Communities could chair the Council of Ministers’ meetings in
categories III and IV. In this respect the Belgian presidency provided a unique
opportunity for federated entities: it was for the first time not only in the Belgian
history but also in the history of the European Union that the federated entities’
ministers chaired the meetings of the Council of Ministers.
In order to increase the efficiency in the system of representation during the Belgian
presidency, the rotation was fixed for one year instead of usual six months and the
following distribution of competences was established for the entire year of 2001. In
category III the Council of Ministers for Industry was chaired by Wallonia whereas
the Brussels Capital Region was chairing the Research Council. In category IV
Flanders was chairing three Councils of Ministers - those for education, youth and
tourism. The French Community was heading the Council for Culture whereas
Wallonia had the chair in the Council for Regional Policy and Spatial Planning. The
German-speaking Community was responsible for sending the assessor to the
Councils for Youth, Tourism, and Regional policy and Spatial Planning. A Flemish
representative was the assessor in the Council for Culture and a representative of the
French Community was assisting the Flemish leader in the Council of Ministers for
Education.
4.2.2.2 Germany
4.2.2.2.1 Formalised mechanisms
The German system of representation, which is regulated in Article 23, 6 of the Basic
Law and § 6, 2 of the Law on Co-operation, provides for various degrees of
involvement of the Länder in German delegations represented in the Council of
Ministers. The degree of Länder involvement is tied to their institutional position in
the legislative process on the internal level. If the Länder do not have exclusive
241
242
legislative competences on the domestic level but participate in the process of
legislation via Bundesrat, or if the EU draft law touches upon the essential interests of
the Länder, the federal government involves a Länder representative in the German
delegation on two conditions. First, if the Länder make an explicit request and second,
if it is possible for the federal government (§ 6, 1 LC). In this case a federal
representative is the head of the German delegation. However, with the prior consent
of the federal authority a Länder representative may express his/her position on
certain topics during the meetings of the Council of Ministers. The federal
government has the right to refuse the involvement of a Länder representative in
Council negotiations. A fixed division of labour and functions between a leader and
an assessor does not exist in the German system. Thus, the involvement of federated
entities in German delegations to the Council is determined not only by the internal
competence structure, as it is the case in Belgium. It also depends on the wish of the
Länder as well as on the decision taken in concrete circumstances by the federal
government. Such a relation of vertical dependence between the levels does not exist
in Belgium.
The most intensive involvement of the federated level in EU institutions takes place
when the main topic of an EU draft law, and not one of the topics regulated by it,
affects exclusive legislative competences of the Länder (‘im Schwerpunkt
betroffen’).214 In this case, a Länder representative on the ministerial level nominated
in advance by the Bundesrat should be sent to the Council of Ministers as the leader
of the German delegation. Potential Länder representatives in the Council of Ministers
of the EU are nominated by the Bundesrat for three years. The nomination of these
candidates is discussed first in the committees and then in the plenary sessions of the
Bundesrat. A minister at the Länder level who becomes the leader of the German
delegation is entitled to vote for Germany and has to act in co-operation with the
federal government (Article 23, 6 BL and § 6, 2 LC).
Thus, the representation of Germany in the Council of Ministers by its federated
entities is subject to a number of procedural restrictions, which result in a superior
214 Problematic in this context is the formulation ‘exclusive legislative competences of the Länder’ as such a formulation is not used or specified in the Basic Law. In this sense the term remains ambiguous.
242
243
position of the Bund within the framework of the domestic legal mechanisms
regulating representation. Formalised mechanisms of German representation in the
Council of Ministers create various possibilities for the federated entities’
participation in German delegations to the Council but do not make such participation
obligatory.
4.2.2.2.2 Non-formalised mechanisms
The political practice of German representation in the EU Council of Ministers is also
characterised by the primacy of the federal government. Länder representation in the
Council is not regularly practised and remains rather an exception. This happens first,
because those fields of competence, in which Article 23, 6 BL and § 6, 2 LC could
potentially apply, are relatively restricted: on the internal level the Länder have a
limited number of exclusive prerogatives. Second, the law imposes a further
restriction on the Länder. The latter can only be represented in the Council of
Ministers as the head of the German delegation if the main topic of the EU draft law
in question affects their exclusive competences. Potentially a Länder representative
can be sent to four European Councils, those for culture, education, justice and
internal affairs, and scientific research. Each of these Councils meets at least once per
presidency, i.e. at least twice a year. This means a minimum of 80 potential cases
between 1993 and the end of 2002 where the Länder could have claimed their right to
head the German delegation under the condition that the main topic of an EU
regulation affected their exclusive legislative competences.
Between 1993 and the end of 2002 there have been 27 cases where the Länder
expressed their wish to head the German delegation in the Council of Ministers as
regulated in Article 23, 6 BL and § 6, 2 LC. Out of these 27 cases the federal
government denied a Bundesrat-nominated representative eight times to head the
German delegation, which means that in the broader majority of cases where the
Länder claimed their right to representation, this right was not contested by the federal
government. Normally a Länder representative heads the German delegation about
Exclusive competences of the German federated entities are those, which are not attributed to the federal level according to the Basic Law (Oschatz and Risse, 1995: 446).
243
244
twice a year on average (Sekretariat des Bundesrates, Büro des Ausschusses für
Fragen der Europäischen Union, 2002: unpublished document).215 Controversies
between the levels arise when the topics regulated by EU draft laws fall partly within
federal and partly within federated prerogatives. In such cases, the inter-level
disagreements in the first place concern the division of responsibilities between
federal and federated authorities and the question whether domestic regulations with
regard to Länder representation on the EU level apply in this particular case. Disputes
between the representatives of federal and federated orders related to the contents of
the EU legislation are extremely seldom.
In case the request of the Länder to head the German delegation is rejected by the
federal government, informal consultations between the representatives of the two
levels take place. Exchange of letters and phone calls are the main means to sort out
divergent positions. Since the last word in these informal negotiations remains with
the federal government, there is very little the Länder can do in order to persuade
federal authorities. Controversies between the orders have so far never been sorted out
by means of legal instruments and courts have not been involved to solve such
disputes. Instead, two types of pragmatic compromises are normally found in case
there is a controversy between the Bund and the Länder regarding the representation
of Germany on the EU level. Either the federal government heads the delegation but
makes sure that the concerns of the Länder are incorporated in the German position,
or the Länder are given the opportunity to vote only on those parts of the EU draft
regulation that affect their interests or competences (themenbezogene Benennung).216
The first conflict between the federal government and the Bundesrat arose in 1994
shortly after the introduction of the new regulations of German representation in the
Council of Ministers. This happened when Socrates program on student exchange was
on the agenda of the Council of Ministers and the Bundesrat expressed the intention
215 The document of the Bundesrat’s Committee on European Union Affairs lists all the cases between 1993 and end of 2002, in which the Länder have claimed their right to representation as the head of the German delegation in the EU Council of Ministers. However, it does not indicate the outcome of all of these claims. This means that based on the document it is impossible to determine whether the Länder really represented Germany in the Council in cases where their demand was not rejected by the federal government. 216 Interviews with German federal and Länder officials, Berlin, June 2001 and May 2003.
244
245
of the Länder to represent Germany in the Council. The federal government objected.
After unsuccessful consultations on the administrative level, negotiations were
conducted on the political level between the president of the Conference of the Länder
Ministers for Culture and the Secretary of State (Staatssekretär) in the Federal
Ministry for Education and Science. Apart from that the State Minister
(Staatsminister) in the Federal Chancellery and the Permanent Council (der Ständige
Beirat) of the Bundesrat were involved in the negotiating process. In spite of this no
compromise could be achieved. It was impossible for federal and federated authorities
to agree on what was the main topic of the draft law and more particularly on the
question whether the latter affected the exclusive competences of federated entities.
Finally, it was the federal government that headed the German delegation in the
Council of Ministers of the EU (Oschatz and Risse, 1995: 446-447 and footnote 98).
Since the federal government and the Länder could agree on the contents of the
German standpoint in the Council, the Länder could not head the German delegation
but were given the possibility to make some explanatory remarks on certain topics of
the EU proposal during the Council meeting.
Because the legislative competences in the field of higher education are shared by the
Federation and the Länder - the Federation is responsible for framework legislation in
this field (see section 3.2.2) - disagreements between the levels concerning the
question to which extent EU draft laws on higher education affect the legislative
competences of the Länder are frequent. In the vast majority of cases where the
federal government refused to send a Länder representative as the head of the German
delegation to the Council of Ministers, the EU draft laws regulated questions related
with education and in particular higher education (Sekretariat des Bundesrates, Büro
des Ausschusses für Fragen der Europäischen Union, 2002: unpublished document).
As far as the nomination of Länder representatives is concerned, a non-formalised
institution called ‘working group Länder representatives’ has been established within
the structure of the Bundesrat. This working group was created in 1995 on the basis of
a proposal made by the Secretariat of the Bundesrat and endorsed by the 10th
Conference of the Länder Ministers for European Affairs. The composition of the
working group is identical with the composition of the Committee of European
Affairs of the Bundesrat. But in contrast to the latter the activities of the working
245
246
group are co-ordinated by the State Ministry (Staatsministerium) of Baden-
Württemberg.217
Contrary to the Belgian model, where the representatives of Regions and
Communities are sent to the European Council of Ministers whenever their
competences are on the EU agenda, under terms of German regulations the Länder
have to make a formal request every time they want to head the national delegation. In
this context they are to a substantial extent dependent on the decision by the federal
government. Thus, although the German representatives in the Council of Ministers
are predetermined, it is not sure whether they will be sent to the Council every time
federated competences are affected by European draft laws. It has to be noted that the
number of cases where the German delegation was headed by a representative of
federated entities decreased in the last years. For the whole period between 1998 and
2002 a representative of the Länder was the leader of the German delegation only
three times (Sekretariat des Bundesrates, Büro des Ausschusses für Fragen der
Europäischen Union, 2002: unpublished document). According to the federal
government, the Länder tend to see the issue on the EU agenda from their own
perspective rather than from the perspective of the federal state as a whole. However,
as mentioned above, the positions of the federated entities are normally incorporated
in the German position on the EU level no matter who is entitled to represent
Germany in the Council of Ministers.
4.2.2.3 Austria
4.2.2.3.1 Formalised mechanisms
Article 146 of the Maastricht Treaty found a concretisation also in the Austrian legal
regulations with regard to representation of the federal state in the EU Council of
Ministers. The participation of federated entities in Austrian delegations is regulated
in the federal constitution as well as in the agreement between the Bund and the
Länder concluded in 1992 (see above). According to Article 23d, 3 B-VG, a Länder-
nominated authority on the ministerial level can represent Austria in the decision
217 Interviews with German federal and Länder officials, Berlin, May 2003.
246
247
making process in the Council of Ministers under the condition that the EU initiative
discussed in the Council also affects the subject matters, which on the domestic level
belong to legislative competences of the Länder.218 According to this regulation, a
representative of the Länder has the right to head the Austrian delegation in the
Council of Ministers if the federal government empowers him/her to do so. Article
23d, 3 B-VG explicitly underlines the obligation of the Länder representative to co-
operate with federal authorities in the Austrian delegation, but does not specify the
extent, to which the representative of the Länder can act independently. This
formulation means that, contrary to the Belgian system of representation and along
with the German model, a federated authority on the ministerial level can never
represent Austria alone in the Council and is always accompanied by federal
authorities. In contrast to the German system, the regulation of Article 23d, 3 is not
contestable on the legal way. The Austrian Länder do not have the right to apply to
the Federal Constitutional Court in case the federal government refuses to empower a
Länder representative to speak for Austria in the EU Council of Ministers (Öhlinger,
1999: 13).
Article 8 of the agreement between the Bund and the federated entities mentioned
above provides the possibility for the Länder to be part of the Austrian delegation in
the EU institutional structures under the condition that the subject matters discussed
on the EU level touch upon the competences of the Länder or can be of any interest
for them. This regulation applies to the Council of Ministers as well as to the working
groups of the Council and the Commission. Federated entities can become members
of Austrian delegations only on the basis of a prior permission from the side of the
federal government. Hereby a federal permission is needed also when the Länder
desire to make a speech in EU institutions. The Länder representatives are nominated
by their governors through the Joint Office of the Länder. Thus, the Austrian system
of formalised representation creates the legal basis for two degrees of Länder
involvement in Austrian delegations on the EU level. The Länder can either
participate in federal delegations to the EU institutions or be the head of Austrian
delegations in the Council of Ministers.
