Loyalty Towards Federation
Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.
1. The principle of federal good faith, also referred to as federal comity, federal loyalty, federal trust, or federal fidelity, is a guiding principle that intervenes in inter-level relations in federal systems (federalism). The principle, which to date has received little scholarly attention, let alone from a comparative perspective, echoes the spirit of loyalty and cooperation reigning between the various federated entities (component federal units) as well as towards the federal level itself. While arguably an inherent feature of most if not all contemporary federations, the principle has in some instances found explicit constitutional recognition, be it in the constitutional document itself or adjudicative decisions, in a number of jurisdictions.
2. The principle of federal loyalty has moreover found application in the supranational legal order of the European Union and in South Africa, which is not a federation. While some consider the European Union to present the characteristics of a federation (Schütze), this evolution indicates that the principle of federal good faith intervenes more widely in multi-level systems to ensure coordination and respect in the various constituent parts’ exercise of their respective autonomies. This survey of the principle will first introduce the principle in general and subsequently move on to illustrate its operation in various legal orders. A third section will offer some insights into the special case of the European Union before a brief conclusion is offered.
B. The Principle of Federal Comity
3. The principle of federal comity is intended to further friendly relations among the federal state and its constituent parts through the promotion of the values of consideration and cooperation in their mutual relations (for the use of the term in international law see comity). The obligation inherent to the principle of federal good faith is the obligation of loyalty of one part to other parts and the whole as well as of the whole to its constituent parts. Such ‘federal solidarity’ however finds different expressions across jurisdictions. No single principle of federal comity can be identified. In particular the question of which concrete legal rights and obligations flow from the principle of federal good faith, if any, triggers different answers depending on the specific context. As a general matter, the principle rarely creates any concrete rights and obligations, it rather intervenes as a soft subsidiarity principle guiding inter-level relations in federal orders (and beyond). The lack of any thick conceptual core does not however weaken the principle’s centrality as a code of good conduct between actors in a multi-level system.
4. Some consider that the principle of federal comity should be distinguished from the principle of ‘federal trust’ according to which confidence is assumed to exist ‘between the parties of a federal partnership, in other words, reliance on the integrity of one another and an overall commitment to the maintenance of the partnership’ (Elk and Gagnon 94). Federal trust has been said to diverge from the principle of federal comity (Bundestreue in German) which to the contrary suggests an ‘overarching allegiance to the federation and a common purpose between the constituent parts’ (Elk and Gagnon 94). This might also explain why it has emerged in the context of the European Union. Federal trust is not about such common positions and consensus but rather assumes ‘the absence of a clear-cut consensus over issues, yet this coexists with a feeling of confidence between federal partners that they will work together in good faith’ (Elk and Gagnon 94).
5. Kaiser has interpreted Bundestreue as being ‘indispensable for the continuation of a Federation’ (Kaiser 543). This is so because the principle stands as a reminder of the union the various constituent parts have concluded while maintaining separate spheres of autonomy. Federal comity safeguards that in the independent exercise of these specific autonomies, sight is not lost of the interests of the union itself as well as of the other constituent parts. Loyalty towards the federation is thus closely connected to the very reason why federations emerge and why they continue to last. It has indeed been put forward that the idea of foedus itself ‘betokens not merely a solemn pledge between two or more people to keep faith with each other, to honour an agreement; it involves the idea of cooperation, reciprocity, mutuality’ (Davis 3). Federal good faith stands as a symbol of such cooperation, reciprocity and mutuality. The subsequent section illustrates the practical expressions of this principle in a number of jurisdictions.
C. Expressions of the Principle of Federal Comity across Jurisdictions
6. This section provides an overview of how the principle of federal good faith has found expression across various legal orders. It will describe the various principles in place and seeks to draw out their respective similarities and differences. It will be seen that the principle of loyalty towards the federation can be found in a number of federal systems, but that it takes on various shapes in each of them. The centrality of good faith as a principle guiding the relations between various actors in multi-level systems, both those of a federal nature and beyond will be confirmed. It should be noted that the principle is often, yet as the example of Ethiopia shows not always, connected to cooperative federalism (types of federalism). Yet, it will also be seen that despite this centrality federal good faith generally does not take on the form of a firm legal principle with easy-to-identify rights and obligations. Germany is the arguable exception to this rule.
