EU Law
The Origins of the European Integration Process
Understanding the origins of the EU is crucial to understanding its current functioning.
The primary motivation for integration was to prevent future conflicts by moving away from nationalistic politics.
Following WWII, many international organizations were formed to maintain peace.
The Council of Europe, based in Strasbourg, focuses on protecting fundamental rights but is distinct from the EU.
Traditional international organizations rely on treaties without transferring innovative powers.
The European Economic Communities (EEC) represent a different approach.
The Hague Conference (1948)
The Hague Conference in 1948 was the first major discussion on creating something new in Europe.
Politicians and individuals debated three approaches:
Traditionalist: Creating an ordinary international organization.
Federalist: Establishing a single federal state in Europe, abolishing national states.
Functionalistic: A step-by-step integration process to create de facto solidarity.
The Shuman Declaration (1950)
The Shuman Declaration adopted the functionalistic approach with two goals:
Long-term: Establishing a supranational institution.
Short-term: Sharing coal and steel trade to avoid conflict.
The aim was to create an ever-closer union through gradual integration.
The European Coal and Steel Community (1951)
The ECSC was the first outcome of the Shuman Declaration.
Similarities to traditional organizations:
Limited scope: common market for coal and steel.
Innovative features:
Complex institutional framework similar to today's EU.
The European Commission (Higher Authority):
Supranational institution composed of independent members acting in the interests of the European Community.
Currently composed of one member from each member state.
The Council:
Composed of representatives (ministers) from each member state.
Represents the intergovernmental approach.
The Assembly (now European Parliament):
Initially composed of members from national parliaments (indirect representation).
The European Court of Justice:
Ensures the treaty's effectiveness and compliance by member states.
EURATOM (1957)
EURATOM dealt with atomic energy.
Similar to traditional organizations: focused on a specific topic.
Distinctive feature: no expiry date, indicating a desire for long-lasting cooperation (unlike the ECSC, which was set to expire after 50 years).
The European Economic Community (1957)
The EEC aimed to avoid conflicts by increasing trade.
Based on an economic approach with limited competences compared to the EU.
Established the common market through four fundamental freedoms:
Free movement of goods.
Free movement of services.
Free movement of capital.
Freedom of establishment.
Initially, these freedoms applied only to economic operators.
Competition law was included to prevent private undertakings from jeopardizing the fundamental freedoms.
Economic fundamental freedoms are addressed to member states.
Competition law deals with anticompetitive agreements and abusive conducts.
The Merger Treaty (1967)
Unified the institutional frameworks of the EEC, ECSC, and EURATOM to reduce costs and complexity.
Prior to the treaty, each community had its own separate institutions (councils, assemblies, courts, etc.).
First Setbacks in the Integration Process
The failure of the CED:
A common European defense project failed due to concerns over national sovereignty.
The “empty chair” crisis and the Luxembourg Compromise (1966):
France, under Charles de Gaulle, opposed further integration and boycotted Council meetings.
The Council required unanimity for votes, leading to a standstill.
The Luxembourg Compromise informally recognized the rule of consensus, requiring continued work until everyone agreed.
Highlighted the difficulty of positive integration due to the unanimity rule.
Positive and Negative Integration
Positive integration: Creating new rules.
Negative integration: Removing existing rules.
Due to the unanimity rule, positive integration was difficult in the early years.
The European Court of Justice took the lead through the preliminary reference procedure.
The ECJ dismantled national legislation that limited fundamental freedoms.
The Single European Act (1986)
The Single European Act primarily aimed to foster the development of the internal market.
Amendments to the Treaty of Rome included:
Replacing unanimity with qualified majority voting in some areas related to the internal market.
Reinforcing the European Parliament, which began direct elections in 1979.
Introducing new procedures (cooperation and consultation) to increase Parliament's involvement in decision-making.
The Maastricht Treaty (1992)
The Maastricht Treaty created the European Union with a three-pillar structure:
The European Community.
The Common Foreign and Security Policy (CFSP).
Justice and Home Affairs (JHA).
The structure reflected a division between the “community method” and traditional intergovernmental cooperation.
Member states were hesitant to cede powers related to national sovereignty.
The treaty signified a shift from a purely economic focus to broader competences, including the creation of EU citizenship.
The community method is stronger level of cooperation than the intergovernmental one.
Community Method vs. Intergovernmental Cooperation
Community Method:
Institutions act in the interest of the community.
Unanimity is reduced, with qualified majority voting used.
European institutions adopt binding legal acts, and the European Court of Justice ensures judicial review.
Intergovernmental Cooperation:
Traditional international approach.
Qualified majority voting:
A double standard considering both the number of member states and the population of each state.
Significantly impacts national sovereignty.
The Amsterdam Treaty (1997)
The Amsterdam Treaty was motivated by the end of the Cold War and the potential membership of former Soviet states.
A new third pillar was introduced: cooperation in police and criminal matters.
Enhanced cooperation was introduced, allowing a smaller group of member states to proceed with initiatives when unanimity could not be reached.
The treaty formulated the fundamental principles of the EU (democracy, human rights) and created a procedure (Art. 7 TEU) to address breaches of these principles by member states.
The Treaty of Nice (2001)
The Treaty of Nice adopted the Charter on the Fundamental Rights of the European Union, a codification of existing fundamental rights within the EU legal order.
Fundamental rights are considered general principles of EU law and thus primary law.
