EU Directives and Multi-Level Governance – Can Lessons Be Drawn from Cooperative Federalism?

Abstract

In this contribution, an attempt will be made to draw lines between the concepts of (cooperative) federalism, multi-level governance (MLG) and the European directive as a multi-tiered instrument. Can directives be regarded as federal by nature? And if so, what normative conclusions might one draw therefrom in terms of their conceptual shape? Although the concept of federalism has the downside of being less inclusive than MLG (for example, non-state actors and civil society), the argument will be made that the ‘federal label’ is not the final destination, but rather a possible bridge or ‘missing link’ between the EU directive and its potential for MLG. Stronger guarantees for more political decision-taking on at least two levels of government could strengthen the directive's function as a ‘hub’ for a constitutionally more ‘adult’ MLG. These stronger guarantees could be forged through a more galvanized application of the principle of proportionality of which the EU directives would ideally be an embodiment. Achieving that will however not be an easy exercise, as one can learn from the experiences in Germany with the Rahmengesetz, an instrument designed to embody proportionality ‘German style’.