7. In Germany, the relationship between the 16 Länder and the federal level (Bund) is subject to the general principle of Bundestreue or bundesfreundliches Verhalten (Bayer). It is worth noting that while federal good faith does not find explicit expression in the 1949 Basic Law, it has been found to amount to a constitutional principle by the German Federal Constitutional Court. Smend is considered the intellectual father of this unwritten principle of German constitutional law (Smend, ‘Ungeschriebenes Verfassungsrecht im monarchischen Bundesstaat’ 247). While not all aspects of the principle can be covered in this instance it is worth noting that manifold precise legal expressions thereof can be traced in the case law of the Federal Constitutional Court of Germany (Bundesverfassungsgericht) (FCC). The FCC first relied on the notion of federal good faith in determining that the Länder cannot arbitrarily (without justification) withhold their constitutionally required consent to federal legislation, and are rather required to have regard to the interests of the other Länder (BVerfGE 1, 299 (1952) (Ger)). In German constitutional law, federal good faith moreover implies a prohibition for the Länder to rely on their concurring powers as soon as the federal level initiates the legislative procedure on the same matter (BVerfGE 34, 9 (29) (1972) (Ger)). Similarly, when legislation at the level of the Land is likely to have an impact beyond the borders of the subnational authority, Bundestreue requires the legislator in question to account for the interests of both the other Länder and the federal level (BVerfGE 4, 115 (140) (1954) (Ger)). The FCC has also held time and time again that the principle of federal good faith mandates mutual cooperation between the Länder and the Bund and the Länder (BVerfGE 1, 299 (315) (1952) (Ger)). Another expression of the principle is that the Länder’s obligation of federal loyalty requires them to identify mutually acceptable solutions in cases of disputes (BVerwGE 50, 137 (1976) (Ger)). It is worth noting that federal comity has taken on a new significance in the age of European integration as it now also guides the interaction between the Bund and the Länder when it comes to European affairs. The principle indeed entails that when the Bund intends to legislate, not only at national level but also through the EU, it must inform and consult the Länder (BVerfGE 12, 205 (1961) (Ger)) Despite the obvious importance of the principle of federal good faith it must be stressed that it is of a subsidiary nature in German constitutional law as it finds application in particular where there are ‘no other, more precise rules that determine the outcome of the dispute’ (De Baere and Roes ‘857). Nonetheless Germany is noteworthy for being a jurisdiction in which federal comity has been subject to concrete applications by the highest courts. This distinguishes it from most other federations.
8. The principle of federal comity, Bundestreue, has also found recognition in Europe’s two other German-speaking federations, Austria and Switzerland. Switzerland has formalized its commitment to federal comity. Article 44 of the 1999 Swiss Constitution enshrines the principle, stating that the federal level and the cantons, first, have to mutually support each other in the realization of their duties and cooperate, second, owe each other consideration and assistance, and third, must provide mutual support and settle disputes between cantons or between cantons and the federal level through negotiation and mediation where possible.
9. In Austria, federal good faith is not a principle expressly recognized by the constitutional document but it has nonetheless been invoked by federal courts. The Constitutional Court of Austria (Verfassungsgerichtshof) has recognized a principle of ‘consideration’ according to which federal and Land competence is to be interpreted asking whether the envisaged legislative action could infringe on the legislative competence of another actor. It has, for instance, invalidated a sub-national law limiting individuals’ right to enter forests on the basis that it didn’t sufficiently consider the principle of open forests as enshrined in federal law (Jagdrecht/Forstrecht).
10. Article 50(8) of the Constitution of Ethopia, 1994 (Eth) reads as follows: ‘[t]he respective powers of the Federal Government and the States is determined by this Constitution. Powers of the Federal Government shall be respected by the States and powers of the States shall be respected by the Federal Government’. This has been interpreted as illustrating the dual nature of Ethiopian federalism (Adimassu 29).
11. In Canada, the principle of federal good faith is not considered to be a formal principle per se. Some have however considered that the ruling in the Reference Re Secession of Quebec Case (Can) of 1998 implicitly enshrines such a principle (Basta-Fleiner and Gaudreault-Desbiens). In the reference, the Canadian Supreme Court indeed imposed a duty to negotiate in good faith should a clear majority in favour of independence of one of the constituent parts be expressed in order to safeguard the protection of the rights and interests of all those affected by the secession (Reference re Secession of Quebec (1998) (Can)). This obligation for the federal government to negotiate in good faith with one of its constituent entities even in a climate of divide and separation underlines the importance of federal loyalty and cooperation even in a federal system where there is no clear-cut legal principle of federal comity.
