Foundations

History of the EU, institutions, competences, sources of EU law

timeline of the development of the EU

1. 1950s: founding treaties

2. political stagnation

3. 1986: single european act

4. Maastricht Treaty

founding treaties (1950s): what did they create, their aim, at that stage?

• created the European Economic Community (EEC)

• aim:

  • prevent another European war

  • economic cooperation

  • create a common market

  • remove trade barriers

• at that stage:

  • Member States: very powerful

  • European Parliament: had little influence

  • Council: dominated decision making

  • Commission: already proposed legislation

  • Court of Justice: already existed

Political Stagnation phase

• integration slowed

• due to

  • unanimity requirement

  • Member States reluctant to give away sovereignty

  • difficult decision-making

• Judicial activism occurred: instead of politicians expanding the EU law, the Court of Justice became very active

• the Court developed doctrines like the direct effect & supremacy, even though they were not expressly written in the Treaties

Single European Act

• 1986

• purpose: to finish creating the internal market

4 major changes that occurred in the Single European Act (SEA)

1. added a deadline of 1992 to complete the internal market

2. qualified major voting (QMV)

   1. before: council usually required unanimity

   2. after: many Internal Market measures could be adopted by QMV

   3. one Member State could no longer veto everything → made legislation easier

3. new policy areas

   1. EU obtained powers regarding environment & consumer protection

4. European Parliament → cooperation procedure introduced

   1. increased Parliament influence for the first time (were granted limited legislative powers allowing it to amend Council decisions) → not yet = to council

Maastricht Treaty

• 1992

• created the EU: the EEC became part of the new EU

• EU consisted of 3-pillar structure

• Economic & monetary union → eventually led to the €

• co-decision procedure: huge increase in Parliament’s power → Council & Parliament increasingly legislated together → much more democratic

EU 3-pillar structure

• 1st pillar: European Communities

• 2nd pillar: Common Foreign & Security Policy

• 3rd pillar: Justice & Home Affairs

Lisbon Treaty

• 2009, current constitutional framework

• 2 current Treaties: TEU & TFEU

• EU became legal successor & replaced EC (European Community)

• 3-pillar structure was abolished → simpler legal system

• ordinary legislative procedure

Ordinary legislative procedure (OLP)

• co-decision renamed

• OLP became the normative legislative procedure

• primary method for adopting laws in the EU

• European Parliament & Council of the EU legislate jointly

what did enlargements cause?

• process of admitting new countries into the EU

1. more diversity

2. more Member States

3. harder decision-making

4. greater use of QMV

5. stronger Parliament

quick meaning of the 3 TEU competence principles

1. principle of conferral → can the EU act?

2. principle of subsidiarity → should the EU act?

3. principle of proportionality → has the EU gone too far?

the Commission

• the executive

• main jobs

  • legislative initiative → usually only they propose EU legislation → Council & Parliament adopt it

  • guardian of the Treaties → checks if Member States & companies comply with EU law

  • can start infringement proceedings if they aren’t

  • promotes general interest of the EU, not national interests

• weak accountability → the Parliament can dismiss the Commission

the Council

• represents Member States governments, not citizens

• main role → joint legislator with the Parliament

• voting → often QMV, sometimes unanimity

European Parliament

• represents EU citizens

• is directly elected

• main functions

  • joint legislator with the Council (OLP) → can pass a motion of censure

  • sets the EU budget with council (how much money & where it is spent)

  • political scrutiny (checks & supervises what the Commission & other institutions are doing)

• its powers have steadily increased → didn’t always have today’s powers

European Council

• represents Heads of State or Heads of Government

• main role → political leadership & long-term direction

• no legislative power

Court of Justice

• purpose

  • maintain rule of law

  • interpret EU law

  • ensure uniform application

• procedures

  • action for annulment → CJEU reviews legality of EU acts

  • preliminary reference → national court asks CJEU to clarify what a law means, to ensure the EU law is uniform

