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Hierarchy and Interdependence in Multi-level Structures

Foreign and European Relations of

Belgian, German and Austrian Federated Entities

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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

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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.

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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

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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

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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

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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

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Part 1

Introduction

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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

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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).

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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

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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.

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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).

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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

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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

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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

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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.

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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.

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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

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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.

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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).

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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.

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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.

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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

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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.

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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

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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.

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Part 2

Theoretical Framework and

Conceptual Tools

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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

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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.

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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

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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

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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

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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).

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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.

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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).

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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

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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

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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).

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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

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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

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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

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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

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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

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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

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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,

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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.

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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.

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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

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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

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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

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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.

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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).

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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

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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).

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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

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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

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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).

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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

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interdependent rather than hierarchical relationships among the levels on the domestic

arena.

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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

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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

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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.

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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

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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).

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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.).

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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

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(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

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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.

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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.

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Part 3

Belgium, Germany and Austria

Three Faces of the Federal Principle

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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.

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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,

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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.

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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).

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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.

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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.

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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.

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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.

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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.

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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).

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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

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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).

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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.

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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).

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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.

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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.

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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.

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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.

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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).

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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.

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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.

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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.

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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).

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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.

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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

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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.

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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

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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.

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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).

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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

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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,

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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

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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.

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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.

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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,

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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).

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Part 4

Comparative Analysis of

Belgium, Germany and Austria

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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.

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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

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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

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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).

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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

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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.

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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).

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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.

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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.

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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).

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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

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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)

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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.

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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

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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-

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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.

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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

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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). .

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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.

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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.

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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)

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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.

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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.

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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

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(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

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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-

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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).

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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).

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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

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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).

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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

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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.

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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

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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).

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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).

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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).

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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).

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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).

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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.

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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).

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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

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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.

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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).

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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).

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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.

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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.

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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.

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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.

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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

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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

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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

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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.

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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.

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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).

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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).

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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.

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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).

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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

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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.

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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.

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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.

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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.

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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.

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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.

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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).

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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.

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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.

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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).

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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).

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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

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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

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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

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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

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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

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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.

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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

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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

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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.

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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

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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).

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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.

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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

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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

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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).

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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

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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.

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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.

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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.

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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.

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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

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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).

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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.

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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.

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(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).

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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

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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).

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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

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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.

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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

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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.

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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.

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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

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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).

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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.

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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.

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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

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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

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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.

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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.

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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.

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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

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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.

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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.

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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.

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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

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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.

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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.

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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.

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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

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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).

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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

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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.

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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.

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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

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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.

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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).

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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.

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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

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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.

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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

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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).

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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.

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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.

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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.

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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.

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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

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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.

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Part 5

Conclusions

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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

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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

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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

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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

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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.

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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

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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

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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.

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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.

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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).

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