Borderless Market legislation practice in EU and USA: Competence of central authorities in the federal model

Abstract

Both the EU and the USA have a federated structure with some competencies and responsibilities resting at the central level, some resting with the state governments. Both systems subscribe to a constitutional principle of enumerated powers under which, in order for powers to belong properly to the federal level, they need to have been enumerated as such. The United States Constitution centralized the government with all due respect to a relationship between central government and the state level (amendment X of the U.S. Constitution2). In this study, the current American federal model will be compared to the model of governance in Europe which might be considered to be developing towards a federal system. This system essentially implies the supremacy of the (respective) constitution and, indeed, all the hallmarks of American federalism are included in the European Constitution. The Single Market encompasses the respect for EU basic legal principles, subsidiarity and proportionality (Article 5 TEU). However, the European Constitution remains problematic in the European Union. The 2004 attempt to pass the Constitution turned out to be a failure and slowed down further political integration. Constitutional issues will also be discussed from the judiciary point of view which is to be confronted with political aspects. The important question to be addressed here is the role of judicial control in the process of creating a coherent doctrinal framework. The question whether the legislative acts are immune from legislative review provided that matter falls within the Treaty competences conferred on the EU by the Member States, or in the U.S. Constitution respectively, will be examined.