Treaty on the European Constitution (2004)
The Treaty establishing a Constitution for Europe failed ratification in the Netherlands and France.
Symbolic elements such as the EU flag and anthem were included, but the treaty was ultimately unsuccessful.
The Treaty of Lisbon (2009)
The Lisbon Treaty is composed of two treaties:
The Treaty on the European Union (TEU).
The Treaty on the Functioning of the European Union (TFEU).
The Charter of Fundamental Rights of the European Union (CFREU) acquired legal force and became part of the binding legal acts of European Union law.
The European Union acquired legal personality, and the European Community ceased to exist.
The treaty emphasizes representative democracy, with citizens directly represented in the European Parliament and indirectly in the European Council.
The pillars of the Maastricht Union were abolished.
The Institutional Framework
Article 13 TEU lists the seven institutions of the EU:
The European Parliament.
The European Council.
The Council of Ministers.
The European Commission.
The Court of Auditors.
The European Central Bank.
The European Court of Justice.
Institutions must act within the powers conferred by the treaties and practice mutual sincere cooperation.
The European Council (Article 15 TEU – Articles 235-236 TFUE)
Distinct from the Council of Ministers and the Council of Europe.
First mentioned in the European Single Act (1986) and formally established as an institution by the Lisbon Treaty (2009).
Members: Heads of State or Government of the member states and the President of the European Council.
The President of the European Council presides over meetings, coordinates work, ensures consistency, and reports to the European Parliament.
The High Representative for the Common Foreign and Security Policy can participate in the works.
Main task: to provide the Union with the necessary political impetus for its development and define general political directions and priorities.
Does not exercise legislative functions.
Adopts conclusions and decisions, including decisions on the functioning of other institutions.
The EU Council is the highest political forum of the EU.
Plays a role in the procedure ex art. 7 TEU.
Partakes in the election/appointment of high-profile members of the institutions.
It can adopt decisions amending the Treaties (simplified procedures for Treaty amendments set by Article 48 TEU).
Decides primarily by consensus; however, sometimes decides by qualified majority.
The Council of Ministers (Articles 16 TUE and 237-243 TFEU)
Composed of one member for each member state at the ministerial level.
Variable composition: changes depending on the agenda.
Internal organization:
Working groups.
COREPER 1 and COREPER 2 (Committee of Permanent Representatives).
Specific configurations.
Council presidency (rotating presidency held by pre-established groups of three Member States for a period of eighteen months).
Main decisional body, sharing legislative power with the EU Parliament.
Approves the EU budget with the EU Parliament.
Has external action power, including negotiating and executing international agreements.
Main player in the Common Foreign and Security Policy field.
Voting procedures are complex, with a gradual replacement of unanimity with the majority principle.
Qualified majority voting: at least 55% of member states and 65% of the population.
Unanimity still required in some areas (CFSP, taxation).
EU Parliament (Article 14 TEU – Articles 223-236 TFEU)
Replaced the Assembly, ensuring democratic representation (indirectly under the Treaty of Rome).
The turning point was the election of the EU Parliament by direct universal suffrage decided in 1976 and with the first elections carried out in 1979.
Composed of representatives of the citizens of the European Union.
Mandate: 5 years.
The parliament shall approve the Commission and is empowered to do a motion of censure.
Electoral procedures vary by member state but adhere to principles such as single vote, elections on the same date, and proportional representation.
Number of MEPs is divided on a national basis, representation of citizens within the European Parliament is degressively proportional.
Legal regime: partly by the Treaties and partly by the internal regulation.
MEPs constitute political groups based on common political views (but some can be enrolled in any group).
Before any voting, groups shall examine the relations drafted by the Parliament Committees and can propose amendments.
However, the MEPs are free to vote differently.
President elected by Parliament (2,5 years mandate).
Today the EU Parliament is the co-legislator of the EU legal order together with the Council.
Also, every revision of the Treaty has progressively reinforced the role of the EU parliament since the Single European Act (1986).
There are, however, sectors where the role of the Parliament is still limited or absent (CFSP).
The parliament has also a role of political and democratic control. For example:
every six months the Council shall present to the Parliament a programme of its works as well as a relation at the end of each semester.
every year the Commission shall present to the Parliament an annual relation on the activity of the European Union.
The motion of censure (article 234 TFUE) is a very strong instrument vis-à-vis the Commission.
Any citizen of the Union, but also any natural or legal person residing in a Member State, has the right to submit petitions (article 227 TFEU) to the EU Parliament, which is therefore obliged to receive them.
An addition organ has been introduced with the Maastricht Treaty which is the European Ombudsman (articles 20, 24 and 228 TFEU).
The Commission (Article 17 TEU and Articles 244-250 TFEU)
The Commission shall promote the general interest of the Union.
It holds a kind of 'monopoly' with regard to the power of legislative initiative and the executive power.
The Commission is composed of one Commissioner per Member State, thus today 27 members.
Commissioners are chosen on the basis of their general competence and must offer significant guarantees of independence from States and private individuals.
High Representative for foreign affairs and security policy is Vice-President of the Commission.
The EU Competences
The Principle of Conferral (Article 5 TEU)
The limits of Union competences are governed by the principle of conferral.
Competences not conferred upon the Union in the Treaties remain with the Member States.
The Union has no competences of its own (no original competences), but only the specific competences conferred to it by the States.
The EU does not “steal” competences form the Member States, the Member States freely decide to let the Union do something that would otherwise fall within the national competences.