218 Although, according to the Austrian constitutional law, the members of Länder governments are not ministers in the actual meaning of the term and no ministries are subordinated to them either, the Heads
247
248
To summarise, formalised mechanisms of the Austrian system of representation are
characterised by the superior position of the federal level vis-à-vis the federated
entities. With regard to their participation in Austrian delegations, federated entities
depend on the decision of the federal government, and in case such decisions
disregard their concerns, the Länder do not have the right to settle the dispute on the
legal way. No formalised inter-level co-ordination mechanisms are foreseen in this
context to sort out diverging positions. Compared to Belgian and German federated
entities, the Austrian Länder have the weakest position vis-à-vis the federal
government in the formalised system of representation.
4.2.2.3.2 Non-formalised mechanisms
As far as the political practice of Länder participation in Austrian delegations is
concerned, unlike Germany and Belgium, federated authorities on the ministerial level
have so far never been leaders of Austrian delegations in formal meetings of the
Council of Ministers. Although Austria is one of the few member states of the EU that
have constitutionally regulated the involvement of regional ministers on the Council
of Ministers’ level, these constitutional regulations have never been applied in
practice. However, the Austrian Länder have sent their representatives to the informal
meetings of the Council of Ministers and to the working groups of the Council and the
Commission.219
The reasons why the Länder never represented Austria in the formal meetings of the
Council of Ministers are twofold. First, the domestic procedures of inter-level co-
ordination and Länder participation in these procedures function well. The positions
of the Länder are normally incorporated into the Austrian standpoint regarding
European draft laws. As the federated authorities are supposed to represent these
common positions developed at the domestic level and not the own ones, they are not
particularly interested in being present at formal meetings of the Council. Second,
since the Austrian Länder avail of very limited legislative competences, these are
of Länder Governments, Landeshauptmänner, and their members are considered as representatives on the ministerial level according to Article 203 TEU (Fischer, 2000: 120; Öhlinger, 1999: 13).
248
249
seldom affected by European legal acts.220 The non-involvement of federated entities
in Austrian delegations leads to the establishment of hierarchical relationships
between the levels because the representation of Austria in the Council of Ministers
remains in the hands of the federal government.
4.2.3 Summary and conclusions
This chapter analysed the influence of the European integration on federal forms of
governance established as a consequence of European policies of federated entities. It
did so by examining formalised and non-formalised relationships between federal and
federated levels in three federal member states of the European Union, Belgium,
Germany and Austria. A special emphasis has been laid on the involvement of
federated entities in the mechanisms of inter-level co-ordination of European policies
on the domestic arena and in the systems of representation of federal states in the
European Council of Ministers. Formalised and non-formalised relationships between
federal and federated authorities in this context have been examined from the point of
view of two theoretical concepts, hierarchy and interdependence.
The comparative analysis made in this chapter allows us to make two sets of
conclusions with regard to Europeanisation of federal relationship structures. The first
set of conclusions is based on the examination of formalised and non-formalised
mechanisms of inter-level co-ordination on the domestic level. In this respect, we
have to conclude that in all federations analysed in this study, domestic co-ordination
mechanisms of European policies are based on a mixture of formalised and non-
formalised instruments. There are similarities as well as differences among Belgium,
Germany and Austria, which have to be summarised here.
What the three federal states have in common is that the actual horizontal co-
ordination in fields of federated entities’ exclusive competence is transferred from
legally foreseen mechanisms into the structure of non-formalised methods of co-
219 Interview with an Austrian Länder official, Brussels, July 2001. Interviews with Austrian federal officials, Vienna, November 2001.
249
250
ordination where decisions are made on the basis of consensus. Hereby, whereas in
Belgium non-formalised horizontal co-ordination is largely non-institutionalised and
ad hoc, in Germany and Austria the mechanisms of non-formalised co-ordination
among the Länder are highly institutionalised.
The reasons for the existence of these similarities and differences lie in the domestic
characteristics of the three federations and are not related to Europeanisation. First,
the low number of federated entities makes it possible in Belgium to co-ordinate on an
ad hoc basis. European regulations may touch upon either regional or community
prerogatives, or affect both at the same time. In case only regional or only community
prerogatives are affected, three entities have to co-ordinate positions with each other.
In case European draft laws affect regional and community competences at the same
time, horizontal co-ordination is done among five entities (as Flemish community and
regional institutions are merged). In Germany, on the contrary, horizontal co-
ordination is conducted among 16 Länder, whereas in Austria nine federated entities
have to participate in mechanisms of horizontal co-ordination. A higher number of
federated entities in Germany and Austria makes it necessary to activate institutional
set-ups on a regular basis.
Second, it seems that non-formalised institutions play a more important role in those
federations, which have a longer federal history. In Germany and Austria,
intergovernmental non-formalised institutions of horizontal co-ordination existed
independently of the European integration. Their main function in the federal process
was to co-ordinate positions among the federated entities on the basis of consensus.
The co-ordination of European policies on the domestic level was absorbed by these
institutions. They are supposed to ensure a unanimous approval by the Länder of
those European regulations that affect their competences and interests. In Germany
intergovernmental conferences act as additional legitimising mechanisms of
horizontal co-ordination besides the Bundesrat. The only intergovernmental
conference in the German context that can be regarded as an impact of Europe on
mechanisms of inter-level co-ordination is the Conference of the Länder Ministers of
EU Affairs. But this conference largely follows the pattern of other interministerial
220 Interviews with Austrian federal and Länder officials, Brussels, July 2001 and Vienna, November 2001.
250
251
conferences and thus represents a quantitative rather than a qualitative change of
horizontal co-ordination mechanisms in Germany. In Austria, there exists no such
conference, because there are no ministers of European affairs on the federated level.
The Integration Conference of the Länder created with the aim to co-ordinate
European dossiers on the horizontal level turned out to be ineffective and does not
have any relevant functions in practice.
As far as the differences among the three federal states are concerned, we have to
mention the balance between formalised and non-formalised methods of co-ordination
and their practical relevance, which vary from federal state to federal state. In
Belgium, general co-ordination of European policies is highly formalised, whereas the
degree of formalisation of sector-oriented co-ordination in fields of shared
competence varies according to policy field and is co-determined by the role of the
EU in these fields. As mentioned above, specialised co-ordination in fields of
federated entities’ exclusive competence is neither formalised nor institutionalised.
The German system of inter-level co-ordination is also characterised by a mixture of
formalised and non-formalised institutional settings whereby the latter does not
replace the former but rather supplements it in some fields of competence. Like in
Belgium, formalised and non-formalised mechanisms of co-ordination often function
parallel to each other and are not mutually exclusive. Non-formalised co-ordination in
Germany is highly institutionalised. It is performed within institutional structures that
are different from those involved in the formalised inter-level co-ordination. In
contrast to the Belgian and Austrian mechanisms of formalised inter-level co-
ordination, in Germany a prominent role is played by the upper chamber of the federal
parliament, the Bundesrat. As for the non-formalised sectoral interministerial
conferences that normally act parallel to the Bundesrat, in contrast to Belgium (and
also Spain), such conferences are responsible for co-ordination among the federated
entities and not for inter-level co-ordination between federal and federated orders.
Hereby, it has to be noted that in Germany the interministerial conferences are more
important in those fields of competence that belong to the exclusive prerogatives of
the Länder.
251
252
As far as the Austrian co-ordination system is concerned, a substantial part of it,
especially on the horizontal level, is conducted exclusively within the structure of
non-formalised conferences composed of federated entities’ representatives. These
non-formalised mechanisms have in practice replaced the legally foreseen institutions
of co-ordination. This means that in Austria non-formalised set-ups do not act parallel
to formalised mechanisms, as it is normally the case in Belgium and Germany. The
Austrian non-formalised horizontal co-ordination mechanisms are institutionalised to
a considerable degree and, in contrast to formalised mechanisms of horizontal co-
ordination, take place in the structure of institutional set-ups that existed prior to
Austria’s membership in the EU.
The second set of conclusions is based on the analysis of relationship structures
between federal and federated levels from the point of view of hierarchy and
interdependence. The Belgian system of co-ordination and representation is
characterised by a high degree of interdependence of largely equal federal and
federated entities, and by the absence of hierarchical institutional relationships.
However, in some instances, the federal level possesses a certain degree of primacy
over federated units as it carries out the monitoring role in the process of inter-level
co-ordination. In Germany we have different types of relationship structure on the
formalised and non-formalised levels. In the field of co-ordination non-formalised
mechanisms are characterised by a higher degree of interdependence than formalised
mechanisms, in particular on the horizontal level among the Länder. Bund-Länder
relationships are characterised by interdependence during the co-ordination of subject
matters that affect the exclusive competences of the Länder. The representation of
Germany in the Council of Ministers is marked by a superior position of the federal
government on the formalised as well as on the non-formalised levels whereby the
degree of institutional interdependence is low. In Austria, the formalised system of
representation is also characterised by a superior position of the federal government
vis-à-vis the federated entities. This superiority is reinforced and even strengthened on
the non-formalised level and federal relationship structures characterised by a high
degree of hierarchy are established. In the domestic system of co-ordination
interaction patterns between federal and federated authorities are characterised by
interdependence in case European draft laws affect exclusive competences of the
Länder.
252
253
To come back to our research question, what is the impact of Europe on types of
federal relationship structures and are the three federal states similar in this respect?
Based on the comparative analysis made in this chapter we can conclude that what all
the three federal states have in common is that interaction processes between federal
and federated orders become necessary when European regulations affect exclusive
competences of federated entities. This means that whereas on the domestic level the
federated entities regulate certain competences independently, they have to interact
with federal authorities in case the European regulations affect either only these
competences or the prerogatives of federal and federated entities at the same time.
Hereby the federated entities do not have any effective means to directly influence the
contents of European regulations. They have to rely on domestic methods of co-
ordination in order to co-determine the outcomes on the EU level. Such methods
become necessary in order to develop unified member state positions that have to be
represented in the EU institutions. In the domestic framework of inter-level co-
ordination, none of the levels can act independently and various degrees of
interdependence are established among them.
In Belgium, even if the European legal acts regulate only the exclusive prerogatives of
the Regions and Communities and the federated entities co-ordinate among each other
on the horizontal level, their decisions have to be rubberstamped by the P.11, the
activities of which are monitored by the federal government. In order to formalise
their position the federated entities are dependent on mechanisms of centralised co-
ordination at the Ministry of Foreign Affairs. However, Belgian positions endorsed by
the P.11 are in this case determined exclusively by the federated entities. More often
European regulations touch upon the prerogatives of both levels and make consensus-
based decisions in the structure of inter-level sector-specific institutions and later in
the P.11 necessary. This leads to a relatively high degree of institutional
interdependence between the federal and federated orders.
In Germany, in case the European regulations affect the autonomous domestic
prerogatives of the Länder, intensive interaction processes between the federal
government, the Bundesrat and the intergovernmental conferences are necessitated.
During these processes none of the levels can develop a German position alone. The
federal government is obliged to give a serious consideration to the opinion of the
253
254
federated entities and in the case of disagreements between the levels it can not ignore
the concerns of the Länder. Instead, a compromise has to be found. Consequently, a
considerable degree of interdependence is established among the federal and federated
orders.
In Austria, the federal government is bound by the position of the Länder in case the
European dossiers affect exclusive legislative competences of the latter. However,
since in practice it is the federal government who represents Austria in the Council of
Ministers, the Länder on their parts are also dependent on the adequate representation
of their concerns on the EU level by the federal government.
Thus, the common characteristic feature of the three federal states with regard to
Europeanisation of inter-level relationships in the field of federated entities’ European
policies is the increase of interdependence among the levels on the domestic arena.
The impact of Europe is the establishment of institutional interdependence among
federal and federated orders above all in those policy fields, which would otherwise
be regulated by the federated entities alone.
254
255
Part 5
Conclusions
256
This study analysed the relationship between federalism and European integration.
For this purpose it examined Europeanisation of relationships between federal and
federated levels in three constitutionally federal member states of the EU, Belgium,
Germany and Austria. A special emphasis has been dedicated to the study of
Europeanisation in the field of federated entities’ foreign and European relations. The
aim of the comparative analysis was to answer two related questions. First, what is the
impact of European integration on federal relationship structures established as a
consequence of federated entities’ foreign and European policies in the EU
framework? And second, in this respect does Europeanisation result in similar
outcomes in federal states, i.e. a certain type of common federal model?
In order to analyse the existence or absence of similar outcomes with regard to
Europeanisation of federal structures we differentiated between institutional and
structural aspects of inter-level relationships in federations. In examining
Europeanisation of relationships between the two orders in Belgium, Germany and
Austria, we explored to what extent Europe affects institutional and structural
characteristics of federal states. This means that we analysed similarity of federal
relationships first with regard to institutional models and methods of inter-level co-
ordination conditioned by the European integration. Second, we concentrated on
similarity with regard to specific types of relationships between federal and federated
levels and chose two theoretical concepts, hierarchy and interdependence, to analyse
these relationship structures. In other words, we made an attempt to examine to what
extent the involvement of federal states in multi-level polities changes these states’
structural characteristics in the sense that it leads to shifts towards either more or less
hierarchy and interdependence of inter-level relationships on the domestic level.
