Constitutional Law on the Division of Power

## Overview

The Constitutional Law on the Division of Power was passed in the Federal Assembly in October 2035 [22.6.2020] and confirmed by the Federal President in April 2036 [30.6.2020], in accordance with Article 41 of the Federal Constitution. The law sets out the areas in which the Federal Government has the authority to supersede that of the Member States.

## Division of Powers

The constitution, and by extension this law, sets out Centralised powers and Decentralised Powers. Centralised powers are those areas of governance, in which Federal legislation supersedes that of the Member States. Decentralised powers are those areas of governance, in which legislation by the Member States supersedes Federal legislation.

### Centralised Powers

Article 3 of the Constitutional Law on the Division of Power sets out the following areas of governance as Centralised.

* The establishment of federal administrations, federal public establishments or other federal institutions, bodies or structures;
* The monetary policy of the Federation;
* Measures applicable to the external borders of the Federation, the processing of asylum or immigration requests, and the statutes of refugees and migrants;
* The establishment of federal crimes and misdemeanours, the sentences applicable to these, and the functioning of the federal judicial system, as well as the cooperation between the judicial systems of the Member States;
* The functioning of federal police and law enforcement administrations, as well as the cooperation between the police and law enforcement administrations of the Member States;
* The conduct of the Federation’s foreign policy, including but not limited to matters of foreign aid, development aid and cooperation, economic, financial and technical cooperation, humanitarian aid, or sanctions;
* Any measure necessary for the implementation of international Treaties, Conventions and Agreements in which the Federation has entered with a third party;
* The preservation, protection and improvement of the quality of the environment, as well as the prudent and rational utilisation of natural resources;
* The creation, maintenance, and interconnectivity of strategic infrastructures and services in the areas of transport, telecommunications, and energy;
* Measures necessary to ensure the functioning of the energy market, the Federation’s security of supply, the promotion of energy efficiency and energy savings, and the development of new and renewable forms of energy;
* Rules applicable to the transportation of persons and goods in the Federation;
* Rules applicable to communications and telecommunications in the Federation
* Measures necessary to protect and improve public health, prevent physical and mental illness and diseases, and obviate sources of danger to physical and mental health;
* Measures necessary to ensure reactivity, coordination, mitigation and reconstruction in the face of natural or man-made disasters;
* The protection of the health, safety and economic interests of consumers, as well as the promotion of their right to information, education and to organise themselves in order to safeguard their interests;
* Measures necessary to guarantee good living conditions and affordable, safe, and salubrious housing;
* The development of employment in the Federation;
* The regulation of workplace relationships and working conditions, work-life balance, holidays and leaves, and other rights of the workers;
* The regulation of dialogue between management and labour, workplace democracy, and collective bargaining;
* The establishment of a federal minimum wage, a federal unemployment insurance, a federal health insurance, a federal pension system, or any other form of social protection;
* The establishment and functioning of the internal market in all aspects of the economy;
* Any measure regulating trade in the Federation;
* The custom duties on imports and exports, as well as all other charges having equivalent effect;
* Rules regulating the movement of persons, services and capital in the Federation;
* Rules governing material or intellectual property, including nationalisations and privatisations;
* Rules governing the regulation of banking activities in the Federation;
* The determination and conduct of a federal industrial policy;
* The strengthening of the Federation’s economic, social and territorial cohesion;
* The determination and conduct of a federal space policy;
* The determination and conduct of an agricultural and fisheries policy;
* The establishment, development, operation, regulation and harmonisation of primary, secondary, and higher education, as well as vocational training;
* The development of the European dimension in education, the mobility of students, and life-long education and training;
* The establishment of cultural programs at the federal level, the conservation and safeguarding of European heritage, and rules governing access to culture and creation;
* The strengthening of the Federation’s capacity in research and development;
* Any measure necessary to combat discrimination, inequalities, or exclusion, to support people with disabilities, and to ensure individual opportunity;
* Any measure necessary to the sharing of information and experience, and the dissemination of knowledge and know-how in the Federation;
* Any measure necessary to uphold the rights granted under the Constitution of the Federation.