The Union has no general purpose: it can only intervene in those cases and in those ways in which the Member States allow it through the Treaties.
Being a direct expression of the principle of conferral, the need for the EU institutions
The Legal Basis
Identifying and making explicit the legal basis of their actions is a peculiarity of the Union's legal system.
These elements can be subject to judicial review by the Court of Justice, who can annul the act if the legal basis was wrongly identified.
When the Treaties offer, in the abstract, several legal basis to regulate a given matter, the legal basis which is most connected to the content and the purpose of the act shall be preferred following the centre of gravity theory.
Different Kind of Competences
The classification of competences in an 'ordered' manner is one of the novelties introduced by the Lisbon Treaty.
Exclusive competences (Article 3 TFEU)
The Union shall have exclusive competences in the following areas:
customs union
the establishing of the competition rules necessary for the functioning of the internal market
monetary policy for the Member states whose currency is the euro
the conservation of marine biological resources under the common fisheries policy
common commercial policy
The list of the exclusive competences provided by Article 3 TFEU is exhaustive in nature.
That a competence has been conferred to the EU on an exclusive basis means that, in the fields mentioned by Article 3 TEU, only and solely the Union may intervene.
Shared competences (Article 4 TFEU)
The Union shall share competence with the Member States where the Treaties confer on it a competence which does not relate to the areas referred to in Article 3 and 6.”
The shared competences category is a “catch-all” one.
That a competence is shared between the EU and the Member States means that, in theory, both the EU and the Member States can intervene.
However, this is true only if the process of integration and the EU legal order had been at “time zero”.
Indeed, the division of shared competences is governed by the so-called principle of pre-emption, according to which the Member States may only intervene if the Union has not yet regulated that matter.
Supporting competences (Articles 5 e 6 TFEU)
The Member States shall coordinate their economic policies within the Union.
The Union shall have competences to carry out actions to support, coordinate and supplement the actions of the Member States.
As the catch-all category is the one of the shared competencies, it is obvious that the lists provided by Articles 5 and 6 TFEU is exhaustive in nature.
Examples:
training and education
youth, sport, tourism
culture, industry
protection and improvement of human health
civil protection
administrative cooperation.
The Flexibility Clause (Article 352 TFEU)
If an action of the Union appears necessary, within the framework of the policies defined by the Treaties, to attain one of the objectives set out in the Treaties, without the Treaties having provided the necessary powers, the Council, acting unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament, shall adopt the appropriate provisions.
Actions based on Article 352 TFEU cannot lead to harmonisation of national rules.
The Theory of Implicit Powers
It is a theory created by the ECJ to allow the Union to exercise those powers which, although not conferred directly, are indispensable for the effective exercise of the competences that were conferred to it.
This theory is based on the general EU law principle of so-called effet utile.
The Principles Governing the Exercise of the Competences
The development in this field therefore occurred through the case law of the ECJ and the principles expressed where subsequently codified in the Treaties from the Maastricht one onwards.
The division of competence between the Union and the Member States and the exercise by the Union of its powers is governed by two fundamental principles, the principle of subsidiarity and the principle of proportionality.
The principle of proportionality always applies, whereas the principle of subsidiarity applies only in matters which are not exclusively attributed to the Union (Article 5(3) TFEU).
The Principle of Proportionality
Pursuant to the principle of proportionality, EU action must be limited to what is necessary to achieve the objectives of the Treaty.
A practical consequence is the general preference for the instrument of the directive instead of the regulation as a source of secondary legislation.
The Principle of Subsidiarity
According to Article 5(3) TFEU: “Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufÏciently achieved by Member States, either at a central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level”
The beneficiaries of the principle of subsidiarity are therefore the Member States, who see their sphere of sovereignty (in the areas of shared competences) protected against the adoption of acts without 'EU added value'.
Protocol 2 to the Lisbon Treaty
The Protocol on the application of the principles of subsidiarity and proportionality allows for an ex ante political control on the respect of the principles (and thus of national prerogatives).
The Commission, before exercising its power of legislative initiative, is obliged to undertake extensive and thorough consultations.
The Commission has the burden to “sate reasons” for every legislative proposal also with regard to compliance with the principle of subsidiarity.
Each legislative proposal must be sent by the Commission to the national Parliaments, which have 8 weeks to issue a reasoned opinion.
Yellow card:
1/3 negative votes (1/4 if Area of Freedom, Security and Justice) --> The Commission must reconsider the proposal and may maintain, amend or withdraw it.
Orange card:
majority negative votes --> The Commission must reconsider, it can keep the proposal, but if the majority of Members of Parliament or 55% of the Council are against the proposal, the proposal is abandoned.
Sources of European Law: Primary Law
Eu law sources could be reassumed in the following scheme and then analysed one by one.
Primary Law: the Treaties (TEU and TFEU) + general principles of EU law + CFREU
International Law: general international law + international agreements executed by the EU
Secondary Law: binding sources (regulations, directives and decisions) and non-binding sources (recommendations and opinions)
Other sources: soft laws such as guidelines and communications
The Treaties
Treaties provide the basic (but fundamental) legal regime to regulate the relations between the different subjects of the EU legal order.
They are the higher legal source of the EU legal order, in the hierarchy of the sources, therefore, they are above inter alia secondary law.
Treaties can confer rights (or impose obligations – see for example Articles 101 and 102 TFEU) not only to the institutions and the Member States but also upon individuals (Van Gend en Loos case).