It should be reminded here that we defined hierarchy as a vertically organised multi-
level structure of unilateral dependence of lower levels on higher ones, which is
characterised by a highly asymmetrical distribution of resources and in which the
levels are linked with each other through control and supervision from above. Our
working definition of interdependence described it as a structure of vertical or
horizontal mutual dependence, within which the entities have to exchange
symmetrically or asymmetrically distributed resources in order to achieve final goals.
After having examined the theoretical statements on hierarchy and interdependence
256
257
made by scholars of federalism and multi-level governance the study attempted to
create a link between the theoretical literature and the political reality. It did so by
analysing relationship patterns between federal and federated levels from the point of
view of hierarchy and interdependence in those federal states, which are embedded in
broader multi-level structures. For reasons of clarity and precision each of these two
ideal types was divided in two subtypes according to their degree. The four ideal
types received as a result of this subdivision, high degree of hierarchy, high degree of
interdependence, low degree of hierarchy and low degree of interdependence, were
then applied to federal relationship structures. After having undertaken the
comparative analysis we can make several sets of conclusions, which together provide
answers to the research questions outlined above.
Let us start our conclusions with the first research question. What is the impact of
Europe on relationships between federal and federated orders in Belgium, Germany
and Austria? To begin with, it has to be emphasised that the answer to this question
depends on whether we refer to institutional or to structural characteristics of federal
relationships in the three states. Europeanisation affects institutional features and
structural characteristics of federations in different ways.
As far as institutional models and methods of federal intermediation are concerned,
the comparative analysis showed that the involvement of Belgium, Germany and
Austria in European structures did not lead to the establishment or reinforcement of
similar mechanisms of inter-level co-ordination in these federations. In spite of the
fact that the three federal states are embedded in the European multi-level framework
and confronted with comparable pressures for Europeanisation, the examination of the
institutional methods of inter-level co-ordination does not indicate the existence of a
common federal model of inter-level relationships in Belgium, Germany and Austria.
In other words, we could detect no similar institutional outcomes in this context that
are conditioned by Europeanisation. Certain institutional solutions are similar in only
two of the three federal states, but this similarity takes its source in similar or
comparable federal characteristics rather than the impact of Europe.
For example, both Belgium and Austria are characterised by the non-involvement of
their second chambers in the structure of domestic inter-level co-ordination of
257
258
European policies. This weak position of the upper chambers is a reflection of the
latter’s modest institutional position in the internal federal balance and has nothing to
do with Europeanisation. In Germany, on the contrary, the strong position of the
second chamber, the Bundesrat, in the federal balance is transferred into the field of
European co-ordination. In Austria and Germany, the actual horizontal co-ordination
of European policies in fields of federated entities’ exclusive competence is done in
the structure of non-formalised sector-oriented conferences. However, this pattern of
inter-level co-ordination existed in the two federations independently of
Europeanisation. The Belgian institutional model of European co-ordination, which
puts federal and federated authorities on an equal level, is different from the German
and Austrian domestic co-ordination mechanisms. The methods of inter-level co-
ordination in Belgium reflect in the first place the specific federal characteristics of
the Belgian state and the dynamics of its centrifugal society.
The three federal states opted for different institutional solutions of inter-level co-
ordination also in the field of cross-border and inter-regional co-operation. The
differences exist with regard to institutional mechanisms of domestic intermediation
established to deal with European programs of regional integration as well as with
regard to representation of federal states in the institutional structures on the cross-
border and inter-regional scale designed in the framework of INTERREG. These
differences are summarised in greater detail in the conclusions of chapter 4.1.
These examples show that the Belgian, German and Austrian federal models of inter-
level co-ordination established as a result of Europeanisation differ from each other
and are predominantly determined by the domestic features of the three federations.
This means that Europeanisation in federations did not result in the establishment of a
common federal institutional model of inter-level co-ordination but instead
contributed to the reinforcement of the existing institutional pattern and the style of
co-ordination.
European integration has a different impact on structural characteristics of the three
federal states. As far as Europeanisation of federal relationship structures is
concerned, we have to conclude that there does exist a similar outcome in Belgium,
Germany and Austria. It is notable that the impact of Europe on the domestic federal
258
259
balance in the field of federated entities’ foreign and European relations has been the
increase of interdependent relationships between the two levels. In this context the
European Union has played a role of an equaliser as it established or reinforced
interdependence in all three federal states. We have to make certain specifications to
this statement.
The increase of interdependence in federal relationships took place in the sense that in
Belgium, Germany and Austria federal and federated orders became mutually
dependent on each other’s resources in those domains of activity which were
originally exercised exclusively by the federated entities. This trend is equally visible
in the field of federated entities’ foreign relations as well as their European policies.
We have seen that whereas up until the end of the 1980s cross-border and inter-
regional co-operation – by definition a bottom-up type of foreign relations – was
conducted by federated entities without the involvement from the side of federal
governments, this pattern has changed since the end of the 1980s. The European
programs of cross-border and inter-regional co-operation led to the intensification and
formalisation of inter-level relationships and resulted in interdependent structures on
the domestic level between the orders. In the framework of its programs of regional
co-operation the European Commission regards the member state governments as the
main contact authorities but designs programs of regional co-operation in fields of
prerogative regulated on the domestic level by federated entities. This leads to a
situation where federal and federated orders have to engage in domestic institutional
relationships characterised by interdependence in order to manage the European
programs of regional co-operation. Thus, the impact of Europe on federal
relationships in the field of cross-border and inter-regional relations has been the
establishment of interdependent structures between the levels where previously there
existed no inter-level relationships at all.
We were able to detect a similar trend in the field of European policies of federated
entities. Exclusive prerogatives of federated units on the domestic level have been
penetrated by European regulations in the sense that the EU laws often affect either
only these prerogatives or the competences of federal and federated orders at the same
time. Because the federated entities do not have any effective institutionalised means
259
260
to directly influence the contents of European regulations, they have to rely on the
domestic methods of co-ordination in order to co-determine the outcomes at the EU
level. As the European Union regards its member states as single actors and expects
them to have unified positions with regard to European dossiers, certain mechanisms
have to be designed on the member state level in order to develop these positions.
Although concrete institutional methods of inter-level co-ordination are different in
the three federations (see above), the type of institutional relationship structure
between federal and federated orders is similar. We have seen in chapter 4.2 that in
the domestic framework of inter-level co-ordination in fields of federated entities’
exclusive competence none of the levels can act independently and various degrees of
interdependence are established between them.
Thus, based on the comparative analysis made in part four of the study we can
conclude that the impact of Europe on federal relationship structures has been the
establishment of interdependent relationships between the two levels in those areas
which were originally regulated by the federated entities alone. In other words,
Europeanisation in federal states found its expression in a growing institutional
interdependence on the domestic level.
Do these conclusions confirm our assumption made on the basis of the theoretical
analysis in chapter two? We have seen that scholars of federalism as well as students
of multi-level governance refer to both hierarchy and interdependence as features
characteristic for multi-level structures analysed by them. However, we have to
emphasise that whereas scholars of federalism either defend or deny the existence of
hierarchy and interdependence in federal structures, the picture is different when we
analyse the works of multi-level governance authors. Although some of them do
regard hierarchy as one of the modes of interaction besides interdependence, the
majority of scholars defend the idea that multi-level structures are characterised
predominantly by interdependent relationships among the levels and either by very
limited or no hierarchy. Thus, even those students of multi-level governance who
speak about hierarchical relationships among levels do not deny the existence of
interdependence in inter-level relationships. This means that generally, multi-level
governance scholars regard interdependence rather than hierarchy as the main
characteristic feature of the multi-level relationships analysed by them.
260
261
Taking these considerations as a starting point, we attempted to find out what happens
with federal relationship structures when federations are embedded in multi-level
polities such as that of the European Union. Given that, according to the theoretical
literature, multi-level structures are characterised predominantly by interdependence
whereas federal structures may be characterised by both interdependence and
hierarchy, we assumed that the federal states’ involvement in multi-level frameworks
would lead to a trend towards more interdependence in the structure of federal
relationships. The comparative analysis of the three constitutionally federal states,
Belgium, Germany and Austria, showed us that our theoretical assumptions
correspond to the political reality of federal relationships in the field of federated
entities’ foreign and European relations.
However, our conclusions to some extent contradict the statements of multi-level
governance scholars. The literature on multi-level governance is based on the idea
that multi-layered relationships among the supranational, national and regional levels
of governance result in a situation where interdependent relationships among these
levels gradually replace hierarchical inter-level structures (for example Hooghe, 1995;
Sand, 1998; Loughlin, 2000; Jessop, 2001). Our comparative analysis showed that
various statements of multi-level governance scholars that can be summarised as
‘interdependence instead of hierarchy’ do not apply to domestic relationship
structures in federal member states of the EU. We examined those member states of
the European Union, where the federated level has the strongest institutional position
on the domestic arena and a number of competences that it can exercise
independently. Throughout the analysis we have seen that as a result of
Europeanisation interdependent federal relationships have been established in those
fields of competence which were otherwise exercised independently by the federated
entities. Thus, the impact of the European multi-level governance on federal
structures has been ‘interdependence instead of independence’ rather than
‘interdependence instead of hierarchy’, as has been assumed by scholars of multi-
level governance.
In contrast to interdependence, the study of hierarchical inter-level relationships in
federal states embedded in multi-level structures showed a different outcome. In spite
of the existence of various types of hierarchical structures in the three federations, our
261
262
analysis has not revealed a common federal model of hierarchical relationships
established as a result of Europeanisation. Different degrees of hierarchy in federal
states are created or reinforced due to the domestic characteristics and dynamics of
these states rather than due to the European integration and its impact on federalism.
It has to be emphasised that hierarchical relationships are often intensified in the
structure of non-formalised federal relationships. The Belgian practice of treaty
making and the Austrian practice of representation in the European Council of
Ministers confirm this statement. Whereas interdependence is a uniting characteristic
feature of Europeanisation in all three federal states, these states are widely different
when we compare them based on hierarchical relationships among the levels on the
domestic arena. In Belgium, hierarchy among the levels in the field of federated
entities’ foreign and European relations is either completely absent or present only to
a very limited extent. In the Austrian structure, on the contrary, we were able to detect
federal relationships characterised by a considerable degree of hierarchical nesting of
the lower level in the upper one. The German federal model can be located in the
middle of the two extremes.
Let us now move on to the second research question. Do the conclusions made above
allow us to speak of a common federal model of Europeanisation in Belgium,
Germany and Austria? As outlined above, there are no institutional similarities in the
three states and thus no federal model as far as Europeanisation of institutional
solutions of inter-level co-ordination is concerned. As for Europeanisation of federal
structures, we have seen that the impact of Europe has been the equalisation of federal
relationships towards higher interdependence among the levels on the domestic arena.
Since this general trend characterises all three federal states we can speak of a federal
model in this context.
However, the existence of a federal model can only be confirmed if a comparative
analysis of federal states with other member states of the European Union shows us
that the outcome in federations with regard to domestic inter-level relationship
structures is different from the outcome in non-federal states. Since a comparative
study of federal and unitary states probably would not lead to relevant results for our
research, it is essential to compare constitutional federations such as Belgium,
Germany and Austria with federal-type member states of the EU such as Spain or the
262
263
United Kingdom. Federal and decentralised entities in these states have a comparable
position in the institutional and competence structures on the domestic level.
The case studies in such a comparative analysis including Belgium, Germany,
Austria, Spain, the UK and possibly Italy could be clustered in two different ways.
The first alternative would be to compare federations with federal-type structures.
Such a comparison would make it possible to test whether Europeanisation leads to a
higher degree of interdependence in federations compared to federal-type polities,
where, in general terms, the institutional autonomy and the degree of statehood of the
decentralised level is lower than in constitutionally federal states.
The second alternative would be to examine whether the impact of Europe with
regard to structural characteristics of inter-level relationships in political systems
based on ethnic and linguistic diversity of the respective societies is different from
Europeanisation in political systems organised along territorial principles. Such a
research design would compare Belgium, Spain and the United Kingdom with
Germany and Austria. In this context the concept of hierarchy could be reintroduced
in order to see whether Europeanisation in ethnically and linguistically diverse
societies which strive to avoid hierarchical institutional relationships among various
levels helps or hinders this process. The analysis of the Belgian federal system
showed that Europeanisation of federal relationship structures reinforced the existing
federal logic but also contributed to at least partial replacement of independence of
levels by interdependence. We have seen that in the communication structure between
Belgium and the European Union there does exist a certain degree of primacy of the
federal level vis-à-vis the federal entities but no hierarchy between the orders on the
domestic level. It would be interesting to find out whether in this respect the political
systems of Spain or the United Kingdom manage to resist the pressure from the EU,
which often regards its members states as unified actors and their governments as the
main contact authorities.
