The Sub-national Dimension of the EU
School of Law, Liverpool John Moores University, Liverpool, UK
The emergence of the ‘Third Level’, i.e. the sub-national dimension of the EU, raises the question of the status of the sub-state authorities in the EU. Are these authorities full European players in their own right (i.e., with their ‘own’ rights and duties in the EU multilevel system), or is the EU a ‘union of states’ in which only the Member States (and their citizens) are subjects of rights and duties stemming from the EU multilevel system? The Union is not a State, and as such it does not have a constitution comparable to a State constitution, even though the ECJ regards the Treaties as the ‘constitutional charter’ of the Union.1 The creation of the Communities and later of the Union placed a further echelon of power above the Member States. One of the results of European integration is that the European citizen nowadays is subjected to the authority of the State and also to the authority of another entity, the Union, above the State, which is responsible for certain policy areas. Whilst until the 1950s (or maybe, more realistically, until the Single European Act of 1986) the exercise of public power had to abide fundamentally by only one constitution in each Member State (the State constitution), today the State constitution regulates only the State power. The authoritative decision-making of the Union is largely regulated by another, albeit coordinated with the former, ‘tier’ of constitutional law, i.e., EU primary law (the Treaties). This landscape suggests that there must be a degree of homogeneity between the State constitutional law and the EU primary law. Only States with a liberal-democratic setting, market economy, respectful of human rights, can join and remain members of the Union. The coexistence of multiple layers of authority (State and supranational) and of multiple constitutional levels corroborates the idea that the European constitutional space is a constitutional mosaic resulting from the EU and the Member States’ constitutions.
The constitutional principles of the European constitutional space (i.e., of this composite of Member States’ constitutions and EU constitution) have a national and a supranational dimension. For example, this is the case of the principle of supremacy of EU law. This principle has a supranational dimension (determined by the ECJ and rooted in the Treaty) and a national dimension. It is conjugated by each Member State in their own way, despite being fundamentally accepted by all the Member States as an integral part of the ‘acquis communautaire’.2 Another example is the doctrine of general principles of Community (now Union) law. According to this doctrine, fundamental human rights are part of a heritage that is common to the EU and to all the Member States. These rights are general principles of Union law, and their sources are essentially the ECHR (of which all the Member States are parties) and the common constitutional traditions of the Member States.3 So it is apparent that these principles result from the coexistence and interaction, or better the combination, the ‘fusion’,4 of different constitutional levels. Accordingly, the EU can be realistically defined as a ‘constitutional composite’ resulting from the own primary law and the constitutional laws of the Member States. The principles of this ‘composite’ (or ‘compound of constitutions’, Verfassungsverbund) have both national and supranational dimensions in the context of the European Mehrebenensystem (multilevel system).5
This chapter will test the hypothesis that the EU is a unique setting in which the sub-national authorities (the ‘Third Level’) are an integral part of the European architecture. Their position is the result not only of the EU law but also of the combination of the EU law and of the national laws (‘compound of constitutions’ theory). The rights and duties of the sub-national authorities vis-à-vis the EU stem both from the Treaties and the constitutions of the Member States. The position of the sub-national authorities in the EU context is characterised by a certain degree of strength and stability and also by significant asymmetry across the different Member States.
This hypothesis will be tested through the analysis of the EU primary lawmaking (Sect. B), of the involvement of the sub-national authorities in lawmaking in the Council (Sect. C), of the implementation of EU law by the sub-national authorities (Sect. D) and of the direct challenge of Union acts by the sub-national authorities (Sect. E).
B. Beyond the ‘Masters of the Treaties’ Dogma
The traditional and ‘orthodox’ EU law perspective is that the Member States are the ‘masters of the Treaties’. This is confirmed by a prima facie reading of Article 48 TEU on the procedures for amending the Treaties. However, the transfer of powers from the national level to the EU could undermine the role of the local/regional authorities and alter the constitutional balance between central and sub-national government. This complexity of the EU multilevel system is addressed at Member State level through the involvement of the local/regional authorities in different ways in the decisions concerning the amendment of the Treaties. The following excursus corroborates the submission that the sub-national dimension, albeit to a varying degree in the different Member States, is an integral part of the EU multilevel system. At the same time it challenges the traditional/orthodox picture of the Member States as the sole ‘masters of the Treaties’.