Treaties confer the competences to the EU institutions and therefore confer legal force and effectivity to the acts of the institutions.
The Treaty on the European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) have the very same legal value.
TEU is composed by 55 articles divided in: preamble, common provisions, provisions on democratic principles, provision on the institutions, provision on enhanced cooperation.
TFEU is composed by 360 articles with a preamble, and it is divided in 7 different parts.
Revision of the Treaties
The revision procedures of the Treaties are three with different characteristics and different institutions involved:
The ordinary revision procedure
The simplified procedure n. 1: only for the third part of the TFEU
The simplified procedure n. 2: the so-called bridging or passerelle procedure
The Ordinary Revision Procedure
This is the more general and can always be applied by Convention or by Intergovernmental Conference.
The power of initiative, to propose amendment to the Treaties rest with the EU Parliament, the Commission or each Member State government.
The Simplified Procedure n. 1: only for the third part of the TFEU
This procedure cannot be used to increase or decrease the Union's powers or competences.
The power of initiatives rests with the EU Parliament, the Commission or each Member State government (as in the ordinary revision procedure)
The Simplified Procedure n. 2: The So-Called Bridging or Passerelle Procedure
This procedure allows the transition from situations that are now exceptional in the context of the Lisbon Treaty to what is the ordinary scenario.
It works by unanimity in the European Council after approval by the European Parliament and without the need of ratification by the member states. .
General Principles of the EU
The general principles of EU law are primary source of law.
Their function is to help to fill any legal gaps, they are parameters for interpretation of EU law (both the Treaties and secondary law) and also parameters for legitimacy of secondary legislation, i.e., they are binding not only for Member States but also for the EU institutions.
General principles are divided in those typical of EU law such as non-discrimination, subsidiarity, mutual recognition, loyal cooperation, effet utile and those common to national legal systems like legality, democracy, legitimate expectations, proportionality.
effet utile: Any disposition of EU law shall be interpreted and applied in the way that better allow the achievement of the goal set forth in it.
loyal cooperation: it is the obligation for Member States to take any measures of a general or particular nature appropriate to ensure the execution of obligations arising from the Treaties or resulting from the acts of the institutions.
legal certainty: it is the transparency of the administrative action which consists in a safeguard of individual legitimate expectation for example with regard to sudden change in legal discipline or the revocation/annulment of individual acts.
The Protection of Fundamental Rights
No disposition of the Treaty of Rome dealt with the protection of fundamental rights.
In the early 1960s, the Court of Justice afÏrmed the irrelevance at the Community level of fundamental rights and their protection.
Shortly after, the ECJ afÏrmed principles such as those of direct effect (1963 Van Gend en Loos Case) and, above all, of the primacy of Union law over national law, including constitutional law.
To cope with the position taken by the Constitutional courts (especially Italian and German), the Court of Justice changed its position.
In the late 1960s, the Court of Justice recognized that fundamental rights were (and still are) part of the general legal principles of EU law and that, as a consequence, the Court was going to ensure that EU institutions complied with them.
Most importantly, fundamental rights become a yardstick for the assessment of the legitimacy of the activity of the EU institutions and thus, of the validity of EU secondary law which means that if an act of secondary law does not comply with fundamental rights can be annulled and/or declared invalid by the ECJ.
The “sources of inspiration” used by the Court of Justice are the constitutional traditions common to Member States, international treaties relating to the protection of human rights to which Member States have cooperated or acceded, the European Convention on Human Rights (ECHR) and other international agreements.
The CFREU
There was a growing need for a codification, in order to have a
The Origins of the European Integration Process
Understanding the origins of the EU is crucial to understanding its current functioning. The integration process was driven by a desire to move beyond nationalistic politics and prevent future conflicts in Europe.
Following WWII, many international organizations were formed to maintain peace. These organizations aimed to foster cooperation and prevent the recurrence of devastating wars.
The Council of Europe, based in Strasbourg, focuses on protecting fundamental rights but is distinct from the EU. It plays a significant role in promoting democracy and human rights across Europe.
Traditional international organizations rely on treaties without transferring innovative powers. These organizations typically operate on the basis of intergovernmental cooperation, where states retain their sovereignty.
The European Economic Communities (EEC) represent a different approach, characterized by the pooling of sovereignty and the creation of supranational institutions.
The Hague Conference (1948)
The Hague Conference in 1948 was the first major discussion on creating something new in Europe. It brought together politicians, thinkers, and individuals to discuss the future of Europe after the war.
Politicians and individuals debated three approaches:
Traditionalist: Creating an ordinary international organization, maintaining national sovereignty.
Federalist: Establishing a single federal state in Europe, abolishing national states. This approach advocated for a unified European government.
Functionalistic: A step-by-step integration process to create de facto solidarity. This approach focused on integrating specific sectors to foster cooperation.
The Shuman Declaration (1950)
The Shuman Declaration adopted the functionalistic approach with two goals:
Long-term: Establishing a supranational institution to oversee key sectors of the economy.
Short-term: Sharing coal and steel trade to avoid conflict, fostering economic interdependence.
The aim was to create an ever-closer union through gradual integration, building trust and cooperation over time.
The European Coal and Steel Community (1951)
The ECSC was the first outcome of the Shuman Declaration. It marked the beginning of European integration by pooling coal and steel resources.
Similarities to traditional organizations:
Limited scope: common market for coal and steel, focusing on specific industries.
Innovative features:
Complex institutional framework similar to today's EU, with supranational elements.
