Law making jurisdiction in the federal state and in federations of states

In 1991, the European Parliament proposed to incorporate a new typology of legal acts into the EEC-Treaty and - among other things - to replace the directive by a European framework law. With regard to the discussion about the future division of competences between the Community and the Member States, this proposal has gained new relevance. Certainly, the legal acts of European Union Law are not an explicit subject of the European reform agenda after the Nice Summit in December 2000. However, if it is planned to work out a catalogue which clearly defines the range of legislative competences within the field of European Union Law, it seems to be appropriate also to take into consideration techniques of connecting the different levels of competence, as we know them from the 'framework' or 'principle laws' of the European national federal systems. This paper investigates whether the German category of framework legislation, as it is regulated in Art. 75 in conjunction with Art. 72 para. 2 GG, could stand as a model for the reform of the directive in European Union Law. Altogether, the answer is rather a negative one. The German Federal Constitutional Court has interpreted the term "Rahmenvorschriften" as well as the so-called "Bedürfnisklausel" (Art. 72 para. 2 GG old version) in such a broad manner that no one would consider these clauses to be very effective instruments for protecting the margins of legal capacity of the Länder. But even after the constitutional amendment of 1994, the provisions dealing with framework legislation still cannot be regarded as a suitable model for the reform of legislation on the European level. The task of the new "Erforderlichkeitsklausel" (Art. 72 para. 2 GG new version) is - on the European level - already fulfilled by the principle of subsidiarity; a transfer of the German provision to the European legal system would therefore probably only have a negligible effect on the practice of Community legislation. From the perspective of the Länder, the so-called "Rückholklausel" - which also applies to framework legislation (Art. 75 para. 1 sentence 2 GG in conjunction with Art. 72 para. 3 GG) - is not a very useful provision either, as it is at the discretion of the Bund whether legislative competences are re-transfered to the Länder. A similar criticism applies to the new Art. 75 para. 2 GG which allows directly applicable and detailed rules within framework laws only as an exception. This provision is too vague and therefore