Thus, the absence or existence of a federal model with regard to Europeanisation of
inter-level relationship structures in the EU member states has to be finally confirmed
by research results obtained in the framework of a broader comparative design
including federal and non-federal states.
263
264
To summarise, the comparative analysis of the three federations embedded in the
multi-level structure of the European Union showed that European integration does
have an impact on federalism. Whereas with regard to Europeanisation of institutional
features of federal states there is no common trend in Belgium, Germany and Austria,
there does exist a federal model as far as structural characteristics of the three
federations are concerned. The impact of Europe on federal relationships resulted in a
growing institutional interdependence between federal and federated orders. In other
words, European integration conditions the intensification of two-level games on the
domestic arena and leads in this context to interdependent structures between the two
levels. Interdependence is established and reinforced above all in those fields of
activity which were originally exercised independently by federated entities and were
not accompanied by domestic processes of inter-level mediation. Thus, the impact of
the multi-level European framework on federalism can be described as
‘interdependence instead of independence’ rather than ‘interdependence instead of
hierarchy’ as often assumed by scholars of multi-level governance. This growing
institutional interdependence is the main characteristic feature of an emerging federal
model.
264
265
Bibliography
266
a) Secondary literature Abromeit, H. (1992), Der verkappte Einheitsstaat. Opladen: Leske & Budrich. Adshead, M. (2002), ‘Europeanization, Changing Patterns of Governance and the Welfare State in Ireland’. Paper presented at ECPR Joint Sessions of Workshops in March 2002 in Turin, Italy. Agranoff, R. (ed.) (1999a), Accommodating Diversity: Asymmetry in Federal States. Baden-Baden: Nomos. Agranoff, R. (1999b), ‘Intergovernmental Relations and the Management of Asymmetry in Federal Spain’, in R. Agranoff (ed.), Accommodating Diversity: Asymmetry in Federal States. Baden-Baden: Nomos, 94-118. Aldecoa, F. and M. Keating (eds) (1999), Paradiplomacy in Action. The Foreign Relations of Subnational Governments. Special Issue of Regional and Federal Studies, Vol. 9, No. 1.
Alen, A. (1992), Treatise on Belgian Constitutional Law. Deventer, Boston: Kluwer Law and Taxation Publishers. Alen, A. and P. Peeters (1998), ‘Federal Belgium within the International Legal Order: Theory and Practice’, in K. Wellens (ed.), International Law: Theory and Practice. The Netherlands: Kluwer Law International, 123-143. Alomar, S. B. (1995), ‘Interregional Co-operation in Europe during the Eighties and Early Nineties’, in N. A. Sørensen (ed.), European Identities. Cultural Diversity and Integration in Europe since 1700. Odense: Odense University Press, 127-147. Amin, A. and J. Hausner (1997), Beyond Market and Hierarchy. Interactive Governance and Social Complexity. Cheltenham, UK and Lyme, US: Edward Elgar. Ansell, Ch. (2000), ‘The Networked Polity: Regional Development in Western Europe’, Governance: An International Journal of Policy and Administration, Vol. 13, No. 3, 303-333. Arnold, R. (1998), ‘Die Beteiligung der Bundesländer an der Europäischen Union’, in U. Männle (ed.), Föderalismus zwischen Konsens und Konkurrenz. Tagungs- und Materialienband zur Fortentwicklung des deutschen Föderalismus. Baden-Baden: Nomos, 131-141. Benz, A. (1998), ‘German Regions in the European Union: from Joint Policy-Making to Multi-Level Governance’, in P. Le Galès and Ch. Lequesne (eds), Regions in Europe. London and New York: Routledge, 111-130. Benz, A. and B. Eberlein (1999), ‘The Europeanization of regional policies: patterns of multi-level governance’, Journal of European Public Policy, Vol. 6, No. 2, 329-349.
266
267
Berchtold, K. (1989), ‘Zur völkerrechtlichen Vertragsabschlußkompetenz der Länder’, Österreichische Zeitschrift für öffentliches Recht und Völkerrecht Vol. 40, 217-224. Bergsmann, S. (1998), ‘Die österreichischen Bundesländer und ihre auswärtigen Beziehungen, speziell in der Europäischen Union’, in R. Krämer (ed.), Regionen in der Europäischen Union. Beiträge zur Debatte. Berlin: Berliner Debatte, Wiss.-Verl., 180-203. Bernier, I. (1973), International Legal Aspects of Federalism. London: Longman. Beyerlin, U. (1998), ‘Neue rechtliche Entwicklungen der regionalen und grenzüberschreitenden lokalen Zusammenarbeit’, in G. Brunn and P. Schmitt-Egner (eds), Grenzüberschreitende Zusammenarbeit von Regionen. Theorie, Empirie, Praxis. Baden-Baden: Nomos, 118-134. Beyerlin, U. and Y. Lejeune (1994), Sammlung der internationalen Vereinbarungen der Länder der Bundesrepublik Deutschland. Berlin, Heidelberg: Springer Verlag. von Beyme, K. (1996), Das politische System der Bundesrepublik Deutschland. München: Piper Verlag. Blatter, J. (2001a), ‘Debordering the World of States: Towards a Multi-Level System in Europe and a Multi-Polity System in North America? Insights from Border Regions’, European Journal of International Relations, Vol. 7, No. 2, 175-209. Blatter, J. (2001b), ‘Nationale Souveränität als nationalstaatliche Monopolisierung der Außenpolitik. Historische Entwicklung und Unterschiede in Deutschland, Österreich und der Schweiz’. Paper presented at the conference on ‘Wandlung föderativer Strukturen’ organised on 8-9 June 2001 by Die Deutsche Vereinigung für Politikwissenschaft, Die Österreichische Gesellschaft für Politikwissenschaft und Die Schweizerische Vereinigung für Politische Wissenschaft at the Humboldt-Universität zu Berlin, in Berlin, Germany. Böckenförde, E.-W. (1980), ‘Sozialer Bundesstaat und parlamentarische Demokratie. Zum Verhältnis von Parlamentarismus und Föderalismus unter den Bedingungen des Sozialstaates’, in J. Jekewitz (ed.), Politik als gelebte Verfassung. Festschrift für Friedrich Schäffer. Opladen: Westdeutscher Verlag. Börzel, T. A. (1997), ‘Does European Integration Really Strengthen the State? The Case of the Federal Republic of Germany’, Regional and Federal Studies, Vol. 7, No. 3, 87-113. Börzel, T. A. (1999), ‘Towards Convergence in Europe? Institutional Adaptation to Europeanisation in Germany and Spain’, Journal of Common Market Studies, Vol. 34, No. 4, 573-596. Börzel, T. A. (2000), ‘From Competitive Regionalism to Cooperative Federalism. The Europeanization of the Spanish State of the Autonomies’, Publius. The Journal of Federalism, Vol. 30, No. 2, 17-42.
267
268
Börzel, T. A. (2002), States and Regions in the European Union: Institutional Adaptation in Germany and Spain. Cambridge, New York: Cambridge University Press. Boogman, J. C. and G. N. van der Plaat (eds) (1980), Federalism. History and Significance of a Form of Government. The Hague: Martinus Nijhoff. Borkenhagen, F. H. U. (ed.) (1998), Europapolitik der deutschen Länder. Bilanz und Perspektiven nach dem Gipfel von Amsterdam. Opladen: Leske + Budrich. Brassine, J. (1994), La Belgique fédéral. Bruxelles: Centre de recherche et d’information socio-politiques (CRISP). Brassine, J. (2001), ‘Le niveau de pouvoir fédéral’, in A. Leton (ed.), La Belgique: un état fédéral en évolution. Bruxelles: Bruylant, 69-103. Braun, D. (1996), ‘Der bundesdeutsche Föderalismus an der Wegscheide. Interessenkonstellationen, Akteurskonflikte und institutionelle Lösungen’, Staatswissenschaften und Staatspraxis, Vol. 7, 101-135. Brockhaus Enzyklopädie, Vol. 10 (1989), Mannheim: F. A. Brockhaus. Brown, D. E. (1988), Hierarchy, History, and Human Nature. The Social Origins of Historical Consciousness. Tucson: The University of Arizona Press. Brown, D. M. and E. H. Fry (eds) (1993), States and Provinces in the International Economy. Berkeley: University of California Press. Brunn, G. and P. Schmitt-Egner (1998), ‘Die grenzüberschreitende Zusammenarbeit von Regionen in Europa als Feld der Integrationspolitik und Gegenstand der Forschung’, in G. Brunn and P. Schmitt-Egner (eds), Grenzüberschreitende Zusammenarbeit von Regionen. Theorie, Empirie, Praxis. Baden-Baden: Nomos, 7-25. Bullman, U. (1996), ‘The Politics of the Third Level’, Regional and Federal Studies, Vol. 6, No. 2, 3-20. Bundeszentrale für politische Bildung (2002), Föderalismus in Deutschland. Informationen zur politischen Bildung, Nr. 275. München: Franzis’ print & media. Burgess, M. and F. Gress (1999), ‘Symmetry and Asymmetry Revisited’, in R. Agranoff (ed.), Accommodating Diversity: Asymmetry in Federal States. Baden-Baden: Nomos, 43-57. Burns, T. and G. M. Stalker (1961), The Management of Innovation. London: Tavistock Publications. Bursens, P. (2002), ‘Belgium’s Adaptation to the EU. Does Federalism Constrain Europeanisation?’. Paper presented at ECPR Joint Sessions of Workshops in March 2002 in Turin, Italy.
268
269
Bursens, P. (2002), ‘How Multi-level are IGCs? The Belgian Federation and the 2000 Conference, Regional and Federal Studies, Vol. 12, No. 3., 181-205. Bußjäger, P. (2001), Die Zustimmungsrechte des Bundesrates. Wien: Braumüller. Cannon, M. (2001), ‘The Emergence of the Transmanche Euroregion Policy Networks and Meso-level Development’. Paper presented at the conference on ‘Regionalism in the European Union’ organised in April 2001 at the Georgia State University, Atlanta, Georgia, USA. Caporaso, J. A. (1996), ‘The European Union and Forms of State: Westphalian, Regulatory or Post-Modern?’, Journal of Common Market Studies, Vol. 34, No. 1, 29-51. Cappellin, R. and P.W.J. Batey (1993), Regional Networks, Border Regions and European Integration. London: Pion. Child, J. (1993), ‘Society and Enterprise Between Hierarchy and Market’, in J. Child, M. Crozier and R. Mayntz (eds), Societal Change Between Market and Organization. Aldershot: Avebury, 203-227. Chrisholm, D. (1989), Coordination without Hierarchy. Informal Structures in Multiorganizational Systems. Berkeley: University of California Press. Clostermeyer, C.-P. and S. Lehr (1998), ‘Ländermitwirkung bei völkervertraglichem Handeln auf EU-Ebene. Brauchen wir ein “Lindau II”?’, Die Öffentliche Verwaltung, Vol. 51, No. 4, 148-154. Council of Europe and British Institute of International and Comparative Law (eds) (2001), Treaty Making – Expression of Consent by States to be Bound by a Treaty. The Hague: Kluwer Law International. Cowles, M. G., J. Caporaso and Th. Risse (eds), Transforming Europe. Europeanisation and Domestic Change. Ithaca and London: Cornell University Press. Craenen, G. (ed.), The Institutions of Federal Belgium. An Introduction to Belgian Public Law. Leuven: Acco. Criekemans, D. and T. B. Salomonson (2000), ‘Presentatie en buitenlands beleid op Belgisch (federaal) en Vlaams (regionaal) beleidsniveau’, Internationale Spectator, Vol. 54, No. 10, 504-507. Dachs, H., P. Gerlich, H. Gottweis, F. Horner, H. Kramer, V. Lauber, W. C. Müller and E. Tálos (eds) (1991), Handbuch des politischen Systems Österreichs. Wien: Manzsche Verlags- und Universitätsbuchhandlung. Danson, M., H. Halkier and G. Cameron (eds) (2000), Governance, Institutional Change and Regional Development. Aldershot: Ashgate. Dardanelli, P. (2002), ‘Europeanisation and Devolution of Power. Evidence from a Comparative Analysis of Scotland over Time’. Paper presented at ECPR Joint Sessions of Workshops in March 2002 in Turin, Italy.