In Belgium, the rights of the regional entities in the European context are guaranteed in accordance with the constitutional principle ‘in foro interno et in foro externo’ (lit. in the domestic and in the external jurisdiction).6 From this principle derives that the Belgian Regions and Communities are able to decide on the transfer to the EU of the exclusive powers they enjoy on the domestic level. A Treaty concerning these powers can only enter into force in Belgium if the parliaments of all the regional entities concerned consent to it.7 As a result, every sub-state parliament has a right of veto regarding the ratification of the Treaty by Belgium.8 This feature of the Belgian system is at odds with the conventional opinion that the Member States are the sole ‘masters of the Treaties’. It shows how a more accurate analysis of the Member States’ constitutional systems discloses a much more variegated reality.
In Germany, the Länder are involved collectively, as a level of government, in the approval of a Treaty. An individual Land does not have a right of veto. Every new Treaty would need to be approved by two-thirds majority in the Bundesrat (the legislative chamber representing the Länder on the federal level), as well as in the Bundestag (democratically elected chamber representing the German people).9 The German pattern is similar to the solution adopted in Austria, where amendments to the founding Treaties require the approval by two-thirds majority in both the Nationalrat (chamber representing all the Austrian people) and the Bundesrat (chamber representing the Länder at federal level).10 The main difference between the German and the Austrian patterns is that the representatives of the Länder in the German Bundesrat are appointed (and recalled) by the government of their Land, whereas those in the Austrian Bundesrat are elected by each regional parliament. Moreover, whilst in Germany the Länder representatives are bound by the instructions coming from the government of their Land, the Länder representatives in the Austrian Bundesrat enjoy a free mandate. These arrangements grant the German and Austrian Länder an indirect participation in the Treaty-making procedure and, again, show how a holistic assessment of the Treaty-amending process leads to a more inclusive concept of the European Union as a multilevel system that embraces the sub-national dimension.11
The participation of the Spanish Autonomous Communities in the Treaty-amendment processes is weak compared to that of the German and Austrian Länder. The Spanish Senate is not a real ‘chamber of the regions’. The representation of the Autonomous Communities as a proportion of the membership of the Spanish Senate is not significant.12 Furthermore, although the Senate is involved in the ratification of new Treaties, the Congress13 (the chamber representing the totality of Spanish people) still retains the power to overcome the Senate’s possible veto by absolute majority or even, but only after 2 months, by simple majority.14 However, whilst not necessarily decisive in practice, the involvement of the Autonomous Communities in the decision on the transfer of powers to the EU is quite important from a constitutional perspective, insofar as it contributes to the legitimacy of the Treaty-amending process in Spain, i.e., insofar as it brings into line the EU and the Spanish constitutional systems by recognising the role of the Autonomous Communities.
In the UK, foreign relations are under the exclusive control of Westminster. The Concordat on Co-ordination of European Policy Issues, a political document binding in honour only, says that the UK government should share with the devolved administrations any information concerning the EU that is relevant to them, including any proposal for Treaty change.15 It would be unthinkable for a Treaty amendment touching on devolved matters to take place without prior consultation with the devolved administrations. The constitutional standing of these administrations requires this type of involvement for the legitimacy of the EU primary lawmaking. In the absence of such involvement, there would be an obvious clash with the national constitutional framework. The same issue is addressed in a similar way also by the Portuguese Constitution. The two Autonomous Regions of Portugal (Azores and Madeira) are not directly involved in the negotiation of a new Treaty. However, if the Treaty touches on matters falling within their responsibility, they must be heard.16
In Italy, there is no specific basis for regional or local involvement in the EU primary lawmaking. The Italian Senate is elected in region-wide electoral constituencies, but it does not comprise representatives of the Regions. Still, political opportunity and legitimacy of the Italian participation in the EU would require that a proposed Treaty amendment, affecting significantly the constitutional role and responsibilities of the sub-national authorities, would have to be discussed by the central government with the sub-national stakeholders in the appropriate institutional loci (for example, in the State-Regions Conference or the State-Regions-Local Authorities’ Conference).
In addition to the ex post involvement of the sub-national authorities in the ratification of a new European Treaty, the Member States may also involve the sub-national level in the work of an Intergovernmental Conference (IGC) or Convention leading to a new Treaty. The German Länder obtained two representatives in the German delegation to the IGC, which led to the Treaty of Maastricht. These contributed to secure the introduction of the principle of subsidiarity, the establishment of the Committee of the Regions and the opening up of the Council to regional representatives ‘at ministerial level’.17 This type of involvement is very important, given that participating in the negotiation of a new Treaty could result more fruitful than the simple ex post approval (or threat of non-approval) of a Treaty already negotiated and signed by the Member States’ national governments.