12. In Belgium, Article 143(1) of the Constitution of Belgium (Belg) explicitly refers to the principle of federal good faith. This provision states that in the exercise of their respective competences, the federal state, the communities and the regions as well as the commission of the communities are required to ‘act in the respect of federal loyalty in order to prevent conflicts of interests’. Uyttendaele however noted that this notion of federal loyalty is one of the vaguest principles of Belgian constitutional law (Uyttendaele 998). The principle, which has found little adjudicative application, for example requires that various levels resolve their disputes through extra-legal means, in this instance through the comité de concentration (Uyttendaele 990, 1000).
7. South Africa
13. It is worthy of special note that variations of the principle of federal good faith can be pinpointed beyond federations. On the one hand, countries such as South Africa, which are not federations, have been said to recognize federal comity (Konrad Adenauer Stiftung Johannesburg, ‘The Future of Provinces in South Africa’). On the other hand, international legal orders are also embracing similar concepts. This is the subject of an overview in the following section. The Constitution of the Republic of South Africa, Chapter 3 (S Afr) enshrines South Africa’s cooperative system of government that requires the different levels of government to act in a partnership, has been linked to the German constitutional notion of Bundestreue (Konrad Adenauer Stiftung Johannesburg 12). The South African Intergovernmental Relations Framework Act 2005 has given further expression to that principle in creating guidelines to ‘establish a framework for the national government, provincial governments and local governments to promote and facilitate intergovernmental relations; to provide for mechanisms and procedures to facilitate the settlement of intergovernmental disputes; and to provide for matters connected therewith’. The arguable presence of a principle of good faith in inter-level relations outside federal systems raises the question whether good faith is really specific to federal systems or simply a useful or even necessary feature in any multi-level system. The presence of this principle in the context of the European Union, as explained below, reinforces that interrogation. The South Africa example is moreover an interesting one as, just as the EU, it extends the application of good faith from two levels (state-federal level) to include also the level of municipal government. Before moving on to the analyses of federal good faith in the EU context, it should first be noted that obligations reminiscent of federal good faith can be identified in public international law.
8. United States of America
14. There is no explicit provision of federal comity in the US constitution. While adjudicative practice in the US has never provided a clear list of federal comity’s constituent parts it has time and time again been invoked by courts. The Supreme Court famously framed the obligations inherent in the Privileges and Immunities Clause of the Constitution as obligations of federal comity. In Austin v New Hampshire (US) it indeed referred to the Constitution of the United States of America, Art. IV (US) as the ‘comity clause’ of the Constitution, which establishes such comity among the states. It has however been stressed that although American courts ‘routinely describe duties that run from one state to another, or from the federal government to the states, as exercises in comity, they almost never rely on the term to describe or explain duties that run from the states to the federal government’ (Seinfeld 1309). Mutual recognition is moreover a central component of federal comity in the United States under the form of the Constitution of the United States of America Art. IV, Section 1 (US). According to the Full Faith and Credit Clause ‘[f]ull Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State’. This clause has in the past years been subject to significant attention at a time where marriage equality had been achieved in some but not all of the American states (Singer).
D. Federal Comity beyond National Constitutional Law
1. The European Union
15. Although not formally a federation, the principle of loyalty has made its way into the European Union’s legal order, where it plays a central role. The EU is not a federation in the classical sense for its absence of statehood. Indeed, as the Court of Justice of the European Union held in Opinion 2/13, while the EU is, ‘under international law, precluded by its very nature from being considered a State’, it has ‘a particularly sophisticated institutional structure and a full set of legal rules to ensure its operation’ (paras 156–8).
16. Some have, however, argued that the EU goes ‘well beyond the model of an international organization coordinating areas of State policy’, as it has ‘marked confederal features’ (Crawford 495) and others consider it to be plainly federal (Schütze). Federal good faith, labelled as ‘the principle of sincere cooperation’ in any case constitutes a key concept in this supranational legal order. The Treaty on European Union ((signed 7 February 1992, entered into force 1 November 1993)  OJ C191/1), Art. 4(3) (TEU) provides that
Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties. The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union. The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives.
17. This principle of sincere cooperation has, under changing formulations, formed part of each of the different supranational European Treaties. Its pivotal character is hard to deny as some consider it to be the most important general principle of EU law (Temple Lang 76). Parallels have been drawn between Article 4(3) TEU and the notion of Bundestreue (Constantinesco 101). It has for instance been suggested that the EU law principle of loyal cooperation is ‘in essence a specific incarnation of, and hence not conceptually different from, the international law principle that treaties are to be interpreted in good faith’ (De Baere and Roes 830). This does not however imply that the principle is different from the notion of federal good faith (ibid).