The European Commission (Higher Authority):
Supranational institution composed of independent members acting in the interests of the European Community. Commissioners are appointed to represent the common European interest.
Currently composed of one member from each member state, ensuring representation from all nations.
The Council:
Composed of representatives (ministers) from each member state. Ministers represent their national interests within the Council.
Represents the intergovernmental approach, where national governments play a key role.
The Assembly (now European Parliament):
Initially composed of members from national parliaments (indirect representation).
The European Court of Justice:
Ensures the treaty's effectiveness and compliance by member states, resolving disputes and interpreting EU law.
EURATOM (1957)
EURATOM dealt with atomic energy, promoting its peaceful use and research.
Similar to traditional organizations: focused on a specific topic, coordinating efforts in the field of atomic energy.
Distinctive feature: no expiry date, indicating a desire for long-lasting cooperation (unlike the ECSC, which was set to expire after 50 years).
The European Economic Community (1957)
The EEC aimed to avoid conflicts by increasing trade and economic integration.
Based on an economic approach with limited competences compared to the EU. The EEC focused on creating a common market and promoting economic growth.
Established the common market through four fundamental freedoms:
Free movement of goods, allowing goods to circulate freely between member states.
Free movement of services, enabling service providers to offer their services across borders.
Free movement of capital, facilitating the flow of investments and financial transactions.
Freedom of establishment, allowing individuals and companies to establish businesses in any member state.
Initially, these freedoms applied only to economic operators, gradually expanding to include all citizens.
Competition law was included to prevent private undertakings from jeopardizing the fundamental freedoms, ensuring a level playing field.
Economic fundamental freedoms are addressed to member states, requiring them to remove barriers to trade and economic activity.
Competition law deals with anticompetitive agreements and abusive conducts, promoting fair competition.
The Merger Treaty (1967)
Unified the institutional frameworks of the EEC, ECSC, and EURATOM to reduce costs and complexity, streamlining decision-making processes.
Prior to the treaty, each community had its own separate institutions (councils, assemblies, courts, etc.).
First Setbacks in the Integration Process
The failure of the CED:
A common European defense project failed due to concerns over national sovereignty, highlighting the challenges of integrating defense policies.
The “empty chair” crisis and the Luxembourg Compromise (1966):
France, under Charles de Gaulle, opposed further integration and boycotted Council meetings, leading to a political crisis.
The Council required unanimity for votes, leading to a standstill, paralyzing decision-making.
The Luxembourg Compromise informally recognized the rule of consensus, requiring continued work until everyone agreed. This compromise aimed to address concerns about national sovereignty.
Highlighted the difficulty of positive integration due to the unanimity rule, demonstrating the challenges of reaching agreements on new policies.
Positive and Negative Integration
Positive integration: Creating new rules and policies at the European level.
Negative integration: Removing existing rules and barriers to trade and economic activity.
Due to the unanimity rule, positive integration was difficult in the early years, limiting the scope for new EU-level policies.
The European Court of Justice took the lead through the preliminary reference procedure, interpreting EU law and ensuring its uniform application.
The ECJ dismantled national legislation that limited fundamental freedoms, promoting the free movement of goods, services, capital, and people.
The Single European Act (1986)
The Single European Act primarily aimed to foster the development of the internal market, removing remaining barriers to trade and creating a single economic space.
Amendments to the Treaty of Rome included:
Replacing unanimity with qualified majority voting in some areas related to the internal market, speeding up decision-making.
Reinforcing the European Parliament, which began direct elections in 1979, increasing its democratic legitimacy.
Introducing new procedures (cooperation and consultation) to increase Parliament's involvement in decision-making.
The Maastricht Treaty (1992)
The Maastricht Treaty created the European Union with a three-pillar structure:
The European Community, dealing with economic, social, and environmental policies.
The Common Foreign and Security Policy (CFSP), coordinating foreign policy among member states.
Justice and Home Affairs (JHA), addressing issues such as immigration, asylum, and crime.
The structure reflected a division between the “community method” and traditional intergovernmental cooperation, balancing supranational and intergovernmental approaches.
Member states were hesitant to cede powers related to national sovereignty, particularly in areas such as defense and foreign policy.
The treaty signified a shift from a purely economic focus to broader competences, including the creation of EU citizenship, giving individuals rights and responsibilities as EU citizens.
The community method is stronger level of cooperation than the intergovernmental one, with more supranational decision-making.
Community Method vs. Intergovernmental Cooperation
Community Method:
Institutions act in the interest of the community, prioritizing the common European interest.
Unanimity is reduced, with qualified majority voting used, enabling faster decision-making.
European institutions adopt binding legal acts, and the European Court of Justice ensures judicial review, ensuring compliance with EU law.
Intergovernmental Cooperation:
Traditional international approach, where member states retain control over decision-making.
Qualified majority voting:
A double standard considering both the number of member states and the population of each state, ensuring fair representation.
Significantly impacts national sovereignty, requiring member states to cede some control to the EU.
The Amsterdam Treaty (1997)
The Amsterdam Treaty was motivated by the end of the Cold War and the potential membership of former Soviet states, preparing the EU for enlargement.
A new third pillar was introduced: cooperation in police and criminal matters, enhancing cooperation in law enforcement.
Enhanced cooperation was introduced, allowing a smaller group of member states to proceed with initiatives when unanimity could not be reached, fostering flexibility.