269
270
Davis, R. S. (1978), The Federal Principle. A Journey through Time in Quest of a Meaning. Berkeley, Los Angeles, London: University of California Press. Decaux, E. (1984), ‘La convention-cadre européenne sur la coopération transfrontalière des collectivités ou des autorités locales‘, Revue Générale de Droit International Public, Vol. 88, 577-620. Degen, M. (2001), ‘Die Mitwirkungsmöglichkeiten von Ländern und Regionen in der Praxis’. Paper presented at the seminar on ‘Der Politische Entscheidungsprozess in der EU und seine Bedeutung für die Bundesländer’ organised by the European Institute of Public Administration (EIPA) in February 2001, in Maastricht, Holland, Delpérée, F. (ed.) (2002), Les lois spéciales et ordinaire du 13 juillet 2001. La réforme de la Saint-Polycarpe. Bruxelles: Bruylant. Delwit, P., J.-M. De Waele and P. Magnette (eds) (1999), Gouverner la Belgique. Clivages et compromis dans une société complexe. Paris: Presse Universitaire de France. Derlien, H.-U. (2000), ‘Germany’, in H. Kassim, G. B. Peters and V. Wright (eds) (2000), The National Co-ordination of EU Policy. The Domestic Level. Oxford: Oxford University Press, 54-78. Deschouwer, K. (2000), ‘Belgien – Ein Föderalstaat auf der Suche nach Stabilität’, in Europäisches Zentrum für Föderalismus-Forschung in Tübingen (ed.), Jahrbuch des Föderalismus 2000. Föderalismus, Subsidiarität und Regionen in Europa. Baden-Baden: Nomos, 97-120. Deschouwer, K. (2002), ‘Getrennt zusammenleben in Belgien und Brüssel’, in Europäisches Zentrum für Föderalismus-Forschung in Tübingen (ed.), Jahrbuch des Föderalismus 2002. Föderalismus, Subsidiarität und Regionen in Europa. Baden-Baden: Nomos, 275-288. Deschouwer, K. and Th. M. Jans (2001), ‘L’avenir des institutions, vu de Flandre’, in A. Leton (ed.), La Belgique: un état fédéral en évolution. Bruxelles: Bruylant, 209-227. Dette-Koch, E. (1997), ‘Die Rolle des “Länderbeobachters” im Rahmen der Mitwirkung der Länder an der europäischen Integration’, Thüringer Verwaltungsblätter, 3. August 1997, No. 8, 169-173. De Villiers, B. (1995), Foreign relations and the Provinces. An International Perspective. Pretoria: HSRC Publishers. De Villiers, B. (1999), National-Provincial Cooperation – the Potential Role of Provincial Interest Offices: the German Experience. Occasional Papers, January 1999, Johannesburg: Konrad-Adenauer-Stiftung. Di Marzo, L. (1980), Component Units of Federal States and International Agreements. Alphen aan den Rijn: Sijthoff & Noordhoff.
270
271
Duchacek, I. D. (1987), Comparative Federalism. The Territorial Dimension of Politics. Lanham and London: University Press of America. Duchacek, I. D. (1990), ‘Perforated Sovereignties: Towards a Typology of New Actors in International Relations’, in H. J. Michelmann and P. Soldatos (eds), Federalism and International Relations. The Role of Subnational Units. Oxford: Clarendon Press, 1-34. Eißel, D., A. Grasse, B. Paeschke and R. Sänger (1999), Interregionale Zusammenarbeit in der EU. Analysen zur Partnerschaft zwischen Hessen, der Emilia-Romagna und der Aquitaine. Opladen: Leske + Budrich. Elazar, D. J. (1987), Exploring Federalism. Tuscaloosa, Alabama: The University of Alabama Press. Elazar, D. J. (1997), ‘Contrasting Unitary and Federal Systems’, International Political Science Review, Vol. 18, No. 3, 237-251. Engel, C. (2001), ‘“Kooperativer Mehrebenen-Föderalismus” in Europa? Eine kritische Würdigung der Verfahren regionaler Mitwirkung in EU-Angelegenheiten’, in Europäisches Zentrum für Föderalismus-Forschung in Tübingen (ed.), Jahrbuch des Föderalismus 2001. Föderalismus, Subsidiarität und Regionen in Europa. Baden-Baden: Nomos, 497-519. Engel, C. (2002), ‘Die “Europäisierung” der Verwaltungen: Ein Blick auf die regionale Ebene’, in Europäisches Zentrum für Föderalismus-Forschung in Tübingen (ed.), Jahrbuch des Föderalismus 2002. Föderalismus, Subsidiarität und Regionen in Europa. Baden-Baden: Nomos, 54-68. Ermacora, F. (1970), Allgemeine Staatslehre. Vom Nationalstaat zum Weltstaat. Berlin: Duncker und Humblot. Europäisches Zentrum für Föderalismus-Forschung in Tübingen (ed.) (2000), Jahrbuch des Föderalismus 2000. Föderalismus, Subsidiarität und Regionen in Europa. Baden-Baden: Nomos. Europäisches Zentrum für Föderalismus-Forschung in Tübingen (ed.) (2001), Jahrbuch des Föderalismus 2001. Föderalismus, Subsidiarität und Regionen in Europa. Baden-Baden: Nomos. Europäisches Zentrum für Föderalismus-Forschung in Tübingen (ed.) (2002), Jahrbuch des Föderalismus 2002. Föderalismus, Subsidiarität und Regionen in Europa. Baden-Baden: Nomos. Falkner, G. and W. C. Müller (eds) (1998), Österreich im europäischen Mehrebenensystem. Konsequenzen der EU-Mitgliedschaft für Politiknetzwerke und Entscheidungssysteme. Wien: Signum. Falkner, G. (2001), ‘The Europeanisation of Austria: Misfit, Adaptation and Controversies’, European Integration online Papers, Vol. 5, No. 13, at http://eiop.or.at/eiop/texte/2001-013a.htm
271
272
Farrell, H. and A. Héritier (2001), ‘Formal and Informal Institutions under Codecision: Continuous Constitution Building in Europe’, European Integration online Papers, Vol. 6, No. 3, at http://eiop.or.at/eiop/texte/2002-003a.htm Fischer, H. (ed.) (1974), Das politische System Österreichs. Wien: Europaverlag. Fischer, K. H. (2000), ‘Die Positionierung der österreichischen Bundesländer im institutionellen Gefüge der Europäischen Union’, in R. Hrbek (ed.), Europapolitik und Bundesstaatsprinzip. Baden-Baden: Nomos, 117-141. Fischer, Th. (2001), ‘Die Europapolitik der deutschen Länder’, in Th. Fischer and S. Frech (eds), Baden-Württemberg und seine Partnerregionen. Stuttgart: Landeszentrale für politische Bildung Baden-Württemberg, 16-35. Fischer, Th. and S. Frech (2001), ‘”Vier Motoren für Europa” – Baden-Württembergs Partnerregionen’, in Th. Fischer and S. Frech (eds), Baden-Württemberg und seine Partnerregionen. Stuttgart: Landeszentrale für politische Bildung Baden-Württemberg, 9-15. Fischer, W. and C. D. Koggel (2000), ‘Die Europakammer des Bundesrates. Erfahrungen und Probleme anläßlich der Beratung der Plan-UVP-Richtlinie’, Deutsches Verwaltungsblatt, 1. December 2000, 1742-1751. Frenkel, M. (1986), Federal Theory. Canberra: Anutech. Frenz, W. (1999), ‘Die Verdrängung des Lindauer Abkommens durch Art. 23 GG. Mitwirkungsrechte der Länder bei gemischten Abkommen, die ausschließliche Länderkompetenzen erfassen’, Deutsches Verwaltungsblatt, Vol. 114, No. 14, 945-953. Friedrich, K. J. (1964), ‘International Federalism in Theory and Practice’, in E. Plischke (ed.), Systems of Integrating the International Community. Princeton: Van Nostrand, 117-155. Götz, K. H. (2002), ‘Four Worlds of Europeanisation’. Paper presented at ECPR Joint Sessions of Workshops in March 2002 in Turin, Italy. Goudappel, F. A. N. J. (1997), Powers and Control Mechanisms in European Federal Systems. A Comparative Approach to the Form of Government of the European Community. Gouda Quint: Sanders Instituut. Graziano, P. (2002), ‘Europeanisation, National Institutions and Regional Representation: The Case of Cohesion Policy in Italy’. Paper presented at ECPR Joint Sessions of Workshops in March 2002 in Turin, Italy. Grodzins, M. (1970), ‘Centralization and Decentralization in the American Federal System’, in R. A. Goldwin (ed.), A Nation of States. Essays on the American Federal System. Chicago: Rand McNally & Company, 1-24. Häberle, P. (1993), ‘Die Entwicklung des Föderalismus in Deutschland – insbesondere in der Phase der Vereiningung’, in J. Kramer (ed.), Föderalismus
272
273
zwischen Integration und Sezession. Chancen und Risiken bundesstaatlicher Ordnung. Baden-Baden: Nomos, 201-243. Hammer, S. (1992), Länderstaatsverträge. Zugleich ein Beitrag zur Selbständigkeit der Länder im Bundesstaat. Wien: Braumüller. Hammer, S. (1999), ‘Artikel 16’, in K. Korinek and M. Holoubek (eds), Österreichisches Bundesverfassungsrecht. Textsammlung und Kommentar. Band II. Wien: Springer, 1-43. Hanf, D. (1999), Bundesstaat ohne Bundesrat? Die Mitwirkung der Glieder und die Rolle zweiter Kammern in evolutiven und devolutiven Bundesstaaten. Eine rechtsvergleichende Untersuchung. Baden-Baden: Nomos. Hanf, K. and F. W. Scharpf (1977), Interorganizational Policy Making. Limits to Coordination and Central Control. London: Beverly Hills. Hartung, B. (1984), Die Praxis des Lindauer Abkommens. Köln: Carl Heymanns Verlag. Herbst, Ph. G. (1976), Alternatives to Hierarchies. Leiden: Martinus Nijhoff. Héritier, A. (ed.) (1993a), Policy-Analyse. Kritik und Neuorientierung. Politische Vierteljahresschrift Sonderheft 24. Opladen: Westdeutscher Verlag. Héritier, A. (1993b), ‘Policy-Netzwerkanalyse als Untersuchungsinstrument im europäischen Kontext: Folgerungen aus einer empirischen Studie regulativer Politik’, in A. Héritier (ed.), Policy-Analyse. Kritik und Neuorientierung. Politische Vierteljahresschrift Sonderheft 24. Opladen: Westdeutscher Verlag, 432-447. Hesse, J. J. (ed.), (1995/96), Regionen in Europa. Die Institutionalisierung des Regionalausschusses. Baden-Baden: Nomos. Hesse, K. (1962), Der unitarische Bundesstaat. Karlsruhe: C. F. Müller Verlag. Hocking, B. (ed.) (1993), Foreign Relations and Federal States. London and New York: Leicester University Press. Hocking, B. (1999), ‘Patrolling the “Frontier”: Globalization, Localization and the “Actorness” of Non-Central Governments’, in F. Aldecoa and M. Keating (eds), Paradiplomacy in Action. The Foreign relations of Subnational Governments. Special Issue of Regional and Federal Studies, Vol. 9, No. 1, 17-39. Hoell, O., J. Pollak and S. Puntscher Riekmann (2001), Austria: Structural Domestic Change through European Integration. Unpublished manuscript. Hooghe, L. (1995), ‘Sub-national Mobilization in the European Union’, West European Politics, Vol. 18, No. 3, 175-198.
