The ‘Law-Regulation Distinction’ and European Integration: Reflections on the German Jurisprudence from the 1960s to the Present
Jus Politicum, Vol. 4, 2010
21 Pages Posted: 26 Mar 2012 Last revised: 28 Mar 2012
Date Written: June 3, 2010
Abstract
This article builds on my contribution to the conference "Art de la législation et typologie des régimes constitutionnels" at the Institut Michel Villey, Université Panthéon-Assas (Paris) in October 2009. In this piece, I examine the jurisprudence of the German Federal Constitutional Court (GFCC) on European integration since the 1960s, with particular attention given to the Maastricht and Lisbon decisions of 1993 and 2009. The article compares elements of these decisions with the so-called "law-regulation distinction" contained in the French constitution of 1958. I argue that this distinction, as interpreted by the French high courts, has served a purpose similar to a range of provisions in the German Basic Law of 1949 as interpreted by the GFCC: the reconciliation of administrative governance and constitutional democracy. (I call this the "postwar constitutional settlement of administrative governance"). A similar goal has animated the German jurisprudence on the limits on the delegation of normative power to the supranational level. The GFCC, without stating it explicitly, has relied on a conceptual framework drawn ultimately from the postwar settlement. The normative core of Court’s reasoning is a distinction between the proper realm of “law” belonging to the constitutional legislature and that of “regulation” belonging to the executive and administrative spheres, whether within or beyond the state. In important respects, the German jurisprudence has intuitively understood European integration as a supranational extension of the more general diffusion and fragmentation of normative power that characterizes modern administrative governance.
Keywords: European integration, German Federal Constitutional Court, Maastricht Decision, Lisbon Decision, the law-regulation distinction, separation of powers, delegation
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