Introduction to EU LawCourse E509Winter Quarter 2009
Professor Jane WinnAdjunct Professor Thomas Daemen
EU History – Why?
WWI, WWII and the desire for peaceSee, e.g., ECSC treaty discussion
The rising Soviet threatGlobal economic growth, development and competitivenessAnd, more recently, the US influence
That said, tremendous disagreement, then and now.
EU History – What (1)Given disagreement about “why,” difficult to understand “what” they intended to createTheoretical options (p. 10)
IntergovernmentalismSupranationalismFederalism
Practical realityNone of these concepts clearly definedLack of agreement about objectives and tactics
What do we know for certain? The treaties:Specifically address economic issuesTouch on social policyReference the potential need for integration
Conclusion still TBD
EU History – What (2)
Taxonomy: “Community” vs. “Union”
EU Public Policy Organizational Structure
Economic Union / Internal Market
1. TEU Titles II-IV
2. 4 freedoms (people, goods, services,
capital)3. Qualified majority
voting (generally)
Common Foreign and
Security Policy 1. TEU Title V2. Safeguard
common values and interests3. Unanimous
voting (generally)
Police and Judicial
Cooperation1. TEU Title VI2. General law enforcement
activities3. Unanimous
voting (generally)
Remember the three keys: voting, voting and voting…See e.g., data retention, EU constitution, etc. etc.
EU History – What (3)Case study: external relations (p. 20)
Once again, confusion and uncertaintyExternal relations role highly controversial Actual role spread across numerous treaties over 50 years
Conclusion TBD
EU History – Treaties (1)
Treaty of Paris (1951)French Foreign Minister Schuman proposal on 5/9/1950Established now expired European Coal and Steel Community (i.e., common market) for six founding members: Belgium, Germany, France, Italy, Luxembourg and the Netherlands
Photo credit: European Commission
EU History – Treaties (2)
Treaty of Rome (1957)Established European Economic Community (EEC)Expanded ECSC common market to other goods/services; eliminated certain customs duties; formed common policy alliance
Photo credit: European Commission
EU History – Treaties (3)
Single European Act (1986)Established mechanisms for completion of EU single market by 1993
Treaty on European Union (1992)Changed name from “EEC” to “EC”Expanded MS cooperation into community structures, creating political “pillar” system and effectively forming the EU
Photo credit: European Commission
EU History – Treaties (4)
Treaty of Amsterdam (1997)Amended and renumbered the EU and EC treatiesChanged articles on TEU
Treaty of Nice (2001)Reformed institutions to address administrative needs resulting from EU enlargement
Photo credit: European Commission
EU History – Treaties (5)Treaty Establishing a Constitution for Europe (2004+)
Replaced existing treaties with a single textCreated “European foreign minister”Streamlined d-making processesRatification proved problematic (e.g., FR and NL “no” votes)See pp. 15-16 agreements
Photo credit: European Commission
EU History – Treaties (6)Lisbon Reform Treaty (2007+)
Wide ranging amendmentsNote differences with constitutional treaty proposal
From “European Union Minister for Foreign Affairs”……to “High Representative of the Union for Foreign Affairs and Security Policy”
Updates legal instruments and processesRatification once again highly controversial
Irish voteCzech Republic/Klaus
Observations from ISSE conference
EU History – The UK DynamicWhy single out the UK?
Anglo-Saxon connectionUseful case study of EU growing tensions
1950s-1970EU v. EFTA (European Free Trade Association)Applications rejected
1970-1980Finally in……but political and economic tensions continue
1980+Uncertainty, uncertainty, uncertainty
EU Expansion – The Physical (2)See pp. 23-24 for country listings
Do not underestimate the impact of:East Germany2004/2007 expansions
Jargon, jargon, jargon Acquis communautaireEU/EC (earlier slide)European Free Trade Association (Iceland, Norway, Switzerland, Lichtenstein) European Economic Area (no Switzerland)
EU Expansion – The Physical (3)
The future What – or where – is Europe?Morocco?Turkey (2013/2021)?Probably not Switzerland…Others?
EU Expansion – The PoliticalRemember earlier slidesPre-Single European Act
Initial success: From ECSC to competition to CAP Rising tensions: French boycott, Luxembourg Accords“Eurosclerosis” (1960s-early 1980s)
Single European Act (1986)Established mechanisms for completion of single market by 1993Led to wide-ranging policy, political and institutional change
Post-Single European Act EU expansion into new policy areas confirmed by TEU, Amsterdam, and Nice
TodayWill CT/RT votes result in retrenchment?Member States reasserting “their” rights?