273
274
Hooghe, L. (ed.) (1996), Cohesion Policy and European Integration. Building Multi-Level Governance. Oxford: Clarendon Press. Hooghe, L. and G. Marks (2001a), Multi-Level Governance and European Integration. Oxford: Rowman & Littlefield. Hooghe, L. and G. Marks (2001b), ‘Types of Multi-Level Governance’, European Integration online Papers, Vol. 5, No. 11, at http://eiop.or.at/eiop/texte/2001-011a.htm Hrbek, R. (1998), ‘Die Auswirkungen der EU-Integration auf den Föderalismus in Deutschland’, in R. Krämer (ed.), Regionen in der Europäischen Union. Beiträge zur Debatte. Berlin: Berliner Debatte, Wiss.-Verl., 224-241. Hrbek, R. (1999), ‘The Effects of EU Integration on German Federalism‘, in Ch. Jeffery (ed.), Recasting German Federalism. The Legacies of Unification. London and New York: Pinter, 217-234. Hrbek, R. (ed.) (2000), Europapolitik und Bundesstaatsprinzip. Die “Europafähigkeit” Deutschlands und seiner Länder im Vergleich mit anderen Föderalstaaten. Baden-Baden: Nomos. Huhn, J. and P.-Ch. Witt (eds), Föderalismus in Deutschland. Traditionen und gegenwärtige Probleme. Baden-Baden: Nomos. Institut für Föderalismusforschung in Innsbruck (1996), 20. Bericht über die Lage des Föderalismus in Österreich 1995.Wien: Braumüller. Institut für Föderalismusforschung in Innsbruck (1997), 21. Bericht über die Lage des Föderalismus in Österreich 1996.Wien: Braumüller. Institut für Föderalismusforschung in Innsbruck (1998), 22. Bericht über die Lage des Föderalismus in Österreich 1997.Wien: Braumüller. Institut für Föderalismusforschung in Innsbruck (1999), 23. Bericht über die Lage des Föderalismus in Österreich 1998. Wien: Braumüller. Jabloner, C. (1989), ‘Gliedstaatsverträge in der österreichischen Rechtsordnung’, Österreichische Zeitschrift für öffentliches Recht und Völkerrecht Vol. 40, 225-255. Jans, Th. M. and H. Tombeur (2000), ‘Living apart Together. The Belgian Intergovernmental Co-operation in the Domains of Environment and Economy’, in D. Braun (ed.), Public Policy and Federalism. Aldershot: Ashgate, 142-176. Jansen, D. and K. Schubert (1995), ‘Netzwerkanalyse, Netzwerkforschung und Politikproduktion: Ansätze zur “cross-fertilization”’, in D. Jansen and K. Schubert (eds), Netzwerke und Politikproduktion. Konzepte, Methoden, Perspektiven. Marburg: Schüren, 9-24.
274
275
Jeffery, Ch. (1996a), ‘Farewell the Third Level? The German Länder and the European Policy Process’, Regional and Federal Studies, Vol. 6, No. 2, 56-76. Jeffery, Ch. (1996b), ‘Conclusions: Sub-National Authorities and “European Domestic Policy”’, Regional and Federal Studies, Vol. 6, No. 2, 204-219. Jeffery, Ch. (ed.) (1999a), Recasting German Federalism. The Legacies of Unification. London and New York: Pinter. Jeffery, Ch. (1999b), ‘From Cooperative Federalism to a “Sinatra Doctrine” of the Länder?’, in Ch. Jeffery (ed.), Recasting German Federalism. The Legacies of Unification. London and New York: Pinter, 329-343. Jelavich, B. (1988), Modern Austria. Empire and Republic, 1815-1986. Cambridge: Cambridge University Press. Jessop, B. (2001), ‘Multi-Level Governance and Multi-Level Meta-Governance’. Paper presented at the conference on ‘Multi-Level Governance: Interdisciplinary Perspectives’ organised in June 2001 by the Political Economy Research Centre of the University of Sheffield in Sheffield, UK. Johnson, N. (1999), ‘Territory and Power: Some Historical Determinants of the Constitutional Structure of the Federal Republic of Germany’, in Ch. Jeffery (ed.), Recasting German Federalism. The Legacies of Unification. London and New York: Pinter, 23-40. Kaiser, R. (2002), ‘Subnational Governments in International Arenas – Paradiplomacy and Multi-level Governance in Europe and North America’. Paper presented at the Fifth Symposium of the International Political Science Association (IPSA) on ‘Globalization, Nations and Multi-level Governance: Strategies and Challenges’ organised in October 2002 in Montréal, Québec, Canada. Kassim, H., G. B. Peters and V. Wright (eds) (2000), The National Co-ordination of EU Policy. The Domestic Level. Oxford: Oxford University Press. Keating, M. (1998), ‘Is there a Regional Level of Government in Europe?, in P. Le Galès and Ch. Lequesne (eds), Regions in Europe. London and New York: Routledge, 11-30. Keating, M. (1999a), ‘Asymmetrical Government: Multinational States in an Integrating Europe’, Publius. The Journal of Federalism, Vol. 29, No. 1, 71-86. Keating, M. (1999b), ‘Regions and International Affairs: Motives, Opportunities and Strategies’, in F. Aldecoa and M. Keating (eds), Paradiplomacy in Action. The Foreign Relations of Subnational Governments. Special Issue of Regional and Federal Studies, Vol. 9, No. 1, 1-17. Keating, M. (2002), ‘Paradiplomatie und regionale Netzwerke’, in Europäisches Zentrum für Föderalismus-Forschung in Tübingen (ed.), Jahrbuch des Föderalismus 2002. Föderalismus, Subsidiarität und Regionen in Europa. Baden-Baden: Nomos, 43-53.
275
276
Kenis, P. and V. Schneider (1991), ‘Policy Networks and Policy Analysis: Scrutinizing a New Analytical Toolbox’, in B. Marin and R. Mayntz (eds), Policy Networks. Empirical Evidence and Theoretical Considerations. Frankfurt am Main: Campus. Boulder, Colorado: Westview Press, 25-62. Keohane, R. O. and J. S. Nye (1989), Power and Interdependence. Glenview: Scott Foresman. Kerremans, B. and J. Beyers (1996), ‘The Belgian Sub-National Entities in the European Union: Second or Third Level Players?, Regional and Federal Studies, Vol. 6, No. 2, 41-56. Kerremans, B. (2000a), ‘Determining a European Policy in a Multi-Level Setting: The Case of Specialised Co-ordination in Belgium’, Regional and Federal Studies, Vol. 10, No. 1, 36-61. Kerremans, B. (2000b), ‘Regieren im Mehrebenensystem und Bundesstaatlichkeit: Zur Mitwirkung der subnationalen Ebene im Rat der EU und an der Regierungskonferenz 1996/97’, in Europäisches Zentrum für Föderalismus-Forschung in Tübingen (ed.) (2000), Jahrbuch des Föderalismus 2000. Föderalismus, Subsidiarität und Regionen in Europa. Baden-Baden: Nomos, 479-509. Khubua, G. (2000), Federalism as a Normative Principle and a Political Order. Tbilisi: American Bar Association and Association of Young Lawyers of Georgia (in Georgian). (khubua, g. (2002), federalizmi rogorc normatiuli principi da politikuri tsesrigi. tbilisi: amerikis iuristta asociacia da saqartvelos akhalgazrda iuristta asociacia). Kicker, R. (1988), ‘Föderalismus in der österreichischen Außenpolitik. Initiativen der Bundesländer’, Österreichische Zeitschrift für Politikwissenschaft, No. 2, 133-144. King, P. (1982), Federalism and Federation. London & Canberra: Croom Helm. Klatt, H. (1999), ‘Die innerstaatliche Beteiligung der Bundesländer an der deutschen Europapolitik’, in P. Nitschke (ed.), Die Europäische Union der Regionen. Subpolity und Politiken der dritten Ebene. Opladen: Leske + Budrich, 133-166. Knight, J. (1992), Institutions and Social Conflict. Cambridge: Cambridge University Press. Knill, C. and D. Lehmkuhl (1999), ‘How Europe Matters. Different Mechanisms of Europeanisation‘, European Integration online Papers, Vol. 3, No. 7 at http://eiop.or.at/eiop/texte/1999-007a.htm Knipping, F. (ed.) (1994), Federal Conceptions in EU Member States: Traditions and Perspectives. Baden-Baden: Nomos. Knop, K., S. Ostry, R. Simeon and K. Swinton (eds) (1995), Rethinking Federalism: Citizens, Markets, and Governments in a Changing World. Vancouver: University of British Columbia Press.
276
277
Kohler-Koch, B. (ed.) (1998), Interaktive Politik in Europa. Regionen im Netzwerk der Integration. Opladen: Leske+Budrich. Kohler-Koch, B. and M. Jachtenfuchs (1996), ‘Regieren in der Europäischen Union – Fragestellungen für eine interdisziplinäre Europaforschung’, Politische Vierteljahresschrift, Vol. 37, No. 3, 537-556. Koja, F. (1990), ‘Zur Auslegung des Art. 16 Abs. 1 B-VG’, Österreichische Zeitschrift für öffentliches Recht und Völkerrecht, Vol. 41, 1-7. König, Th. (1999), ‘Regieren im deutschen Föderalismus’, Aus Politik und Zeitgeschichte, B 13/99, 26 March 1999, 24-36. Kontopoulos, K. M. (1993), The Logics of Social Structure. Cambridge: Cambridge University Press. Korkelia, K. (1998), International Treaty in International and National Law. Tbilisi: Tbilisi University Press (in Georgian). (korkelia, k. (1998), saertashoriso khelshekruleba saertashoriso da shidasakhelmtsipoebriv samartalshi. tbilisi: tbilisis universitetis gamomcemloba). Kourvetaris, G. A. and A. Moschonas (eds) (1996), The Impact of European Integration. Political, Sociological, and Economic Changes. Westport, Connecticut, London: Pralger. Kovziridze, T. (2001), ‘Federalisme, multi-level governance en twee types van hïerarchie’, Res Publica, Vol. 43, No. 1, 15-36. Kovziridze, T. (2002), ‘Europeanization of Federal Institutional Relationships: Hierarchical and Interdependent Relationship Structures in Belgium, Germany and Austria’, Regional and Federal Studies, Vol. 12, No. 3, 128-155. Kramer, J. (ed.) (1993), Föderalismus zwischen Integration und Sezession. Chancen und Risiken bundesstaatlicher Ordnung. Baden-Baden: Nomos. Krämer, R. (ed.) (1998), Regionen in der Europäischen Union. Beiträge zur Debatte. Berlin: Berliner Debatte, Wiss.-Verl. Ladrech, R. (1994), ‘Europeanization of Democratic Politics and Institutions: The Case of France’, Journal of Common Market Studies, Vol. 32, No. 1, 69-88. Laffan, B and D. Payne (2001), Creating Living Institutions. EU Cross-Border Co-operation after the Good Friday Agreement. Institute for British-Irish Studies, UCD. A Report for the Centre for Cross Border Studies, at http://www.qub.ac.uk/ccbc/PRcreatingliving.htm Lagasse, Ch.-E. (1997), Le système des relations internationales dans la Belgique fédéral. Bruxelles: Centre de recherche et d’information socio-politiques (CRISP).
277
278
Larsson, T., K. Nomden and F. Petiteville (eds) (1999), The Intermediate Level of Government in European States. Complexity versus Democracy?. Maastricht: European Institute of Public Administration. Laufer, H. and U. Münch (1997), Das föderative System der Bundesrepublik Deutschland. Bonn: Bundeszentrale für politische Bildung. Laumann, E., P. Siegel and R. Hodge (eds) (1970), The Logic of Social Hierarchies. Chicago: Markham. Le Galès, P. and Ch. Lequesne (eds) (1998), Regions in Europe. London and New York: Routledge. Leitner, Ch. and Ch. Neuhold (1999), ‘The Intermediate Level of Government and Administration in Austria’, in T. Larsson, K. Nomden and F. Petiteville (eds), The Intermediate Level of Government in European States. Complexity versus Democracy? Maastricht: European Institute of Public Administration, 291-315. Lejeune, Y. (1994), ‘Le principe de la loyauté fédéral: une règle de comportement au contenu mal defini’, Revue du droit public et des sciences administratives, No. 2-3, 233-238. Leonardy, U. (1993), ‘Federation and Länder in German foreign relations: power-sharing in treaty-making and European affairs’, in B. Hocking (ed.), Foreign Relations and Federal States. London: Leicester University Press, 236-251. Leonardy, U. (1999), ‘The Institutional Structures of German Federalism’, in Ch. Jeffery (ed.), Recasting German Federalism. The Legacies of Unification. London and New York: Pinter, 3-23. Leton, A. (ed.) (2001a), La Belgique: un état fédéral en évolution. Bruxelles: Bruylant. Leton, A. (2001b), ‘Les Régions et les Communautés’, in A. Leton (ed.), La Belgique: un état fédéral en évolution. Bruxelles: Bruylant, 103-127. Lindblom, Ch. E. (1965), The Intelligence of Democracy. Decision Making through Mutual Adjustment. New York: The Free Press. London: Collier-Macmillan Limited. Livingston, W. S. (1952), ‘A Note on the Nature of Federalism’, Political Science Quarterly, Vol. 67, No. 1, 81-95. Loughlin, J. (2000), ‘Regional Autonomy and State Paradigm Shifts in Western Europe’, Regional and Federal Studies, Vol. 10, No. 2, 10-34. Luther, K. R. (1991), ‘Bund-Länder Beziehungen: Formal- und Realverfassung’, in H. Dachs, P. Gerlich, H. Gottweis, F. Horner, H. Kramer, V. Lauber, W. C. Müller and E. Tálos (eds), Handbuch des politischen Systems Österreichs. Wien: Manzsche Verlags- und Universitätsbuchhandlung, 816-832.
