I started my posts about power of the European federation with the article about the international policy. But the section about powers of the federation should start with an article about common relationship between the federation and the member states or among the member states themselves.
First principle that has to be determined is the principle saying whether the federation or its member states should be preferred in the topic of state powers. The matter can be seen simple: the federation will be preferred because it is a formation superior to the member states. But such way of thought is mistaken because it would mean that the member states are formations whose power is determined by the federation (the member states would be then similar to mere administrative units). But the relation between the federation and the member states and their powers should not be seen on contrary in that way that the power of the member states will determine extent of the federation's power. The federal arrangement's idea should not be seen on contrary in that way that the power of the member states will determine the extent of the federation's power. The federal arrangement's idea should be what I have written in the post about the constitution's preamble: the people of Europe has decided to divide all state powers in two piles, one of them to entrust to the federation, the second to the member states (the European people will be who decides about state powers distribution). But all state powers cannot be enumerated in any way in whatever constitution. The world is changing constantly and new competencies get to states. For example, nobody anticipated in the beginning of the 19th century that a state will issue driving licences or in the beginning of the 20th century that it will issue laws about genetic research and cloning. Then, there are two possibilities: either all competencies of the states will be enumerated, the rest will belong to the federation, or all competencies of the federation will be enumerated and the rest will belong to the member states. It follows by logical consideration that the whole of non-enumerated competencies is open and potentially unlimited – new competencies can join them without change of the constitution; the side whose competencies will be enumerated in the federal constitution will not be able to obtain new competencies without change of the constitution. If it is valid that a federation will arise in Europe for that reason that some competencies will be managed better by it than by the states on their own, the federation will be the one whose competencies will be less numerous and consequently enumerated in the constitution. Besides, balanced relationship between the federation and the member states has to be thought of – if competencies of the federation were not exactly enumerated, its power would grow uncontrolled at the expense of the member states which would be an opposite extreme than present intergovernmental European Union. A federation should be in Europe to complement the states and to guarantee to Europeans what the states alone cannot cope satisfactorily with, not to replace them. That is the reason why a provision must be in the European federal constitution preventing uncontrolled growth of the federation's power saying that all competencies which the constitution does not entrust explicitly to the federation belong to the member states. Any transfer of power from the member states to the federation will be possible then only by changing the federal constitution. The justifiability of this provision is proven in other federal constitutions (e. g. Swiss, German, Austrian, Belgian, Bosnian, of the USA and so on) where such provision is also present. I cannot not mention also another way here how to arrange the relationship between a federation and its member states – so called concurrent legislation. Its principle is that there are competencies which are common (shared) for both the federation and the member states and the states execute them until the federation uses its right to adopt legislation in this field. The concurrent legislation (known best from the German federal system) is not suitable for a European federation in my view because the competencies subjected to the concurrent legislation are in fact additional competencies for the federation that get hold of them sooner or later as the German example demonstrates. It is naturally possible that the federation will not use its rights to take over the concurrent competencies, it is however not probable. Also such arrangement can be considered in that the federation will issue laws about the concurrent competencies and the states will execute them. But it is less advantageous arrangement than managing the mentioned matters by the member states according to their own ideas. An interest in unity of the nation/people (Germ. “Volk”) living in the federation prevails safeguarding variety and independence of the member states in those federations which has such provision in their constitution. And Europe is not in the situation today (and in the near future too) that prefers a unified indivisible cultural people (“Volk”) to independence of individual states.
The states joined in the European federation will be different, in spite of that they must have equal position in the federation. It is necessary to ensure that the federation acts rather in favour of the whole federation and all states in the same way than of some states rather than others. It will not be certainly simple in the beginning to ensure that the federation’s bodies think of welfare of the union as a whole. However, it is necessary to ensure the unity of the federation. A federation is not an international association of states, an individual state cannot have special relationship to every other state. It is usual in present intergovernmental European Union that its states agree on some rule, but some states are found to not follow it every time because they exact an exception. I presume I won't be remote from truth if I write that winnings in a lottery are more likely than to find a rule in present EU that is valid for all associated states without an exception. But such chaos cannot rule in a European federation. The rule that is to ensure equality of the member state of the federation will serve also as the rule ensuring the federation’s unity. The wording of the rule will be simple – it should say that the constitution of the federation as well as its laws will be valid equally in the whole federation, in all member states.