C. Sub-national Participation in Lawmaking in the Council and Through the Committee of the Regions (CoR)
Article 16(2) TEU stipulates that a Member State can be represented in the Council by a person ‘at ministerial level’ entitled to ‘commit’ the national government and to ‘cast its vote’.18 This Treaty provision makes it possible for the sub-national authorities to participate in Council meetings if/when the Member State allows their participation (external representation). However, participation of the sub-national authorities in Council meetings is not limited to the ‘external representation’ pattern outlined by Article 16(2) TEU. In the Member States, there are ad hoc arrangements for the involvement of sub-national authorities in the preparation of Council meetings when the Council agenda features topics of regional interest (internal cooperation). In the Member States, there are different patterns of external and internal involvement of the sub-national authorities in the Council lawmaking activity (cf. Table 2.1 for a summary of the different national positions). It emerges that the EU lawmaking process in the Council is not entirely ‘State dominated’. The participation rights of the sub-national entities result from the combination of EU and national processes, which corroborates the hypothesis that the sub-national actors are an integral part of the EU ‘multilevel system’.19
Participation of sub-national authorities in lawmaking in the Councila
External representation in the Council
Internal cooperation is the internal coordination of the positions of the central government and of the sub-national authorities prior to a Council meeting. The aim is to achieve a common position that is to be defended in the Council by either the central government or a representative ‘at ministerial level’ of a regional government.
External representation is the participation of regional representatives in Council meetings in accordance with Article 16(2) TEU.
When the Länder reach a common position in a matter falling within their responsibility, the Federal Government is bound to uphold this stance in the Council. The Federal Government can only depart from this common position on grounds of compelling issues of European integration policy and foreign policy (‘aus zwingenden integrations- und außenpolitischen Gründen’; cf. Art. 23d (2) Federal Constitutional Law). The existence of such compelling issues is determined by the Federal Government and is not justiciable.
The Austrian Constitution (cf. Art. 23d (1) Federal Constitutional Law) provides that if a matter that belongs to the competence of the Länder, or which is of interest to them, is dealt with at European level, the Federal Government may allow a regional minister to represent Austria in the Council. The regional minister will have to collaborate with the representative of the Federation, and like a federal minister (when representation is withheld by the Federal Government), he will be bound to defend the common position of the Länder. The regional representative does not represent his Land but the entire Member State. To date, this participation opportunity has never been used by the Länder.
Pursuant to the Cooperation Agreement of 17 November 1994, all Councils on matters falling within the responsibility of the Belgian Regions or Communities are preceded by a coordination meeting between the national government and the sub-national governments. The common position agreed at the meeting is binding and must be defended by the Belgian representative in the Council. In the event that no common position is achieved, it is mainly understood that the Belgian representative will have to abstain from voting.
The Cooperation Agreement of 8 March 1994 provides three possible forms of representation in the Council:
(1) a representation by the national government for exclusive federal responsibilities;
(2) an exclusive representation by the Communities and the Regions for those responsibilities that belong exclusively to the Communities or the Regions;
(3) a mixed representation that finds application when there are matters on the Council agenda that belong partly to the exclusive responsibility of the national government and partly to the exclusive responsibility of the Regions or the Communities. In mixed representation, the head of the Belgian delegation to the Council may be a federal or a regional minister.
When an EU proposal focuses on a matter falling within the legislative competence of the Länder, the Basic Law establishes that in such a situation the Federal Government must pay ‘the greatest possible respect’ (maßgeblich zu berücksichtigen) to the Bundesrat’s position (cf. Art. 23(5) Basic Law). This expression presumably means that the Federal Government has to defend the position of the Bundesrat in the Council, unless this goes against the interest of Germany as a Member State or unless compelling reasons of foreign policy or European integration justify departure from that position.