Institutions: Overview
European Court of Justice
European Commission: Appointed officials EU “executive branch”
and enforcement authority
Wide-ranging power to initiate and enforce legislation
Representation in flux; divided by subject matter
Subject to limited parliamentary oversightEuropean Parliament:
Elected officials Supervises various EU
activities Role in legislative process
varies Representation in flux Shares budgetary
responsibility with Council
Council of the EU: “Council of Ministers” but
not the “Council of Europe”
Consists of MS ministers who help establish EU political objectives and coordinate with national policies
MS take turns holding “Council Presidency”
Voting rules depend on subject matter (highlight QMV)
European Court of Justice: Based in Luxembourg One judge from each MS Ensures EU legal
compliance and proper treaty interpretation
Remember: Reform Treaty, Reform Treaty, Reform Treaty
Institutions: Commission
Photo credit: European Commission
http://ec.europa.eu/commission_barroso/index_en.htm
Institutions: European Parliament
Photo credit: European Commission
Institutions: ECJAs will see in case presentations, ECJ plays an extremely important role
Note Member State criticisms and UK effort to narrow the ECJ’s role
Procedure: 4 step process(i) Written proceedings(ii) Investigation / preparatory work(iii) Oral hearing(iv) Judgment
JurisdictionLegal: ensure proper interpretation and application of Treaty mandatesFactual: limited to fact patterns involving Treaty issuesGeographic: limited to Member States (though consequences far exceed)Note distinction between direct and indirect actions (discussed in greater detail in subsequent classes)
Institutions: MiscellaneousEuropean Central Bank
Manages the Euro and EU monetary policy
European Court of AuditorsSupervises EU expenditures
European OmbudsmanReceives, investigates and addresses inquiries about EU institutions
European Investment BankProvides financial support for EU developing regions
European Police Force (“Europol”)Facilities pan-EU police cooperation
Economic and Social CommitteeCoordinates “civil society” with EU institutional activity
And many more…
EU Law: The GoalsUnderstand these goals, and the rest of the course is
easy:
EC Treaty, Preamble“DETERMINED to lay the foundations of an ever closer union among the peoples of Europe,RESOLVED to ensure the economic and social progress of their countries by common action to eliminate the barriers which divide Europe”
EC Treaty, Article 2 “The Community shall have as its task, by establishing a common market and an economic and monetary union and by implementing common policies or activities . . . to promote throughout the Community a harmonious, balanced and sustainable development of economic activities. . . .”
EC Treaty, Article 10“Member States shall take all appropriate measures . . . to ensure their fulfillment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community’s tasks. They shall abstain from any measure which could jeopardize the attainment of the objectives of this Treaty.”
EU Law: The Sources (1)Treaties
See day one discussionRemember: frameworks, not details, though scope has expanded considerably over the yearsNote 1: Language, language, languageNote 2: Protocols and declarations
Secondary legislation
Remember: Member States remain autonomous countries; there is no intrinsic right to EU-initiated secondary legislationAgain: language, language, language Art. 249, EC Treaty, governs
EU Law: The Sources (2)Regulation“[S]hall have general application. It shall be binding in its entirely and directly applicable to all Member States.”
Recommendations and Opinions“[S]hall have no binding force.”
TEC Art. 249
Plus (1), there are many non-Treaty policy instruments (e.g., resolutions, conclusions, etc.) Plus (2), there are many specialized second/third pillar instrumentsPlus (3), the Reform Treaty modifies this approach
EU Law: The Sources (3)International agreements
Legal personality: EU v. CommunityHaegemann: class discussion (Saza Osawa; Theodore Shultz; Katherine Bond)RT will further expand this powerIs all of this good, bad, or neutral?
European Court of JusticeTreaties are frameworks, ECJ interprets and fills-in the blanks… …which in turn leads to treaty/legislative changeNote broad scope of Arts. 220 and 230 (p. 80)
Human RightsGradual inclusion of human rights principles
EU Law: Administrative and Procedural Law Observations
Judicial reviewBroad ECJ interpretation of right to judicial reviewSee, e.g. Johnston (access to employment), Kuhner (general review of all decisions that impact individual rights)
Confidentiality and privilege“Dawn raids,” documents and privilege Compare AM&S with AKZO
ProportionalityTheme across EU law: take the least intrusive approachSee, e.g., EC Treaty Art. 5: EU efforts must be proportional and not exceed specific aims
Legislation: Legal Basis (1)Remember: Member States remain autonomous countries; there is no intrinsic right to EU-initiated secondary legislation
EU Legislative and Policy Efforts Legal Basis / Structure
Economic Union / Internal Market
1. TEU Titles II-IV
2. 4 freedoms (people, goods,
services, capital)3. Qualified majority
voting (generally)
Common Foreign and
Security Policy 1. TEU Title V2. Safeguard
common values and interests3. Unanimous
voting (generally)
Police and Judicial
Cooperation1. TEU Title VI2. General law enforcement
activities3. Unanimous
voting (generally)
Legislation: Legal Basis (2)The critical issue: voting, voting, voting and the ability to “win”
Examples:
Case 68/86, UK v. Council (hormones)Result: UK request for unanimity rejectedCase 155/91, Commission v. Council (waste)Result: COM request for QMV rejectedCase 84/94, UK v. Council (working hours)Result: UK request for unanimity rejectedCase 295/90, EP v. Council (student residencesResult: EP request for cooperation – not consultation – upheldCase 300/89, Commission v. Council (dioxide)Result: COM request for QMV and EP cooperation rejected
…and soon to come, data retention!
High-level conclusion about ECJ precedent: when in doubt, give EP (and democratic principles) a chance
Legislation: Procedures (1)Consultation
EP consulted/asked for its opinionEP’s limited role led to concerns about “EU democratic deficit”
CooperationEnhanced EP role b/c rejection requires Council unanimityEffectively displaced by codecision
AssentEP assent requiredVery blunt (up/down, no amendments), so use limited to particularly significant issues
CodecisionUsed for most modern EU law-makingCOM, EP, Council share legislative power
Who decides?Certain treaty requirements, but plenty of “gray area”But remember, COM generally initiates
Legislation: Procedures (4)Why so many procedures?
Historic happenstance Competing stakeholdersCompeting goals, e.g., realization of internal market v. democratic idealsUS complexity + significant additional nuance Don’t forget CT and RT efforts
Does any of this really matter? Let’s look at a current hot topic…
Legislation: Procedures (5)
• TEC articles 95 and 251
Treaty Basis
• Codecision
Resulting Legislative Process
• Directive adopted, but only after major influence from EP, civil society, national authorities, etc.
Practical Consequences
• TEU articles 30, 31 and 34
Treaty Basis
• Third pillar process
Resulting Legislative Process
• Not adopted?• Adopted with very
different terms?
Practical Consequences
Actual DR procedure:
Alternative DR procedure: