Federalism in Brazil and Germany: comparative study of the constitutional allocation of legislative and administrative competences

• Grant number: 13/03885-3
• Support type: Scholarships in Brazil - Doctorate (Direct)
• Effective date (Start): September 01, 2013
• Effective date (End): April 30, 2016
• Field of knowledge: Applied Social Sciences - Law - Public Law
• Principal researcher: Fernando Dias Menezes de Almeida
• Grantee: Mariana Augusta dos Santos Zago
• Home Institution: Faculdade de Direito (FD). Universidade de São Paulo (USP). São Paulo , SP, Brazil

Abstract

This project proposes a comparative analysis of the constitutional system of Brazilian and German division of powers, based on respectively Articles 21 to 25 and 30 of the Brazilian Constitution - "CF/88" and Articles 28, 70 to 72 and 75 of the German Basic Law - "GG" (and possibly Articles 84-87 and 91a), and also the most relevant constitutional jurisprudence in both countries. The study focuses on elucidating and systematizing those legal standard that guide central and local governments when they substantiate their constitutionally assigned powers. Hence, it shall be analyzed the rules and principles that governs the exercise of a exclusive or a concurrent competence of a constituent unity - such as the clause that limits scope of Unions jurisdiction to the establishment of general rules, according to Article 24, § 1 CF/88 and to Article 75 GG (revoked in 2006), or the rules about the concurrent jurisdiction of the states. It is also an aim of this project to explain and understand the formula that lead to a prevalence of an exclusive power of the Union over a private or concurrent jurisdiction of the States (it is important to observe that the STF adjudicated some of this kind of federative dispute over the years), as well as the so-called "collision rules", which the German aphorism Bundesrecht bricht Landesrecht (or federal law "breach" state law), shaped in Article 31 of the German Basic Law and Article 24, § 4 CF/88, is a famous example. This is a fruitful academic analysis, especially in regard to the considerations of specialized legal literature (see ALMEIDA, Fernanda Menezes de Dias. Competências na Constituição de 1988. São Paulo: Atlas, 2007, p. 76), according to which the Brazilian Constitution suffered at this point strong inspiration of the German Basic Law. In this sense, the study aims exploring the supposed influence of German Constitution on the Brazilian constitutional text, exposing the real similarities and differences between these two systems of allocation of competences. It aims also analyzing possible applicability of some German solutions for federal issues to the Brazilian reality, given this well-documented scenario of the German federal coordination vis-à-vis Brazilian incoordination.For that the project proposes a thesis divided into two parts. The first one shall be devoted to some important theoretical premises and a brief historical analysis of the federal phenomenon in Brazil and Germany; in this part it is intended to point out some of the premises which the research is based on and that are essential for a correct understanding of the results obtained in the end, and also to provide a brief historical and social background of federalism in Brazil and Germany, both required by the adoption of comparative method. In the second part it will be developed a comparative study between Brazilian and German federative allocation of powers, under a critical perspective. First it will be provided an overview of the comparison; afterwards, it is intended to deepen the analysis on some federal issues and litigation which are present in both federal structures considered. This research presents as differential the deepening in the comparative method and confrontation of concrete problems, replacing the typological method, which is prevalent in legal papers on this subject. It is important to advert that the typological method can lead undoubtedly to interesting results and generalizations - which may not be ignored by researchers of this complex and interdisciplinary subject -, but often does not explain sufficiently the object which it focuses on. (AU)

Academic Publications

(References retrieved automatically from State of São Paulo Research Institutions)

. Federalism in Brazil and Germany: comparative study of the constitutional allocation of legislative and executive competences. 2016. Doctoral Thesis - Universidade de São Paulo (USP). Faculdade de Direito (FD/SBD) São Paulo.