The Basic Law provides for the representation of Germany in the Council by a regional minister when draft EU acts primarily concern the exclusive competences of the Länder in the areas of education, culture or radio/TV (cf. Art. 23(6) Basic Law). The right to represent Germany belongs to a representative of the Länder designated by the Bundesrat. The representative of the Länder (who becomes the representative of the entire Federal Republic and not only of a single Land) must act ‘with the participation of and in coordination with’ the Federal Government. ‘Participation’ implies that the representatives of the Federation have the right to participate in all meetings and official contacts, together with the Länder representative. ‘Coordination’ is more difficult to construe. According to the bicameral commission that drafted Article 23 of the Basic Law, ‘coordination’ is something less than an ‘agreement’ but something more than simple ‘respect for the other’s point of view’. It is arguable that the representative of the Länder should pay the greatest possible respect to the position of the Federal Government.
The Autonomous Communities have the right to express common positions in matters that fall within their responsibility. There are two possible scenarios depending on the type of competence of the Autonomous Communities. If an EU draft act falls within an area of exclusive autonomic responsibility, the common position of the Autonomous Communities ‘will be taken into account [by the national government] in a decisive way’ (será tenida en cuenta de forma determinante). If an EU proposal falls within an area of non-exclusive autonomic competence (i.e., an area where the legislative power is shared by the State and the Autonomous Communities), the Autonomous Communities need to reach a common position, and this position needs to be agreed with the national government. In both scenarios, the government will normally defend the regional position or the position agreed with the regional authorities. The government may exceptionally depart from the regional position, if this is necessary in Spain’s best interest. Cf. Agreement of 30 November 1994.
A representative of the Autonomous Communities is admitted to the Spanish delegation to the Council for matters of regional interest. The Spanish Autonomous Communities are allowed to participate in five Council configurations: employment, social policy, health and consumer affairs; agriculture and fisheries; environment; education, youth and culture; competitiveness.
The regional representative may be authorised by the head of the Spanish delegation to speak during Council meetings, but in no case is he entitled to cast the vote on behalf of Spain. Cf. Agreement of 9 December 2004.
The Interdepartmental Committee for European Affairs (CIAE in acronym) is a body comprising the Italian prime minister and other ministers. CIAE discusses EU-related issues in order to decide the position of the Italian government on the EU level. This is an important forum for discussion and consultation. When issues relating to regional or local interests and/or responsibilities are on the agenda, regional and local delegates (4 in total) participate in the meetings and in this way can make a contribution to defining the Italian position (cf. Art. 2 Law No. 234 of 24 December 2012).
The Italian Regions may also request the submission to the State-Regions Conference of any EU proposal touching on matters falling within their legislative responsibility. If no agreement is reached within the Conference, the government in the Council is free to depart from the position of the Regions (cf. Art. 24 Law No. 234 of 24 December 2012).
In theory, Italy offers a significant possibility that representatives of the Regions will be included in the external representation of Italy in the Council. Direct participation of Regions in EU decision-making process is based on Article 117(5) of the Constitution. This provision establishes that the Regions (as well as the Autonomous Provinces of Trento and Bolzano) have the right to participate in all the decisions about the formation of Union law in relation to matters that fall within their responsibility. Article 5 of Law No. 131 of 5 June 2003 specifies that regional participation in the Council takes place in the framework of the national government’s delegation and that a president of a Region (that is, the head of a regional government) may even be appointed as head of the delegation. This may happen when a matter of exclusive legislative competence of the Regions is on the agenda.
The true and actual weight of such participation is limited, though, by the indivisibility of the Italian delegation before the EU. This is due to the need to guarantee the unitary position of the Italian Republic and to speak with a single voice in the international and supranational arena. This legal requirement is rooted in Article 5 of the Italian Constitution (‘The Republic is one and indivisible’). So far, Italy has not yet been represented by a head of a regional government, nor has the Italian vote ever been cast by a regional representative. In fact, the role of the Italian Regions is limited to consultation by the national government.
In the UK, there is no formal legal basis for consultation of the three devolved administrations (Northern Ireland, Scotland, Wales). In principle, the UK government and parliament are the sole authorities responsible for relations with the EU. There is a quasi-legal agreement in place (Memorandum of Understanding, which is ‘binding in honour only’) that requires the UK government to consult the devolved administrations when EU proposals have an impact on their responsibilities. The position of the devolved administrations is not legally binding on the national government.