The treaty formulated the fundamental principles of the EU (democracy, human rights) and created a procedure (Art. 7 TEU) to address breaches of these principles by member states, safeguarding core values.
The Treaty of Nice (2001)
The Treaty of Nice adopted the Charter on the Fundamental Rights of the European Union, a codification of existing fundamental rights within the EU legal order, ensuring their protection.
Fundamental rights are considered general principles of EU law and thus primary law, carrying significant legal weight.
Treaty on the European Constitution (2004)
The Treaty establishing a Constitution for Europe failed ratification in the Netherlands and France, due to concerns about national sovereignty and the EU's direction.
Symbolic elements such as the EU flag and anthem were included, but the treaty was ultimately unsuccessful.
The Treaty of Lisbon (2009)
The Lisbon Treaty is composed of two treaties:
The Treaty on the European Union (TEU), setting out the EU's aims and principles.
The Treaty on the Functioning of the European Union (TFEU), detailing how the EU achieves its aims.
The Charter of Fundamental Rights of the European Union (CFREU) acquired legal force and became part of the binding legal acts of European Union law.
The European Union acquired legal personality, and the European Community ceased to exist, streamlining the EU's legal structure.
The treaty emphasizes representative democracy, with citizens directly represented in the European Parliament and indirectly in the European Council.
The pillars of the Maastricht Union were abolished, simplifying the EU's structure and decision-making processes.
The Institutional Framework
Article 13 TEU lists the seven institutions of the EU:
The European Parliament
The European Council
The Council of Ministers
The European Commission
The Court of Auditors
The European Central Bank
The European Court of Justice
Institutions must act within the powers conferred by the treaties and practice mutual sincere cooperation, respecting the limits of their authority.
The European Council (Article 15 TEU – Articles 235-236 TFUE)
Distinct from the Council of Ministers and the Council of Europe.
First mentioned in the European Single Act (1986) and formally established as an institution by the Lisbon Treaty (2009).
Members: Heads of State or Government of the member states and the President of the European Council.
The President of the European Council presides over meetings, coordinates work, ensures consistency, and reports to the European Parliament.
The High Representative for the Common Foreign and Security Policy can participate in the works.
Main task: to provide the Union with the necessary political impetus for its development and define general political directions and priorities.
Does not exercise legislative functions.
Adopts conclusions and decisions, including decisions on the functioning of other institutions.
The EU Council is the highest political forum of the EU.
Plays a role in the procedure ex art. 7 TEU.
Partakes in the election/appointment of high-profile members of the institutions.
It can adopt decisions amending the Treaties (simplified procedures for Treaty amendments set by Article 48 TEU).
Decides primarily by consensus; however, sometimes decides by qualified majority.
The Council of Ministers (Articles 16 TUE and 237-243 TFEU)
Composed of one member for each member state at the ministerial level.
Variable composition: changes depending on the agenda.
Internal organization:
Working groups
COREPER 1 and COREPER 2 (Committee of Permanent Representatives)
Specific configurations
Council presidency (rotating presidency held by pre-established groups of three Member States for a period of eighteen months).
Main decisional body, sharing legislative power with the EU Parliament.
Approves the EU budget with the EU Parliament.
Has external action power, including negotiating and executing international agreements.
Main player in the Common Foreign and Security Policy field.
Voting procedures are complex, with a gradual replacement of unanimity with the majority principle.
Qualified majority voting: at least 55% of member states and 65% of the population.
Unanimity still required in some areas (CFSP, taxation).
EU Parliament (Article 14 TEU – Articles 223-236 TFEU)
Replaced the Assembly, ensuring democratic representation (indirectly under the Treaty of Rome).
The turning point was the election of the EU Parliament by direct universal suffrage decided in 1976 and with the first elections carried out in 1979.
Composed of representatives of the citizens of the European Union.
Mandate: 5 years.
The parliament shall approve the Commission and is empowered to do a motion of censure.
Electoral procedures vary by member state but adhere to principles such as single vote, elections on the same date, and proportional representation.
Number of MEPs is divided on a national basis, representation of citizens within the European Parliament is degressively proportional.
Legal regime: partly by the Treaties and partly by the internal regulation.
MEPs constitute political groups based on common political views (but some can be enrolled in any group).
Before any voting, groups shall examine the relations drafted by the Parliament Committees and can propose amendments.
However, the MEPs are free to vote differently.
President elected by Parliament (2,5 years mandate).
Today the EU Parliament is the co-legislator of the EU legal order together with the Council.
Also, every revision of the Treaty has progressively reinforced the role of the EU parliament since the Single European Act (1986).
There are, however, sectors where the role of the Parliament is still limited or absent (CFSP).
The parliament has also a role of political and democratic control. For example:
every six months the Council shall present to the Parliament a programme of its works as well as a relation at the end of each semester.
every year the Commission shall present to the Parliament an annual relation on the activity of the European Union.
The motion of censure (article 234 TFUE) is a very strong instrument vis-à-vis the Commission.
Any citizen of the Union, but also any natural or legal person residing in a Member State, has the right to submit petitions (article 227 TFEU) to the EU Parliament, which is therefore obliged to receive them.
An addition organ has been introduced with the Maastricht Treaty which is the European Ombudsman (articles 20, 24 and 228 TFEU).
The Commission (Article 17 TEU and Articles 244-250 TFEU)
The Commission shall promote the general interest of the Union.
It holds a kind of 'monopoly' with regard to the power of legislative initiative and the executive power.
The Commission is composed of one Commissioner per Member State, thus today 27 members.
