Föderalismus »hoch zwei«: Zur Rolle der deutschen Länder bei der Ausgestaltung der gemeinsamen Handelspolitik der EU

The article deals with the role the German federal States (Länder) play in the common commercial policy of the European Union taking particular account of the liberalisation of the cultural sector. This question arose when the Council of the EU authorized the Commission to open the negotiations for a free trade agreement, the Transatlantic Trade and Investment Partnership or TTIP, with the United States. The Länder, assembled in the Federal Council (Bundesrat), had explicitly asked the German Federal Government to work towards a broad exception for the culture and media sector in the Council, thus underlining their exclusive competence for cultural matters - but it only was due to the pressure of the French Government that audiovisual services were (preliminarily) excluded from the mandate of the Commission. The author contends that the Länder's claim is based on a false assumption but nevertheless correct. According to the Treaty of Lisbon, the common commercial policy, including the trade in cultural and audiovisual services, is in the exclusive competence of the EU without any exception. Consequently, a treaty providing for the liberalisation of the culture and media sector, must not be a mixed agreement necessitating ratifications by both the EU and its member states and, subsequently, the approval by each of the 16 Länder in the course of the so called Lindau procedure (Lindauer Verfahren). Instead, the possible influence of the Bundesrat is defined by Article 23 para. 5 of the Basic Law and depends on whether legislative powers of the Länder are affected by a possible liberalisation of cultural and audiovisual services. Whereas it is clear that external trade in general is a federal competence, this is far less so once possible effects of trade liberalisation are taken into account: precepts of the trading system, such as the principle of non-discrimination, can conflict with cultural policies. This is the case if cultural policies, for example by means of subsidies or quotas, privilege local or regional products and services and their suppliers. Notwithstanding some scattered federal competences in this context, possible trade liberalisation can affect the right of the Länder to regulate the cultural sector substantially. The allocation of competences between the Federation and the Länder on the German constitutional level has to be seen against the background of tendencies to »economise« cultural matters on the EU level. Neither the EU nor the Federation has the genuine competence to regulate the cultural sector. The Federation should, in the author's view, have taken this into account during the negotiations for the mandate of the Commission and is obliged to do so whenever concerned with TTIP in the future.
Handbuch des Luftverkehrsrechts