  • enforcement actions → Commission brings a Member State before the Court for violating EU law

principle of conferral

• article 5(2) TEU

• the EU has only those powers which the Member States have given it in the Treaties

• everything else remains with Member States

• the EU may only legislate if a Treaty competence exists

types of competence

1. exclusive (3 TFEU) → only the EU legislates, Member States cannot

2. shared (4 TFEU) → both EU and Member States can legislate

3. supporting (6 TFEU) → EU only supports

subsidiarity

• 5(3) TEU

• only applies where competence is shared

• if Member States can achieve the objective alone, EU should stay out → if not, they may act

• eg. climate change → one country alone can’t solve it → justified EU action

• cross-border problems usually satisfy subsidiarity → one Member State acting alone may be ineffective

proportionality

• 5(4) TEU

• has the EU gone further than necessary?

• action can be suitable, necessary, or not excessive → gone too far if action is disproportionate to objective

judicial review

• the Court does not closely review subsidiarity → review is quite restrained

• because subsidiarity often involves political judgement

• the Court gives institutions a wide discretion (freedom)

Tobacco Advertising I

• principle: article 114 TFEU is not an unlimited competence

• the EU cannot regulate everything by claiming it affects the Internal Market

• aka. if a measure has almost nothing to do with removing trade barriers, article 114 cannot be justified

hierarchy of EU law (highest to lowest)

1. Treaties

2. General principles & charter

3. secondary legislation

4. international agreements

5. national law

Treaties

• primary law

• the constitutional foundation of the EU

• current Treaties: TEU & TFEU

• treaties contain

  • fundamental values → defined under Article 2 TEU

  • institutions → who does what (commission, council, parliament, court)

  • competences → what may the EU legislate

  • legislative procedures → who passes legislation

• the Treaties are comparable to a national constitution

general principles of EU law

• unwritten legal rules & fundamental values developed by the CJEU

• their purpose

  • guide the interpretation of EU treaties

  • fill legislative gaps

  • can be used by the CJEU to invalidate EU legal acts that violate them

• were developed because the Treaties couldn’t cover every possible situation

• examples:

examples of general principles of EU laws (7)

• legal certainty → people should know the law

• non-retroactivity → laws shouldn’t punish actions from before the law existed

• non-discrimination → treat similar situations similarly

• proportionality → EU measures must be suitable, necessary, non-excessive

• rights of defence → people should be heard before sanctions are imposed

• transparency → EU institutions should act openly

• precautionary principle → where there is scientific uncertainty but a risk of serious harm, protective measures may be justified

secondary legislation

• article 288 TFEU

• regulations

  • binding in their entirety

  • directly applicable (it automatically becomes law in every Member State, no national act is required)

  • if a Regulation clearly gives someone a right, they may rely on it before a national court

• directives

  • binding only as to the result to be achieved

  • Member States choose the forms & methods

• decisions

• recommendations & opinions

international agreements

• agreements concluded with by EU with third countries or international organisations

• once validly concluded by EU, they are a recognised source (a part) of EU law

• they can influence the legality & interpretation of EU legislation

• not every provision of every international agreement can automatically be relied upon by individuals in court (direct effect) → depends on its wording, purpose, & nature

• eg WTO agreements → often not directly enforceable by individuals before EU courts

Van Gend en Loos principle

• Treaty Articles can create rights for individuals

• established direct effect of Treaty provisions, provided the provision is sufficiently clear, precise, & unconditional

• allows individuals to invoke EU law directly in their national courts to enforce rights, even if their member state has failed to properly implement those rules

• Vertical direct effect

  • allows individuals to enforce EU law against a Member State or an emanation of the state (eg gov agencies, nationalised industries, or public hospitals)

  • all forms of binding EU law (Treaties, Regulations, Directives) can have vertical direct effect

• Horizontal direct effect

  • llows individuals to enforce EU law against other private individuals or private companies

  • Treaty provisions & Regulations can have horizontal effect, but Directives generally cannot