Week 7: a union founded on the rule of law

Primary law:

law in the existing treaty framework, which is ultimately controlled by EUCO, as they control the mechanisms of changing the treaties.

Secondary law:

different kinds of legislation which has been proposed by the commission. There are 5 different types; regulation, directive, decision, recommendation, opinion.

Regulation, secondary law

law that binds everyone in the union immediately. It is the clearest form of EU law.

Directive, secondary law

a legislative act which sets out a goal that all member states msut achieve. But individual member states will still need to translate directives into national law. This also means that member states can interpret and tweak the directives a but to national liking. However, directives are EU-wide in scope.

Decision, secondary law:

a decision is not EU-wide and is binding on those addressed. But it still have binding legal effect.

Recommendations and opinions, secondary law

are not legally binding but more like legal expressions of a recommendation. For opinions, it is to allow EU institutions to make a statement on a topic in a non-legal Fashion.

The court of justice of the EU

is really two courts; the court of justice with 1 judge/MS which deals with requests from natinal courts and appeals) and the general court with 2 judges/MS who rules on actions related to competition, state aid, trade etc. The job of CJEU is to rule on actions brought by MS, give preliminary rulings on interpretation of EU law, and rule in other cases provided for in the treaties. The court has been integrated from the very beginning to keep EU functionable.

CJEU and the single market

the single market exists legally through producing secondary legislation. Single market as rule of law system in practive: Council & EP act as co-legislators, Commission implements & enforces competition rules, CJEU rules on cases that national courts cannot decide (= when EU-legislation is at stake). With directives, you have the national courts involved as well, but whenever there is a discussion about what the directive truly means, it will be send up to the court of justice.

Legal hierarchy of norms/primacy of EU law

In 1964, the court of justice established as a matter of practice that EU law is hierarchically superior to national law in order to make the common market function.

Enforcement action in European union for matters that pertain to EU legislation is very strong (compared to international law):

The commission can bring procedures to court. Court of justice issues its verdict. Then there is an appeal procedure, but that is where it stops. The law/decisions are binding and the whole system works because MS have voluntarily accepted to recognize the primacy of EU law and thereby the authority of the court of justice to issue final verdict. The whole EU system relies on MS having accepted the EU rule of law.

Area of freedom, security and justice (art 67 TFEU):

What actually came into existence through the treaty of Maastricht is that the archietecture of EU legislation was broadened from just concerning economic matters to really thinking through a more political union across the board. Relating to the rights of citizens (free movement etc), so doing away with internal border control etc

Schengen

‘No internal borders’ & common visa policy as the rule (with exceptions) >< varied external relations. Trade-offs between ease of free movement (+) and cost and complexity of internal security & rule of law (-)

TEU art 2

If you look at the union as a legal construct, the rule of law is the most foundational because the union exists on the basis of this very idea. That MS enforce the laws on their national territories and accept the rule of law within the framework of european law (that they have created themselves). Rule of law: ultimately interpeting what all of this means is delegated to the court of justice. Ultimately hinges on MS voluntarily accepting that the law of eu level must prevail and they willingly subordinate themselves to EU law. 'Compliance with those values', the Court of Justice has held, 'cannot be reduced to an obligation which a candidate State must meet in order to accede to the [EU] and which it may disregard after its accession'.64 The Member States must respect those values 'at all times'. 

What if the rule of law is at risk:

1) On proposal by MS / EP / COM, the Council may, by 4/5 majority and with EP consent, determine clear risk of serious breach against Art 2 values. The warning sign, council can issue a warning sign 2) EUCO may, by unanimity, on a proposal by 1/3 of MS or by COM and after EP consent, determine existence of serious and persistent breach. A political verdict that there is a breach against art 2 values. Must be unanimity in EUCO. 3) If so, Council may by QMV decide to suspend (voting) rights of the MS government in question. Member state can’t be kicked out, but it can be stripped of its voting rights. 4) Council may by QMV vary or revoke measures in response to changes in the situations. + other instruments (e.g. role of the CJEU, EU budget)

Difference between EU context and national context

Rule of law in national context: based on checks and balances, different branches keeps each other in balance. At EU level, much less executive power but comparetively but more judicial and legislative. Becuase EU exists via the whole body of secondary legislation which gets enforced by court of justice. So separation of power comparison between MS and EU level looks different as the EU is somewhere in between being a state and an international organisation

The rule of law as normative ideal vs practical fact:

We tend to associate the rule of law with a political ideal. But for the rule of law to work at Eu level (as there is no strong executive presence which can impose its will on people), the rule of law must also exist as a practical fact in the sense that the whole system relies on the legal framework to continue functioning. As the legal framework occupies a more central position than in the case of state structures.

Pringle case and ESM

Using the simplified revision procedure, the European Council inserted Article 136(3) TFEU to allow euro-area Member States to establish a stability mechanism subject to strict conditionality. Thomas Pringle challenged the legality of this amendment, prompting the Irish Supreme Court to refer questions to the CJEU. In its landmark ruling, the Court held that the simplified revision was valid and that the amendment concerned only Part III TFEU, because it neither altered the Union’s competences nor encroached on exclusive EU powers in monetary policy. The Court drew a principled distinction between monetary policy—directed at maintaining price stability—and economic policy, which includes measures such as the ESM aimed at stabilising the euro area as a whole. It held that the ESM was an economic policy instrument that did not overlap with EU exclusive competences.