278
279
Luthardt, W. (1999), ‘Abschied vom deutschen Konsensmodell? Zur Reform des Föderalismus’, Aus Politik und Zeitgeschichte, B 13/99, 26 March 1999, 12-23. Männle, U. (ed.) (1998), Föderalismus zwischen Konsens und Konkurrenz. Tagungs- und Materialienband zur Fortentwicklung des deutschen Föderalismus. Baden-Baden: Nomos. Magiera, S. (1997), ‘Außenkompetenzen der deutschen Länder’, in K. Lüder (ed.), Staat und Verwaltung. Fünfzig Jahre Hochschule für Verwaltungswissenschaften Speyer. Berlin: Duncker & Humblot, 97-115. March, J. G. and H. A. Simon (1958), Organizations. New York: John Wiley & Sons. Marin, B. and R. Mayntz (eds) (1991a), Policy Networks. Empirical Evidence and Theoretical Considerations. Frankfurt am Main: Campus. Boulder, Colorado: Westview Press. Marin, B. and R. Mayntz (1991b), ‘Introduction: Studying Policy Networks’, in B. Marin and R. Mayntz (eds), Policy Networks. Empirical Evidence and Theoretical Considerations. Frankfurt am Main: Campus. Boulder, Colorado: Westview Press, 11-25. Marks, G. (1996), ‘An Actor-Centred Approach to Multilevel Governance’, Regional and Federal Studies, Vol. 6, No. 2, 20-41. Marks, G., L. Hooghe and K. Blank (1996), ‘European Integration from the 1980s: State-Centric v. Multi-Level Governance’, Journal of Common Market Studies, Vol. 34, No. 3, 341-378. Marks, G., F. Nielsen, L. Ray, and J. Salk (1996), ‘Competencies, Cracks and Conflicts: Regional Mobilization in the European Union’, in G. Marks, F. W. Scharpf, Ph. C. Schmitter and W. Streeck (eds), Governance in the European Union. London: Sage, 40-63. Marks, G., F. W. Scharpf, Ph. C. Schmitter and W. Streeck (eds) (1996), Governance in the European Union. London: Sage. Mayntz, R. (1993), ‘Policy-Netzwerke und die Logik von Verhandlungssystemen’, in A. Héritier (ed.), Policy-Analyse. Kritik und Neuorientierung. Politische Vierteljahresschrift Sonderheft 24. Opladen: Westdeutscher Verlag, 39-56. Mayntz, R. and F. W. Scharpf (1995), ‘Der Ansatz des akteurszentrierten Institutionalismus’, in R. Mayntz and F. W. Scharpf (ed.), Gesellschaftliche Selbstregelung und politische Steuerung. Frankfurt, New York: Campus, 39-72. McKay, D. (2001), Designing Europe. Comparative Lessons from the Federal Experience. Oxford: Oxford University Press. Michelmann, H. J. and P. Soldatos (eds) (1990), Federalism and International Relations. The Role of Subnational Units. Oxford: Clarendon Press.
279
280
Milward, A. S. (1994), The European Rescue of the Nation-State. London: Routledge. Morass, M. (1996), ‘Austria: The Case of a Federal Newcomer in European Union Politics’, Regional and Federal Studies, Vol. 6, No. 2, 76-95. Moravcsik, A. (1999), The Choice for Europe. Social Purpose and State Power from Messina to Maastricht. London: UCL Press. Moreno, L. (1999), ‘Asymmetry in Spain: Federalism in the Making?’, in R. Agranoff (ed.), Accommodating Diversity: Asymmetry in Federal States. Baden-Baden: Nomos, 149-169. Mörsdorf, R. (1996), Das belgische Bundesstaatsmodel im Vergleich zum deutschen Bundesstaat des Grundgesetzes. Frankfurt am Main: Peter Lang Verlag. Müller, W. (2000), ‘Austria’, in H. Kassim, G. B. Peters and V. Wright (eds) (2000), The National Co-ordination of EU Policy. The Domestic Level. Oxford: Oxford University Press, 201-218. Müller-Terpitz, R. (1999), Die Beteiligung des Bundesrates am Willensbildungsprozess der Europäischen Union. Das Bundesratsverfahren nach Art. 23 Abs. 2, 4 bis 7 GG unter besonderer Berücksichtigung seiner verfahrensrechtlichen Ausgestaltung. Stuttgart: Richard Boorberg Verlag. Münch, U. (1999), ‘Entwicklung und Perspektiven des deutschen Föderalismus’, Aus Politik und Zeitgeschichte, B 13/99, 26 March 1999, 3-11. Nettesheim, M. (2002), ‘Grundgesetzlicher Föderalismus und Eigenverantwortlichkeit der Aufgabenerfüllung – Zu den Grenzen der Kooperation zwischen den Ländern’, in Europäisches Zentrum für Föderalismus-Forschung in Tübingen (ed.), Jahrbuch des Föderalismus 2002. Föderalismus, Subsidiarität und Regionen in Europa. Baden-Baden: Nomos, 252-274. Neunreither, E. B. (2001), Die Interessenvertretung der Regionen bei der Europäischen Union. Deutsche Länder, spanische Autonome Gemeinschaften und französische Regionen. Frankfurt am Main: Peter Lang. Nicolaidis, K. and R. Howse (eds) (2001), The Federal Vision. Legitimacy and Levels of Governance in the United States and the European Union. Oxford: Oxford University Press. Niedobitek, M. (2001), Das Recht der grenzüberschreitenden Verträge. Bund, Länder und Gemeinden als Träger grenzüberschreitender Zusammenarbeit. Tübingen: Mohr Siebek. Niedobitek, M. (2002), ‘Rechtliche Probleme für die Außenbeziehungen von Regionen, dargestellt am deutschen Beispiel’. Paper presented at the conference on ‘Außenbeziehungen von Regionen’ organised by the European Centre for Research on Federalism of the University of Tübingen in Karlsruhe, Germany, June 2002.
280
281
Nipperdey, Th. (1980), ‘Der Föderalismus in der deutschen Geschichte’, in J. C. Boogman and G. N. van der Plaat (eds), Federalism. History and Current Significance of a Form of Government. The Hague: Martinus Nijhoff, 125-177. North, D. C. (1990), Institutions, Institutional Change and Economic Performance. Cambridge: Cambridge University Press. Oberländer, S. (2000), Aufgabenwahrnehmung im Rahmen der EU durch Vertreter der Länder. Theorie und Praxis im Vergleich. Baden-Baden: Nomos. Öhlinger, Th. (1999), ‘Artikel 23d’, in K. Korinek and M. Holoubek, Österreichisches Bundesverfassungsrecht. Textsammlung und Kommentar. Band II. Wien: Springer, 1-22. Olsen, J. P. (2002), ‘The Many Faces of Europeanisation’, ARENA Working Papers, WP 01/2 at http://www.arena.uio.no/publications/wp02_2.htm Oschatz, G.-B. and H. Risse (1995), ‘Die Bundesregierung an der Kette der Länder? Zur europapolitischen Mitwirkung des Bundesrates’, Zeitschrift für öffentliches Recht und Verwaltungswissenschaft, Vol. 48, No. 11, 437-452. Papier, H.-J. (2003), ‘Abschluß völkerrechtlicher Verträge und Föderalismus. Lindauer Abkommen’, Die Öffentliche Verwaltung, Vol. 56, No. 7, 265-270. Pappi, F.U., Th. König and D. Knoke (1995), Entscheidungsprozesse in der Arbeits- und Sozialpolitik. Der Zugang der Interessengruppen zum Regierungssystem über Politikfeldnetze. Ein deutsch-amerikanischer Vergleich. Frankfurt am Main, New York: Campus. Pattee, H. H. (ed.) (1973), Hierarchy Theory. The Challenge of Complex Systems. New York: George Braziller. Peeters, P. (1994a), ‘Federalism: A Comparative Perspective – Belgium Transforms from a Unitary to a Federal State’, in B. De Villiers (ed.), Evaluating Federal Systems. Dordrecht: M. Nijhoff, 194-208. Peeters, P. (1994b), ‘Le principe de la loyauté fédéral: une métamorphose radicale’, Administration Publique. Revue du droit public et des sciences administratives, No. 2-3, 239-242. Perkmann, M. (1999), ‘Building Governance Institutions Across European Borders’, Regional Studies, Vol. 33, No. 7, 657-667. Pernthaler, P. (1991), Außenpolitik der Gliedstaaten und Regionen. Wien: Braumüller. Peters, G. B. and D. J. Savoie (1995), Governance in a Changing Environment. Montreal & Kingston: McGill-Queen’s University Press.
281
282
Peters, G. and J. Pierre (2001), ‘Multi-Level Governance: A Faustian Bargain?’. Paper presented at the conference on ‘Multi-Level Governance: Interdisciplinary Perspectives’ organised in June 2001 by the Political Economy Research Centre of the University of Sheffield in Sheffield, UK. Philippart, E. and M. Van Cutsem (1998), ‘Zwischen Rekomposition und Fragmentierung: Die Außen- und Europapolitik der föderalen Einheiten Belgiens’, in R. Krämer (ed.), Regionen in der Europäischen Union. Beiträge zur Debatte. Berlin: Berliner Debatte, Wiss.-Verl., 204-223. Poirier, J. (2002), ‘Formal Mechanisms of Intergovernmental Relations in Belgium’, Regional and Federal Studies, Vol. 12, No. 3, 24-55. Pressien, W. (1996), Föderalistische Strukturverschiebungen. Zur stillen Aufwertung der Länder im Kontext des österreichischen EU-Beitritts. Wien: Institut für Höhere Studien. Rhodes, R. A. (1996), ‘The New Governance: Governing without Government’, Political Studies, Vol. 44, No. 4, 652-667. Ritter, J. (ed.) (1971), Historisches Wörterbuch der Philosophie, Vol. 3. Basel, Stuttgart: Schwabe & Co Verlag. Risse, T., M. G. Cowles and J. Caporaso (eds) (2001), Europeanization and Domestic Change. Ithaca NY: Cornell University Press. Roller, G. (1998), ‘Die Mitwirkung der deutschen Länder und der belgischen Regionen an EG-Entscheidungen. Eine rechtsvergleichende Untersuchung am Beispiel der Umweltpolitik’, Archiv des öffentlichen Rechts, Vol. 123, 21-59. Rosenau, J. N. (1997), Along the Domestic-Foreign Frontier. Exploring Governance in a Turbulent World. Cambridge: Cambridge University Press. Rosenau, J. (2001), ‘Strong Demand, Huge Supply: Governance in an Emergent Epoch’. Paper presented at the conference on ‘Multi-Level Governance: Interdisciplinary Perspectives’ organised in June 2001 by the Political Economy Research Centre of the University of Sheffield in Sheffield, UK. Rosner, A. (2000), Koordinationsinstrumente der österreichischen Länder. Wien: Braumüller. Rosner, A. (2001), ‘Mitgestaltungsinstrumente der Länder in Angelegenheiten der europäischen Integration’, in P. Bußjäger and Ch. Kleiser (eds), Legistik und Gemeinschaftsrecht. Wien: Braumüller, 77-87. Saller, R. (1999), Möglichkeiten und Grenzen der Beteiligung der Kommunen und Regionen an den Entscheidungen der Europäischen Union. Würzburg: Ergon. Salthe, S. N. (1985), Evolving Hierarchical Systems. Their Structure and Representation. New York: Columbia University Press.