In the UK, ministers and officials from the devolved administrations have to play a role in Council meetings. This has to happen when on the Council agenda there are matters likely to have a significant impact on devolved powers. Decisions on ministerial attendance at these meetings are taken on a case-by-case basis by the competent UK minister. It is the UK minister who is responsible for conducting the negotiations and who determines how each member of the team can best contribute to secure the agreed position. This implies that the UK minister may even allow a regional minister to act as the UK spokesperson in the Council, but there is no guarantee that this will be the case. The UK minister may decide that the regional minister should not have a particular role to play, even in a situation where the matter on the Council agenda has a significant impact on the devolved authorities. In any case, it will need to be ensured that the UK speaks with a single voice on the EU level. To this purpose, the regional minister who eventually represents the UK in the Council will need to agree his position with the UK government.
Local authorities from England are not involved in the EU lawmaking process through national channels of participation. Local authorities are only involved through the Committee of the Regions. These authorities can also lobby the EU institutions through liaison offices in Brussels and/or through their participation in national and/or European associations.
The French sub-national authorities are not involved in the preparation of Council meetings. They perform a role only where the Committee of Local Financing (which comprises representatives of the Regions and Departments) needs to be consulted on EU legislative proposals having technical and financial impact on the territorial communities (cf. Art. L 1211-4 of the General Code of Territorial Communities).
French territorial communities cannot represent their Member State in the Council. They are not represented in the French delegation to the Council or in the COREPER or in Council working groups. The lack of involvement of the French territorial communities may explain why alternative forms of participation have been sought persistently by French regional and local authorities; for example, liaison offices and other lobbying initiatives directed to the EU institutions appear to have flourished significantly in France. It must be taken into account that the French territorial authorities do not have substantial legislative power. Accordingly, not being endowed with the power to shape policy through legislation comparable to that of the national parliament, they are not as heavily constitutionally affected by European integration as the regions with legislative power in federal or regional systems.
The Åland Islands are full participants in the preparation of Council meetings due to their special status. If the government of Åland and the government of Finland are not able to agree on a common position, the government of Åland can ask the Finnish government to declare the position of Åland in the Council.
The Åland government may request to participate in the work of the Finnish delegation to the Council when the issue on the agenda falls within the competence of Åland. In such a case, the Åland government may also request to become part of the Finnish delegation to the Council. The Finnish government and the government of Åland are under the duty to negotiate a common position; however, if no agreement is reached, the Finnish government has no duty to uphold the position of Åland. The Finnish representative has to declare that position upon request from the Åland government. Cf. Section 59a of the Act on the Autonomy of Åland (1991/1144) and Section 26 of the Government of Finland Act 175/2003 of 28 February 2003.
The two Autonomous Regions (Azores and Madeira) are involved in the preparation of Council meetings. The Autonomous Regions have to be consulted by the national government if matters of regional interest are on the agenda of the Council. There is no legal obligation to uphold their position in the Council. Cf. Art. 227 No. 1 Lit. v Portuguese Constitution.
Azores and Madeira have the right to participate in the Portuguese delegations involved in EU decision-making processes when matters that concern them are on the agenda. There is no legal obligation for the Portuguese delegation to uphold the regional position in the Council. Cf. Art. 227 No. 1 Lit. x Portuguese Constitution.
Another at least symbolically important form of sub-national participation in EU lawmaking and policymaking is the CoR. This body comprises regional/local representatives with an electoral mandate or politically accountable to an elected assembly. It has to be consulted (even though the resulting opinion is not binding) in those fields of intervention that are more closely linked to the interests of the sub-national authorities.20 The CoR can be consulted also on any other topic if the political institutions consider it appropriate. It can submit opinions on its own initiative to the Council, the Commission and the European Parliament. In this way, the advisory activity of the CoR embraces potentially the whole spectrum of activity of the EU.21
D. The Implementation of EU Law and Policy by the Sub-national Authorities
1. Beyond the Doctrine of the Exclusive Responsibility of the Member States for the Fulfilment of EU Obligations: The Role of the Sub-national Authorities
A qualifying element of the EU multilevel system is that the Union shall respect the ‘national identity’ of the Member States, including regional/local self-government (cf. Art. 4(2) TEU). Accordingly, in conformity with the institutional and procedural autonomy principle, the Union cannot alter the allocation of responsibilities that is in place in a Member State.22 In a number of Member States, the sub-national authorities have primary responsibility for the implementation of EU law/policy and to ensure compliance with EU requirements in the areas falling within their remit. Exceptions are possible exclusively in particular circumstances. For example, in Ruling No. 126 of 24 April 1996, the Italian Constitutional Court stated that an alteration of the normal distribution of competences between the State and Regions may exceptionally be justified if an EU regulation is such to require uniform implementation across the entire national territory.23
In addition to being entitled to implement EU law in their fields of competence, the sub-national authorities have a duty to comply with obligations stemming from the EU. Regardless of whether an infringement of EU obligations is due to the behaviour of a national or of a sub-national authority, from an ‘orthodox’ EU law perspective a Member State is the only entity liable vis-à-vis the Union for the non-compliance.24 However, a holistic approach taking into account the national dimension, along with the European dimension, suggests that the constitutional laws of the Member States create a right and at the same time a duty of the sub-national authorities to comply with EU obligations.