The next provision which I can write about is very important in my opinion, I am convinced that it cannot be absent in the European federal constitution; on the other hand, it is a provision which can seem hard to many people. The federation should have a right to stand up against everything that could endanger unity of the federation or could ruin democratic arrangement in its member states. The first part proceeds from that what I have written in the post about the constitution's preamble – the union will be permanent, that means if a state enter the federation, it cannot leave it. But it is not sufficient to write it in the constitution's preamble, somebody has to be charged with supervision over this provision; and it can be hardly someone else than the federation itself. The USA civil war in 1861-65 can cross various people's minds. This war was waged for preserving the federation, the same is the case of the Swiss civil war of 1847. I do not want a war in Europe naturally, the federation has to strive to maintain federation's unity otherwise; any war would be an indication of a deep crisis in Europe, the power of the federation to maintain its unity should not be realized in such drastic way. Apart from that the federation should watch over democratic arrangement of its states. The constitution of the United States of America knows a similar provision saying that the union will guarantee a republican form of government to its state; similarly also the Swiss constitution has a provision that the federation “protects the constitutional order” of its states, it guarantees also the states' constitutions; according to the German federal constitution the state order in the member states must conform to the republican, democratic and social principles and the rule of law. Also the Treaty of Lisbon, the treaty regulating existence of the EU, knows a seed of this rule (article 7 about breach of common values by a member state); this principle was used in practice against Austria in 2000 already (though for doubtful reason and with doubtful outcome). The defence of federation's unity will be novelty of federal arrangement of Europe but defence of democracy is not anything what already present EU does not know.
Federation on one side and member states on other side are two separate levels of managing public matters; each of them will have its own spheres of activity done by the federal constitution which the other side will not interfere in. However competence of the federation and of the member states will not be able to be divided strictly, they will be dependent on each other in some situations (the federation want from the states apprehension of a man that has offended against a federal law, a state want subsidy in its culture from the federation; and so on). It follows from it that the federation and the member states should help to each other, also in spheres belonging to only one side of them. It will be advantageous for both sides as existence of such provisions in existing federal constitutions (e. g. German or Swiss) shows.
Another provision which I want write about concerns not directly federation's competencies, it is however useful for coexistence of states in federation. It is about validity of official (public) acts made in a member state outside its borders. Citizens of individual states meet each other in a federation more then in mutually internationally independent states and so also validity of various administrative decisions of individual states gets in contact. What do I have in mind? If somebody obtains a driving licence in one state, but drives a vehicle in another state, he/she can be acknowledged as a valid holder of the driving licence in the other state, but also he/she can be taken for a driver without valid licence because it was not issued to him/her in the other state according to its laws. Or, if somebody was convinced in one state and flied to another, he/she can be extradited in the first state again or can be regarded as innocent in the other state because he/she was not sentenced by the other state's bodies and according to its laws. These and similar cases (degree certificates and certificates of work qualification are important and painful case today) have been arranged by international treaties today. In case of relations among federation members is solution of these matters not suitable which also the constitutions of the USA demonstrate (I did not find a similar provision in any European constitution unless provisions about mutual assistance of states and states and federation have the same sense but in spite of that I regard it as suitable). The mutual recognition of public acts of each other will be complicated matter without a doubt, so I admit a part of the federation in this affair but only in function of mediation, without prescriptive power.
There is also a provision in many federal constitutions saying that acts of the federation take precedence over acts of the states or in other words that federal law has superiority above state law. But I do not regard it necessary for the European federal constitution because it is automatic that no competence can be executed by states and arranged by their law if the federal constitution gave power over the respective matter solely to the federation.