Commissioners are chosen on the basis of their general competence and must offer significant guarantees of independence from States and private individuals.
High Representative for foreign affairs and security policy is Vice-President of the Commission.
The EU Competences
The Principle of Conferral (Article 5 TEU)
The limits of Union competences are governed by the principle of conferral.
Competences not conferred upon the Union in the Treaties remain with the Member States.
The Union has no competences of its own (no original competences), but only the specific competences conferred to it by the States.
The EU does not “steal” competences form the Member States, the Member States freely decide to let the Union do something that would otherwise fall within the national competences.
The Union has no general purpose: it can only intervene in those cases and in those ways in which the Member States allow it through the Treaties.
Being a direct expression of the principle of conferral, the need for the EU institutions
The Legal Basis
Identifying and making explicit the legal basis of their actions is a peculiarity of the Union's legal system.
These elements can be subject to judicial review by the Court of Justice, who can annul the act if the legal basis was wrongly identified.
When the Treaties offer, in the abstract, several legal basis to regulate a given matter, the legal basis which is most connected to the content and the purpose of the act shall be preferred following the centre of gravity theory.
Different Kind of Competences
The classification of competences in an 'ordered' manner is one of the novelties introduced by the Lisbon Treaty.
Exclusive competences (Article 3 TFEU)
The Union shall have exclusive competences in the following areas:
customs union
the establishing of the competition rules necessary for the functioning of the internal market
monetary policy for the Member states whose currency is the euro
the conservation of marine biological resources under the common fisheries policy
common commercial policy
The list of the exclusive competences provided by Article 3 TFEU is exhaustive in nature.
That a competence has been conferred to the EU on an exclusive basis means that, in the fields mentioned by Article 3 TEU, only and solely the Union may intervene.
Shared competences (Article 4 TFEU)
The Union shall share competence with the Member States where the Treaties confer on it a competence which does not relate to the areas referred to in Article 3 and 6.”
The shared competences category is a “catch-all” one.
That a competence is shared between the EU and the Member States means that, in theory, both the EU and the Member States can intervene.
However, this is true only if the process of integration and the EU legal order had been at “time zero”.
Indeed, the division of shared competences is governed by the so-called principle of pre-emption, according to which the Member States may only intervene if the Union has not yet regulated that matter.
Supporting competences (Articles 5 e 6 TFEU)
The Member States shall coordinate their economic policies within the Union.
The Union shall have competences to carry out actions to support, coordinate and supplement the actions of the Member States.
As the catch-all category is the one of the shared competencies, it is obvious that the lists provided by Articles 5 and 6 TFEU is exhaustive in nature.
Examples:
training and education
youth, sport, tourism
culture, industry
protection and improvement of human health
civil protection
administrative cooperation.
The Flexibility Clause (Article 352 TFEU)
If an action of the Union appears necessary, within the framework of the policies defined by the Treaties, to attain one of the objectives set out in the Treaties, without the Treaties having provided the necessary powers, the Council, acting unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament, shall adopt the appropriate provisions.
Actions based on Article 352 TFEU cannot lead to harmonisation of national rules.
The Theory of Implicit Powers
It is a theory created by the ECJ to allow the Union to exercise those powers which, although not conferred directly, are indispensable for the effective exercise of the competences that were conferred to it.
This theory is based on the general EU law principle of so-called effet utile.
The Principles Governing the Exercise of the Competences
The development in this field therefore occurred through the case law of the ECJ and the principles expressed where subsequently codified in the Treaties from the Maastricht one onwards.
The division of competence between the Union and the Member States and the exercise by the Union of its powers is governed by two fundamental principles, the principle of subsidiarity and the principle of proportionality.
The principle of proportionality always applies, whereas the principle of subsidiarity applies only in matters which are not exclusively attributed to the Union (Article 5(3) TFEU).
The Principle of Proportionality
Pursuant to the principle of proportionality, EU action must be limited to what is necessary to achieve the objectives of the Treaty.
A practical consequence is the general preference for the instrument of the directive instead of the regulation as a source of secondary legislation.
The Principle of Subsidiarity
According to Article 5(3) TFEU: “Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufÏciently achieved by Member States, either at a central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level”
The beneficiaries of the principle of subsidiarity are therefore the Member States, who see their sphere of sovereignty (in the areas of shared competences) protected against the adoption of acts without 'EU added value'.
Protocol 2 to the Lisbon Treaty
The Protocol on the application of the principles of subsidiarity and proportionality allows for an ex ante political control on the respect of the principles (and thus of national prerogatives).
The Commission, before exercising its power of legislative initiative, is obliged to undertake extensive and thorough consultations.
The Commission has the burden to “sate reasons” for every legislative proposal also with regard to compliance with the principle of subsidiarity.
Each legislative proposal must be sent by the Commission to the national Parliaments, which have 8 weeks to issue a reasoned opinion.
Yellow card:
1/3 negative votes (1/4 if Area of Freedom, Security and Justice) --> The Commission must reconsider the proposal and may maintain, amend or withdraw it.
Orange card:
majority negative votes --> The Commission must reconsider, it can keep the proposal, but if the majority of Members of Parliament or 55% of the Council are against the proposal, the proposal is abandoned.
Sources of European Law: Primary Law
Eu law sources could be reassumed in the following scheme and then analysed one by one.