18. More specific iterations of the principle can also be found in the EU Treaties. Article 24(3) TEU for instance provides that Member States shall ‘support the Union’s external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity’ should also comply ‘with the Union’s action in this area’ (De Baere and Roes 830). De Baere and Roes further consider the principle to underpin a number of other provisions of EU law, such as Article 267 of the Treaty on the Functioning of the European Union (TFEU), which sets out a procedure for references for preliminary ruling from domestic courts to the European court (ibid 835). The duty of loyalty further underlies a number of other key European legal principles as it has been the ‘legal basis for a number of fundamental “constitutional” principles of [EU] law that are now so well established that nobody looks for their legal basis any longer’ (Temple Lang 76). Two key aspects are particularly notable about the presence of ‘federal’ good faith in the context of the EU. First, that, just as in the case of South Africa, the principle of sincere cooperation applies not exclusively between two levels, but it has been extended to also apply to subnational authorities in the Member States (Fratelli Costanzo). Second, the fact that the Union is not a federal state, confirming that the principle appears to be a useful constitutional mechanism not so much in proper federal States but rather in multilevel systems more widely. The final section reflects about this conclusion.
2. Public International Law
19. ‘Federal’ good faith can be pinpointed in legal orders beyond the state. Article 3 of the Statute of the Council of Europe for instance specifies that ‘[e]very member of the Council of Europe must ... collaborate sincerely and effectively in the realization of the aim of the Council as specified in Chapter I’. A similar obligation of sincere cooperation is also enshrined in the UN Charter, Articles 2(2) and (5) which read as follows:
2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfil in good faith the obligations assumed by them in accordance with the present Charter. …
5. All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.
20. These principles present analogies with the duty to fulfil treaty obligations in good faith and the notion of pacta sunt servanda. Article 26 of the Vienna Convention on the Law of Treaties provides that ‘[e]very Treaty in force is binding upon the parties to it and must be performed by them in good faith.’ In Exchange of Greek and Turkish Populations the Permanent Court of International Justice moreover stressed the ‘principle which is self-evident, according to which a State which has contracted valid international obligations is bound to make in its legislation such modifications as may be necessary to ensure the fulfilment of the obligations undertaken’. It is certainly true that the origins and contours of these public international law concepts diverge from concepts such as that of Bundestreue. Their commonalities should nonetheless not be dismissed out of hand and act as an indication that good faith is not so much a key feature of federal, but rather any kind of, multi-level and multi-actor systems.
21. The preceding analysis has thus made the point that the principle of federal good faith is a principle that can be found in a number of federations, probably in its most developed form under the notion of Bundestreue in German constitutional law. Nonetheless one cannot avoid the conclusion that federal good faith often lacks a thick conceptual core and that it is understood in different manners depending on the jurisdiction taken into account. Indeed, ‘we really cannot claim that a principle of federal loyalty applies in every federal system, nor that it is of a uniform or even comparable nature’ (Klammert 59). Yet, the essence of the principle, namely sincere cooperation and good faith between actors in a multi-level system, is in no way limited to polities that have embraced federalism per se. Indeed, as the examples of South Africa as well as of the Council of Europe and public international law more broadly illustrate, it fulfils a valuable role in any system in which different actors coexist.
22. This brief survey has sought to provide an overview of the principle of federal comity. While this principle has, unsurprisingly, been found to operate in a number of federal systems, it has also been pinpointed, maybe more surprisingly, to exist in states that are not of a federal nature as well as legal orders beyond the state, namely public international law and the EU’s supranational legal order.
23. With regard to federal states, the classical context in which federal comity operates, it has been seen that while being a core principle of these systems, it generally does not generate concrete rights and obligations. Germany (and arguably Austria) may be the clearest exception to that rule. In most systems, however, no new, independent, rights and obligations flow from federal good faith. It rather amounts to a guiding and interpretative concept that informs existing rights and obligations.
24. The principle of ‘federal’ good faith can however also be pinpointed beyond the concept of federal states, as illustrated on hand of public international law and the law of the European Union. It has moreover been seen that the concept plays out in states of a non-federal character such as South Africa. These findings indicate that rather than being a concept intimately connected to federalism as such, the notion of good faith is a characterizing and indeed necessary feature of multi-level systems in which actors have the capacity and competence to act independently yet also need to account for the coherence and success of other actors.
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