First principle that has to be determined is the principle saying whether the federation or its member states should be preferred in the topic of state powers. The matter can be seen simple: the federation will be preferred because it is a formation superior to the member states. But such way of thought is mistaken because it would mean that the member states are formations whose power is determined by the federation (the member states would be then similar to mere administrative units). But the relation between the federation and the member states and their powers should not be seen on contrary in that way that the power of the member states will determine extent of the federation's power. The federal arrangement's idea should not be seen on contrary in that way that the power of the member states will determine the extent of the federation's power. The federal arrangement's idea should be what I have written in the post about the constitution's preamble: the people of Europe has decided to divide all state powers in two piles, one of them to entrust to the federation, the second to the member states (the European people will be who decides about state powers distribution). But all state powers cannot be enumerated in any way in whatever constitution. The world is changing constantly and new competencies get to states. For example, nobody anticipated in the beginning of the 19th century that a state will issue driving licences or in the beginning of the 20th century that it will issue laws about genetic research and cloning. Then, there are two possibilities: either all competencies of the states will be enumerated, the rest will belong to the federation, or all competencies of the federation will be enumerated and the rest will belong to the member states. It follows by logical consideration that the whole of non-enumerated competencies is open and potentially unlimited – new competencies can join them without change of the constitution; the side whose competencies will be enumerated in the federal constitution will not be able to obtain new competencies without change of the constitution. If it is valid that a federation will arise in Europe for that reason that some competencies will be managed better by it than by the states on their own, the federation will be the one whose competencies will be less numerous and consequently enumerated in the constitution. Besides, balanced relationship between the federation and the member states has to be thought of – if competencies of the federation were not exactly enumerated, its power would grow uncontrolled at the expense of the member states which would be an opposite extreme than present intergovernmental European Union. A federation should be in Europe to complement the states and to guarantee to Europeans what the states alone cannot cope satisfactorily with, not to replace them. That is the reason why a provision must be in the European federal constitution preventing uncontrolled growth of the federation's power saying that all competencies which the constitution does not entrust explicitly to the federation belong to the member states. Any transfer of power from the member states to the federation will be possible then only by changing the federal constitution. The justifiability of this provision is proven in other federal constitutions (e. g. Swiss, German, Austrian, Belgian, Bosnian, of the USA and so on) where such provision is also present. I cannot not mention also another way here how to arrange the relationship between a federation and its member states – so called concurrent legislation. Its principle is that there are competencies which are common (shared) for both the federation and the member states and the states execute them until the federation uses its right to adopt legislation in this field. The concurrent legislation (known best from the German federal system) is not suitable for a European federation in my view because the competencies subjected to the concurrent legislation are in fact additional competencies for the federation that get hold of them sooner or later as the German example demonstrates. It is naturally possible that the federation will not use its rights to take over the concurrent competencies, it is however not probable. Also such arrangement can be considered in that the federation will issue laws about the concurrent competencies and the states will execute them. But it is less advantageous arrangement than managing the mentioned matters by the member states according to their own ideas. An interest in unity of the nation/people (Germ. “Volk”) living in the federation prevails safeguarding variety and independence of the member states in those federations which has such provision in their constitution. And Europe is not in the situation today (and in the near future too) that prefers a unified indivisible cultural people (“Volk”) to independence of individual states.
The states joined in the European federation will be different, in spite of that they must have equal position in the federation. It is necessary to ensure that the federation acts rather in favour of the whole federation and all states in the same way than of some states rather than others. It will not be certainly simple in the beginning to ensure that the federation’s bodies think of welfare of the union as a whole. However, it is necessary to ensure the unity of the federation. A federation is not an international association of states, an individual state cannot have special relationship to every other state. It is usual in present intergovernmental European Union that its states agree on some rule, but some states are found to not follow it every time because they exact an exception. I presume I won't be remote from truth if I write that winnings in a lottery are more likely than to find a rule in present EU that is valid for all associated states without an exception. But such chaos cannot rule in a European federation. The rule that is to ensure equality of the member state of the federation will serve also as the rule ensuring the federation’s unity. The wording of the rule will be simple – it should say that the constitution of the federation as well as its laws will be valid equally in the whole federation, in all member states.