282
283
Sand, I. (1998), ‘Understanding the New Forms of Government: Mutually Interdependent, Reflexive, Destabilised and Competing Institutions’, European Law Journal, Vol. 4, No. 3, 271-293. Scelle, G. (1959), ‘Fédéralisme et Proudhonisme’, in Oeuvres complètes de P.-J. Proudhon. Du principe fédératif et oeuvres diverses sur les problèmes politiques Européens. Paris: Librairie Marcel Rivière, 9-23. Schäffer, H. (1993), ‘Der österreichische Föderalismus – Rechtskonzept und politische Realität’, in J. Kramer (ed.), Föderalismus zwischen Integration und Sezession. Chancen und Risiken bundesstaatlicher Ordnung. Baden-Baden: Nomos, 171-199. Scharpf, F. W. (1985), ‘Die Politikverflechtungs-Falle: Europäische Integration und deutscher Föderalismus im Vergleich’, Politische Vierteljahresschrift, Vol. 26, No. 4, 323-356. Scharpf, F. W. (ed.) (1993), Games in Hierarchies and Networks. Analytical and Empirical Approaches to the Study of Governance Institutions. Frankfurt a. M.: Campus. Scharpf, F. W. (1997), Games Real Actors Play. Actor-Centered Institutionalism in Policy Research. Oxford: Westview Press. Scherer, R. and K.-D. Schnell (2002), ‘Die Stärke schwacher Netzwerke – Entwicklung und aktuelle Situation der grenzüberschreitenden Zusammenarbeit in der Regio Bodensee’, in Europäisches Zentrum für Föderalismus-Forschung in Tübingen (ed.), Jahrbuch des Föderalismus 2002. Föderalismus, Subsidiarität und Regionen in Europa. Baden-Baden: Nomos, 502-520. Schmitt, N. (1994), ‘The Foreign Policy of Spanish Autonomous Communities Compared to that of Swiss Cantons’, in B. De Villiers (ed.), Evaluating Federal Systems. Dordrecht: M. Nijhoff, 362-393. Schmitt-Egner, P. (2000), Handbuch der Europäischen Regionalorganisationen. Akteure und Netzwerke des Transnationalen Regionalismus von A bis Z. Baden-Baden: Nomos. Schmitt-Egner, P. (2001), ‘Von der “Grenzübergreifenden Region” Saar-Lor-Lux zur europäischen “Großregion” Saar-Lor-Lux-Rheinland-Pfalz-Wallonien - Rahmenbedingungen, Strukturwandel und Akteure der grenzüberschreitenden Zusammenarbeit in Saar-Lor-Lux’, in Europäisches Zentrum für Föderalismus-Forschung in Tübingen (ed.), Jahrbuch des Föderalismus 2001. Föderalismus, Subsidiarität und Regionen in Europa. Baden-Baden: Nomos, 357-379. Schmitt-Egner, P. (2002), ‘Grenzüberschreitende Zusammenarbeit (GZA) in Saar-Lor-Lux: Labor einer Europäischen Integration “von unten”? Zum Verhältnis von interregionaler Kooperation und transnationaler Integration’, in Europäisches Zentrum für Föderalismus-Forschung in Tübingen (ed.), Jahrbuch des Föderalismus 2002. Föderalismus, Subsidiarität und Regionen in Europa. Baden-Baden: Nomos, 471-488.
283
284
Schubert, K. (1991), Politikfeldanalyse. Opladen: Leske + Budrich. Schobben, R. (2000), ‘New Governance’ in the European Union: A Cross-Disciplinary Comparison’, Regional and Federal Studies, Vol. 10, No. 2, 35-62. Staudigl, F. and R. Fischler (eds) (1996), Die Teilnahme der Bundesländer am europäischen Integrationsprozess. Wien: Braumüller. Schweizer, R. J. and S. C. Brunner (1998), Die Mitwirkung der Bundesländer an EU-Vorhaben in der Bundesrepublik Deutschland und in Österreich. Ein Modell für die Mitwirkung der Kantone in der Aussenpolitik. Bern: Stämpfli Verlag AG. Scott, J. W. (1999), ‘European and North American Context for Cross-border Regionalism’, Regional Studies, Vol. 33, No. 7, 605-617. Simon, H. (1975), The Sciences of the Artificial. Cambridge, Massachusetts, and London: The M. I. T. Press. Sodupe, K. (1999), ‘The European Union and Inter-regional Co-operation’, Regional and Federal Studies, Vol. 9, No. 1, 58-81. Soldatos, P. (1990), ‘An Explanatory Framework for the Study of Federated States as Foreign-policy Actors’, in H. J. Michelmann and P. Soldatos (eds), Federalism and International Relations. The Role of Subnational Units. Oxford: Clarendon Press, 34-53. Soldatos, P. (1993), ‘Cascading Subnational Paradiplomacy in an Interdependent and Transnational World’, in D. M. Brown and E. H. Fry (eds), States and Provinces in the International Economy. Barkeley: University of California Press, 45-64. Stern, K. (1995), ‘Auswärtige Gewalt und Lindauer Abkommen’, in J. Ipsen, H.-W. Rengeling, J. M. Mössner and A. Weber (eds) Verfassungsrecht im Wandel. Wiedervereinigung Deutschlands. Deutschland in der Europäischen Union. Verfassungsstaat und Föderalismus. Köln, Berlin, Bonn, München: Carl Heymanns Verlag, 251-270. Stroobants, J.-P. (2001), ‘La réforme de l’Etat de juin 2001: les détours de polycarpe’, in A. Leton (ed.), La Belgique: un état fédéral en évolution. Bruxelles: Bruylant, 51-61. Sverdrup, U. (2002), ‘Europeanization and Implementation of Community Legislation. A Nordic Model?’. Paper presented at ECPR Joint Sessions of Workshops in March 2002 in Turin, Italy. Tannenbaum, A. S., B. Kav i , M. Rosner, M. Vianello and G. Wieser (eds) (1974), Hierarchy in Organisations. San Francisco: Jossay-Bass Publishers. Tarlton, C. D. (1965), ‘Symmetry and Asymmetry as Elements of Federalism: A Theoretical Speculation’, Journal of Politics, Vol. 27, No. 4, 861-874.
284
285
Thaler, M. (1990), Die Vertragsschlußkompetenz der österreichischen Bundesländer. Wien, Köln: Böhlau. Thompson, J. D. (1967), Organizations in Action. Social Science Bases of Administrative Theory. New York: McGraw-Hill. Thompson, V. A. (1976), Bureaucracy and the Modern World. Morristown, N. J.: General Learning Press. Thompson, G., J. Frances, R. Leva i and J. Mitchell (eds) (1991), Markets, Hierarchies and Networks. The Coordination of Social Life. London, Newbury Park, New Delhi: Sage Publications. Umbach, M. (ed.) (2002), German Federalism. Past, Present and Future. New York: Palgrave. Van den Brande, L. (1998), ‘The International Legal Position of Flanders: Some Considerations’, in K. Wellens, International Law: Theory and Practice. The Netherlands: Kluwer Law International, 145-158. Vile, M. J. C. (1961), The Structure of American Federalism. London: Oxford University Press. Vink, M. (2002), ‘The Limited Europeanization of Domestic Admission Policies: Evidence from the Netherlands’. Paper presented at ECPR Joint Sessions of Workshops in March 2002 in Turin, Italy. Wachendorfer-Schmidt, U. (1999), ‘Der Preis des Föderalismus in Deutschland’, Politische Vierteljahresschrift, Vol. 40, No. 1, 3-39. Wagstaff, P. (ed.) (1999), Regionalism in the European Union. Exeter, Portland: Intellect. Walter, R. and H. Mayer (1996), Grundriß des österreichischen Bundesverfassungsrechts. Wien: Manz. Watts, R. L. (1999a), Comparing Federal Systems. Montreal and Kingston: McGill-Queens’s University Press. Watts, R. L. (1999b), ‘German Federalism in Comparative Perspective‘, in Ch. Jeffery (ed.), Recasting German Federalism. The Legacies of Unification. London and New York: Pinter, 265-285. Watts, R. L. (1999c), ‘The Theoretical and Practical Implications of Asymmetrical Federalism’, in R. Agranoff (ed.), Accommodating Diversity: Asymmetry in Federal States. Baden-Baden: Nomos, 24-43. Weber, K. (1980), Kriterien des Bundesstaates. Eine systematische, historische und rechtsvergleichende Untersuchung der Bundesstaatlichkeit der Schweiz, der Bundesrepublik Deutschland und Österreichs. Wien: Wilhelm Braumüller.
285
286
Weiler, J. H. H. (2000), ‘Federalism and Constitutionalism: Europe’s Sonderweg’. Unpublished manuscript (cited from Hooghe and Marks, 2001). Wheare, K.C. (1951), Federal Government. London: Oxford University Press. Wildhaber, L. (1971), Treaty-Making Power and Constitution. An International and Comparative Study. Basel and Stuttgart: Helbing & Lichtenhahn. Winkelmann, I. (1993), ‘Innerstaatliche Kompetenzverteilung bei Vertragsabschlüssen in Angelegenheiten der Europäischen Union. Zur Nichtbeachtlichkeit der Lindauer Absprache im Anwendungsbereich von Art. 23 n. F. GG’, Deutsches Verwaltungsblatt, Vol. 108, 1128-1136. Witte, E. and H. Van Velthoven (1999), Language and Politics. The Belgian Case Study in a Historical Perspective. Brussels: VUB University Press. Witte, E., J. Craeybeckx and A. Meynen (2000), Political History of Belgium from 1830 onwards. Antwerpen: Standaard. Brussels: VUB University Press. Zafonte, M. and P. Sabatier (1998), ‘Shared Beliefs and Imposed Interdependences as Determinants of Ally Networks in Overlapping Subsystems’, Journal of Theoretical Politics, Vol. 10, No. 4, 473-505. Zimmermann-Steinhart, P. (2001), ‘Die Entstehung der Initiative “Vier Motoren für Europa”’, in Th. Fischer and S. Frech (eds), Baden-Württemberg und seine Partnerregionen. Stuttgart: Landeszentrale für Politische Bildung Baden-Württemberg.
286
b) Selected list of documents and legal texts in alphabetical order
Additional Protocol to the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities of 9 November 1995, available at http://conventions.coe.int/Treaty/en/Treaties/Html/159.htm (accessed in August 2003).
The Assembly of European Regions (1996), Declaration on Regionalism in Europe, available at http://www.are-regions-europe.org/COMMUN/A41bis.html (accessed in March 2003).
Bundes-Verfassungsgesetz (The Austrian Constitution), available at http://www.parlinkom.gv.at/pd/gesetze/b-vg/default.html (accessed in August 2003).
Commissariat Général aux Relations International et Division des Relations International (2001), Rapport d’activités 2001. Bruxelles.
Commission of the European Communities C (2000) 1101 – EN, Communication from the Commission to the Member States of 28 April 2000 laying down guidelines for a Community Initiative concerning trans-European cooperation intended to encourage harmonious and balanced development of the European territory. INTERREG III.
La constitution belge (The Belgian Constitution), available at http://www.senate.be/doc/const_fr.html (accessed in August 2003).
European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities of 21 May 1980, available at http://conventions.coe.int/Treaty/en/Treaties/Html/106.htm (accessed in August 2003).
Gesetz über die Zusammenarbeit von Bund und Ländern in Angelegenheiten der Europäischen Union of 12 March 1993, Bundesgesetzblatt No. 9, Part I, 19 March 1993.
Grundgesetz für die Bundesrepublik Deutschland (The German Basic Law), available at www.bundestag.de/gesetze/gg (accessed in August 2003).
Loi spéciale sur les rélations internationales des Communautés et des Régions de 5 mai 1993/Bijzondere wet betreffende de internationale betrekkingen van de Gemeenschappen en de Gewesten van 5 mei 1993, in Moniteur belge/Belgisch staatsblad, 08. 05. 1993.
Ministère de la Région Wallonne (2003), Liste des accords signés par la Communauté Française, la Région Wallonne et la Commission Communautaire Française, unpublished document.
Ministerie van de Vlaamse Gemeenschap, Administratie Buitenlands Beleid (2003), Repertorium van de binnenlandse samenwerkingsakkoorden en de internationale overeenkomsten waarbij Vlaanderen als partij betrokken is, available at www.law.kuleuven.ac.be/iir/verdragen/verdragenindex.htm (accessed in July 2003).
The Protocol No. 2 to the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities Concerning Interterritorial Co-operation of 5 May 1998, available at http://conventions.coe.int/Treaty/en/Treaties/Html/169.htm (accessed in August 2003).
287
Samenwerkingsakkoord tussen de Federale Staat, de Gemeenschappen en de Gewesten, met betrekking tot de vertegenwoordiging van het Koninkrijk België in de Ministerraad van de Europese Unie van 8 maart 1994/Accord de coopération entre l’Etat fédéral, les Communautés et les Régions, relatif à la représentation du Royaume de Belgique au sein du Conseil de Ministres de l’Union européenne de 8 mars, in Moniteur belge/Belgisch staatsblad, 17. 11. 1994.
Sekretariat des Bundesrates, Büro des Ausschusses für Fragen der Europäischen Union (2002), Qualifizierte Mitwirkung des Bundesrates in Angelegenheiten der Europäischen Union, unpublished document.
Treaty of Amsterdam, available at http://europa.eu.int/eur-lex/en/treaties/dat/amsterdam.html(accessed in August 2003).
Vereinbarung zwischen dem Bund und den Ländern gemäß Artikel 15 a B-VG über die Mitwirkungsrechte der Länder und Gemeinden in Angelegenheiten der europäischen Integration of 12 March 1992, in K. H. Fischer (2000), op. cit., Anhang 2, 138-141.
Vienna Convention on the Law of Treaties of 22 May 1969, available at http://www.un.org/law/ilc/texts/treaties.htm (accessed in August 2003).
288
Recommended