Article 4 of the Federal Constitution additionally sets the following as permanently centralised powers.

* Matters for which this Constitution requires the adoption of a federal law;
* Nationality, and the status and capacity of persons;
* The general organisation of federal defence, and the fundamental guarantees granted to federal civil servants and members and retirees of the federal armed forces.

### Decentralised Powers

Article 4 of the Constitutional Law on the Division of Power sets out the following areas of governance as Decentralised.

* Any matter not listed in Article 3 as a Centralised power shall be a Decentralised power.

Article 41 of the Federal Constitution additionally states the following.

* On matters which, under said constitutional law, are neither Centralised or Decentralised powers, legislation by the Member States shall supersede federal legislation.

### Supporting Capacity

According to Article 3, §(1) of the Constitutional Law on the Division of Power, "Supporting capacity" refers to the ability for federal legislation and federal programs to complement the actions of the Member States in matters of Decentralised powers. Article 5 then sets out the areas in which the Federal Government may exercise this supporting capacity.

* The Federation Parliament shall be able to adopt any measure ensuring cooperation between the Member States and between their administrations in matters of decentralised powers.
* The Federal Parliament shall be able to adopt any measure designed to ensure harmonisation between the policies of the various Member States, where these policies have an adverse effect on the effective implementation of federal legislation.
* The Federal Parliament shall be able to adopt any measure designed to support the implementation of legislation, regulations or programs adopted by the Member States.
* Any provision adopted pursuant to this article shall supersede legislation adopted by the Member States, in the extent to which it is necessary in regard of the requirements laid out in this article.

## Power Transfer

Article 41 of the Federal constitution restricts the way in which the list of either Centralised or Decentralised powers may be altered.

* The constitutional law provided for under this article may be amended at the request of the Federal Assembly, the Council of the Federation, the Prime Minister, or any legislative body or head of State or Government under the Constitution of a Member State of the Federal Republic. This request must take the form of an amendment to said constitutional law, and be immediately submitted to the relevant house of the Federal Parliament under this article.
* Amendment to said constitutional law which would add to the list of Centralised powers shall be submitted to, and receive the consent of two-thirds of the delegates of the Council of the Federation.
* Amendments to said constitutional law which would add to the list of Decentralised powers shall be submitted to, and receive the consent of two-thirds of the representatives of the Federal Assembly.

Additionally, Article 6 of the Constitutional Law on the Division of Power sets out the conditions that must be met in order to change the list of either Centralised or Decentralised powers.

* Amendments to this Constitutional law must receive the consent of two thirds of the members of the Council of the Federation when seeking to alter the list of matters under Article 3 by adding a matter to the list of Centralised powers.
* Amendments to this Constitutional law must receive the consent of two thirds of the members of the Federal Assembly when seeking to alter the list of matters under Article 3 by removing a matter from the list of Centralised powers.

## Criticism

Many right-wing politicians have criticised the expansiveness of the bill, considering the list of Centralised powers to be to large, with representative Van Lier (ECI) specifically calling out it's "exceeding power-grabbing". It has also been pointed out that a justification hasn't been provided as to why each point of the Centralised powers is present on the list. Rep. Van Lier (ECI) has additionally criticised Article 5, specifically stating that "What Article 5 of this bill is trying to achieve, with the conclusion of its effort in the very last paragraph, is probably a violation of the Constitution text, and very certainly a betrayal of its Spirit."

Rep. Rémi Carton (PPS/G) has rebuted these claims, stating that "A Federal power-grab would have been making every single power a Decentralised one, and making sure Article 4 simply stated 'No matter shall be a Decentralised power, except maybe rules regulating a citizen's right to walk their pets.' We didn't do that." Regarding Article 5, Rep. Carton has said that "I understand he [Rep. Van Lier] doesn't like the idea of the Federal government helping the Member States implement **their own policies**. After all, his party is known for their profound belief that every one's better on their own. But I know a large majority here and in the FRE doesn't share that view. In fact, our Constitution doesn't share that view. It was established to ensure cooperation, equal rights, justice, and effective government. He doesn't like these, that's his prerogative."

## Related Articles

* Constitution of the Federal Republic of Europe