The next provision which I can write about is very important in my opinion, I am convinced that it cannot be absent in the European federal constitution; on the other hand, it is a provision which can seem hard to many people. The federation should have a right to stand up against everything that could endanger unity of the federation or could ruin democratic arrangement in its member states. The first part proceeds from that what I have written in the post about the constitution's preamble – the union will be permanent, that means if a state enter the federation, it cannot leave it. But it is not sufficient to write it in the constitution's preamble, somebody has to be charged with supervision over this provision; and it can be hardly someone else than the federation itself. The USA civil war in 1861-65 can cross various people's minds. This war was waged for preserving the federation, the same is the case of the Swiss civil war of 1847. I do not want a war in Europe naturally, the federation has to strive to maintain federation's unity otherwise; any war would be an indication of a deep crisis in Europe, the power of the federation to maintain its unity should not be realized in such drastic way. Apart from that the federation should watch over democratic arrangement of its states. The constitution of the United States of America knows a similar provision saying that the union will guarantee a republican form of government to its state; similarly also the Swiss constitution has a provision that the federation “protects the constitutional order” of its states, it guarantees also the states' constitutions; according to the German federal constitution the state order in the member states must conform to the republican, democratic and social principles and the rule of law. Also the Treaty of Lisbon, the treaty regulating existence of the EU, knows a seed of this rule (article 7 about breach of common values by a member state); this principle was used in practice against Austria in 2000 already (though for doubtful reason and with doubtful outcome). The defence of federation's unity will be novelty of federal arrangement of Europe but defence of democracy is not anything what already present EU does not know.
Federation on one side and member states on other side are two separate levels of managing public matters; each of them will have its own spheres of activity done by the federal constitution which the other side will not interfere in. However competence of the federation and of the member states will not be able to be divided strictly, they will be dependent on each other in some situations (the federation want from the states apprehension of a man that has offended against a federal law, a state want subsidy in its culture from the federation; and so on). It follows from it that the federation and the member states should help to each other, also in spheres belonging to only one side of them. It will be advantageous for both sides as existence of such provisions in existing federal constitutions (e. g. German or Swiss) shows.
Another provision which I want write about concerns not directly federation's competencies, it is however useful for coexistence of states in federation. It is about validity of official (public) acts made in a member state outside its borders. Citizens of individual states meet each other in a federation more then in mutually internationally independent states and so also validity of various administrative decisions of individual states gets in contact. What do I have in mind? If somebody obtains a driving licence in one state, but drives a vehicle in another state, he/she can be acknowledged as a valid holder of the driving licence in the other state, but also he/she can be taken for a driver without valid licence because it was not issued to him/her in the other state according to its laws. Or, if somebody was convinced in one state and flied to another, he/she can be extradited in the first state again or can be regarded as innocent in the other state because he/she was not sentenced by the other state's bodies and according to its laws. These and similar cases (degree certificates and certificates of work qualification are important and painful case today) have been arranged by international treaties today. In case of relations among federation members is solution of these matters not suitable which also the constitutions of the USA demonstrate (I did not find a similar provision in any European constitution unless provisions about mutual assistance of states and states and federation have the same sense but in spite of that I regard it as suitable). The mutual recognition of public acts of each other will be complicated matter without a doubt, so I admit a part of the federation in this affair but only in function of mediation, without prescriptive power.
There is also a provision in many federal constitutions saying that acts of the federation take precedence over acts of the states or in other words that federal law has superiority above state law. But I do not regard it necessary for the European federal constitution because it is automatic that no competence can be executed by states and arranged by their law if the federal constitution gave power over the respective matter solely to the federation.
