Regulatory federalism: The European Union in comparative perspective

摘要

This study examines the development of social regulation in the EU, focusing in particular on the development of the EU's regulatory enforcement capacity. I argue that the development of social regulation in the EU can best be understood by viewing the EU through the lens of comparative federalism. I develop a theory of regulatory federalism to explain how the basic institutional structures of federal systems mediate struggles over regulation and shape the development of regulatory policy enforcement.;The theory of regulatory federalism makes two basic claims. First, the vertical division of authority between central and state governments generates a similar politics of competence in all federal systems. As the two primary levels of government interact strategically, the division of regulatory competences moves through a similar series of stages and reaches a similar outcome: central governments set most standards and state governments control most implementation. Second, differences in the horizontal concentration of power within the central government in federal systems explain differences in the politics of discretion : the degree of discretion granted to states in their role as agents of central governments. Where federal power is concentrated, as in Westminster-type federal systems, federal courts play little role in the regulatory process and state governments enjoy wide discretion in implementing federal laws. Where power is divided, as in separation of powers federal systems, the federal judiciary plays a powerful role in regulation. Court involvement, in turn, encourages an adversarial, litigious approach to enforcement that reduces the discretion of states in implementing federal regulations.;I assess the theory with case studies of the development of environmental regulation in the EU and four federal states: the US, the Federal Republic of Germany, Canada and Australia. In order to demonstrate the generalizability of the findings to other areas of social regulation, I also examine the development of food and drug safety regulation and consumer protection regulation in the EU. The case studies provide strong support for the theory and most interestingly suggest that, as a separation of powers federal system, the EU is moving down the US path toward the use of litigation as a means to enforce its detailed, non-discretionary legislation.