This idea of a right/duty of the sub-national authorities to comply with/implement EU law emerges with particular strength and clarity in the context of the Austrian federation. The Austrian Constitutional Court created the concept of a ‘double bond’ (doppelte Bindung).25 The domestic legislator is ‘bound twice’; on the one hand, it has to comply with EU obligations and, on the other, with the norms of the national constitution, including those concerning the distribution of responsibilities between Federation and Länder. The consequence is that the Länder have the constitutional right and, at the same time, the duty to implement EU measures falling within their sphere of competence. Unlike the Italian Corte costituzionale, the Austrian Constitutional Court rejected the idea that a hypothetical requirement for uniform implementation of EU law could justify ‘implied powers’ of the Federation in a field in which there is no constitutional basis for federal intervention. The Austrian Court held that this type of intervention would require a constitutional amendment.26 This is quite a significant statement, considering that the Court had already accepted the principle of primacy of EU law, i.e., that single constitutional provisions should be set aside in the event of a conflict with EU law.27 This suggests that the protection of the constitutional role and status of the sub-national authorities in the Austrian context can provide an exception even to one of the constitutional cornerstones of the EU system.
The constitutional right and duty of the sub-national authorities to implement, and comply with, EU law, is not an Austrian peculiarity. This principle is explicitly (Austria,28 UK,29 Italy30) or implicitly (Germany,31 Belgium,32 Spain33) embedded also in the constitutional laws of other Member States.
In conclusion, from the perspective of EU law, the State is the only entity responsible for the implementation of EU law/policy, but there are constitutional constraints at national level preventing a central authority from encroaching arbitrarily on the sphere of competence of the sub-national authorities in relation to the implementation of EU law and policy.
2. State Liability and Financial Liability of the Sub-national Authorities in Case of Failure to Comply with Obligations Stemming from the EU
What happens if a sub-national authority does not comply with obligations stemming from the Treaties? In Konle and Haim, the ECJ recognised that State liability may be triggered by an action or a failure to act of a sub-state entity (a part of the State). In such circumstances, the federation or the central government should not necessarily make the reparation of the damage or the loss. This can be made by the responsible sub-state entity in accordance with domestic law.34 In this manner, the ECJ legitimised the national legislation imposing exclusively on sub-national authorities the responsibility for a ‘loss’ or ‘damage’ attributable to a component of the State.
In some Member States, there is a subsidiary financial liability of the sub-national authorities towards the State, which finds application in the event of a breach of EU obligations originating from the behaviour of a sub-state authority. Such arrangements aim to work as a deterrent against failures to implement, inaccurate implementation or any other breach of obligations deriving from EU membership. Germany is a good example of this approach. Any cost deriving from Germany’s violation of ‘supranational’ or ‘international’ obligations must be borne by the responsible Land or Länder in proportion to the respective quota of responsibility.35
Similar criteria find application also in other Member States. Austrian law lays down the obligation for the Länder and the local authorities to pay the costs that derive from judgments of the Court of Justice in relation to breaches of EU law.36 Any disputes on the attribution of the financial liability to the sub-state authorities are decided by the Constitutional Court (cf. Art. 137 Federal Constitutional Law). In a similar manner, in Spain the Tribunal Constitucional has held that when an Autonomous Community does not implement EU law correctly in an area within its responsibility, that Community shall comply with the findings of the Court of Justice and pay any fine.37 In the UK too, when a breach of EU obligations originates from the behaviour of one of the devolved authorities in Scotland, Northern Ireland or Wales, or of a local authority, the responsible entity may be required to pay the pecuniary sanction imposed on the UK.38 A comparable ‘right of redress’ through which the central government can recover any expenditure deriving from the non-fulfilment of EU obligations also exists in Italy,39 Belgium40 and the Netherlands.41
In summary, from a traditional orthodox EU perspective, only the State is responsible for a breach of EU obligations, but from an internal/constitutional perspective the sub-national authority that causes a financial liability of the State or the State liability may have to pay the fine or the ‘loss’ or ‘damage’. The subsidiary financial liability of the sub-national authorities is anchored to the national constitution (Germany, Spain) or is embedded in rules of constitutional significance, i.e., rules affecting the constitutional autonomy of the sub-national authorities (this is the case of all other analysed case studies). This confirms that the EU multilevel system is far more complicated and articulated than just a linear national–supranational relationship between Member States and the EU.42
3. Protecting Local and Regional Self-government from Surreptitious ‘Re-centralisation’: Constitutional Limitations and Constraints Surrounding the EU-Related Substitution Powers of the State
Another tool often provided by domestic law for ensuring compliance with EU obligations is the substitution power granted to the central government of the State. The practical meaning of such substitution is that the right to enact implementation measures passes exceptionally and temporarily to central authorities (whether executive or legislature). Typically, the non-compliant territorial authority (regional or local entity) retains the right to implement the obligation at a later stage; i.e., at a later stage, it can replace the measure issued by the central government with an own measure. In Italy, this phenomenon is called cedevolezza, i.e., pliability, of the substitute measure. The substitution should be seen as an extrema ratio, required to overcome the refusal or inability by a sub-state authority to comply with EU law. The substitution power is a good example of how, despite the institutional and procedural autonomy principle (cf. supra Sect. D.1), EU integration may produce an impact on the internal distribution of powers in the Member States.43
It is possible to draw a distinction between an ‘a priori’ and a ‘post facto’ substitution. A priori substitution takes place before the non-fulfilment of an EU obligation, in order to prevent it from occurring (for example, before the expiry of the term for transposing a directive). Post facto substitution takes place after the non-fulfilment of an EU obligation (for example, after the expiry of the term for transposing a directive or after a judgment of the Court of Justice certifying an infringement of EU law).
A priori substitution is problematic in the light of the ‘right’ of sub-state authorities to implement EU law in their own sphere of competence. The Spanish Constitutional Court dealt with this issue in a case concerning the European Agricultural Guidance and Guarantee Fund. The Court held that the central government has the right to issue substitute provisions implementing EU law in areas of regional competence, but this is allowed only after a non-fulfilment of an EU obligation has taken place. Were the substitution power exercisable regardless of a previous non-compliant behaviour, the entire constitutional distribution of powers between the central government and the Autonomous Communities would be irremediably undermined.44
This explains why, in the Member States where it is exceptionally allowed, a priori substitution is surrounded by safeguards in the interest of the sub-state authorities. In the UK, for example, whilst Parliament, in accordance with the principle of parliamentary sovereignty, theoretically retains the right to legislate on any issue, devolved or not, the devolved administrations and the UK government may agree that an EU obligation would be best implemented by uniform national measures adopted by the Westminster Parliament.45 Given that the substitution (not only a priori but also ex post facto) requires that Westminster and the devolved administrations seek an agreement, this mechanism takes into account the prerogatives of the devolved administrations.46 The constitutional standing of the devolved administrations in the EU multilevel context entails a partial constraint to the principle of parliamentary sovereignty, which is one of the cornerstones of the UK constitution.
In Italy, until recently, the national government was entitled to implement EU obligations on a yearly basis through the annual ‘Community law’ (legge comunitaria 47) and the related delegated legislation. This could happen in relation to any subject matter, including those within the legislative responsibility of the Regions. In practice, this system triggered a large-scale, annual, a priori substitution of the regional authorities by the State. However, the substitute laws emanated by the State were characterised for the previously mentioned ‘pliability’, cedevolezza. This implied that every time the State substituted its laws for those of the Regions, then, at a later stage, the Regions were entitled to replace those laws with their own. In this way, they were able to regain control over their sphere of competence.48 In 2012, this mechanism was replaced by an alternative approach. Under the new regime, the substitution powers of the State shall apply only in case of failure by a Region to comply with EU law (post facto substitution).49 In this way, the autonomy of the Regions and their primary role in implementing EU law and policy find stronger recognition than in the past, with the State intervening only in case of lack of implementation or non-compliance.< div class='tao-gold-member'>
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