Primary Law: the Treaties (TEU and TFEU) + general principles of EU law + CFREU
International Law: general international law + international agreements executed by the EU
Secondary Law: binding sources (regulations, directives and decisions) and non-binding sources (recommendations and opinions)
Other sources: soft laws such as guidelines and communications
The Treaties
Treaties provide the basic (but fundamental) legal regime to regulate the relations between the different subjects of the EU legal order.
They are the higher legal source of the EU legal order, in the hierarchy of the sources, therefore, they are above inter alia secondary law.
Treaties can confer rights (or impose obligations – see for example Articles 101 and 102 TFEU) not only to the institutions and the Member States but also upon individuals (Van Gend en Loos case).
Treaties confer the competences to the EU institutions and therefore confer legal force and effectivity to the acts of the institutions.
The Treaty on the European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) have the very same legal value.
TEU is composed by 55 articles divided in: preamble, common provisions, provisions on democratic principles, provision on the institutions, provision on enhanced cooperation.
TFEU is composed by 360 articles with a preamble, and it is divided in 7 different parts.
Revision of the Treaties
The revision procedures of the Treaties are three with different characteristics and different institutions involved:
The ordinary revision procedure
The simplified procedure n. 1: only for the third part of the TFEU
The simplified procedure n. 2: the so-called bridging or passerelle procedure
The Ordinary Revision Procedure
This is the more general and can always be applied by Convention or by Intergovernmental Conference.
The power of initiative, to propose amendment to the Treaties rest with the EU Parliament, the Commission or each Member State government.
The Simplified Procedure n. 1: only for the third part of the TFEU
This procedure cannot be used to increase or decrease the Union's powers or competences.
The power of initiatives rests with the EU Parliament, the Commission or each Member State government (as in the ordinary revision procedure)
The Simplified Procedure n. 2: The So-Called Bridging or Passerelle Procedure
This procedure allows the transition from situations that are now exceptional in the context of the Lisbon Treaty to what is the ordinary scenario.
It works by unanimity in the European Council after approval by the European Parliament and without the need of ratification by the member states. .
General Principles of the EU
The general principles of EU law are primary source of law.
Their function is to help to fill any legal gaps, they are parameters for interpretation of EU law (both the Treaties and secondary law) and also parameters for legitimacy of secondary legislation, i.e., they are binding not only for Member States but also for the EU institutions.
General principles are divided in those typical of EU law such as non-discrimination, subsidiarity, mutual recognition, loyal cooperation, effet utile and those common to national legal systems like legality, democracy, legitimate expectations, proportionality.
effet utile: Any disposition of EU law shall be interpreted and applied in the way that better allow the achievement of the goal set forth in it.
loyal cooperation: it is the obligation for Member States to take any measures of a general or particular nature appropriate to ensure the execution of obligations arising from the Treaties or resulting from the acts of the institutions.
legal certainty: it is the transparency of the administrative action which consists in a safeguard of individual legitimate expectation for example with regard to sudden change in legal discipline or the revocation/annulment of individual acts.
The Protection of Fundamental Rights
No disposition of the Treaty of Rome dealt with the protection of fundamental rights.
In the early 1960s, the Court of Justice afÏrmed the irrelevance at the Community level of fundamental rights and their protection.
Shortly after, the ECJ afÏrmed principles such as those of direct effect (1963 Van Gend en Loos Case) and, above all, of the primacy of Union law over national law, including constitutional law.
To cope with the position taken by the Constitutional courts (especially Italian and German), the Court of Justice changed its position.
In the late 1960s, the Court of Justice recognized that fundamental rights were (and still are) part of the general legal principles of EU law and that, as a consequence, the Court was going to ensure that EU institutions complied with them.
Most importantly, fundamental rights become a yardstick for the assessment of the legitimacy of the activity of the EU institutions and thus, of the validity of EU secondary law which means that if an act of secondary law does not comply with fundamental rights can be annulled and/or declared invalid by the ECJ.
The “sources of inspiration” used by the Court of Justice are the constitutional
The Origins of the European Integration Process
Understanding the origins of the EU is crucial to understanding its current functioning. The integration process was driven by a desire to move beyond nationalistic politics and prevent future conflicts in Europe.
Following WWII, many international organizations were formed to maintain peace. These organizations aimed to foster cooperation and prevent the recurrence of devastating wars.
The Council of Europe, based in Strasbourg, focuses on protecting fundamental rights but is distinct from the EU. It plays a significant role in promoting democracy and human rights across Europe.
Traditional international organizations rely on treaties without transferring innovative powers. These organizations typically operate on the basis of intergovernmental cooperation, where states retain their sovereignty.
The European Economic Communities (EEC) represent a different approach, characterized by the pooling of sovereignty and the creation of supranational institutions.
The Hague Conference (1948)
The Hague Conference in 1948 was the first major discussion on creating something new in Europe. It brought together politicians, thinkers, and individuals to discuss the future of Europe after the war.
Politicians and individuals debated three approaches:
Traditionalist: Creating an ordinary international organization, maintaining national sovereignty.
Federalist: Establishing a single federal state in Europe, abolishing national states. This approach advocated for a unified European government.
Functionalistic: A step-by-step integration process to create de facto solidarity. This approach focused on integrating specific sectors to foster cooperation.
The Shuman Declaration (1950)
The Shuman Declaration adopted the functionalistic approach with two goals:
Long-term: Establishing a supranational institution to oversee key sectors of the economy.
Short-term: Sharing coal and steel trade to avoid conflict, fostering economic interdependence.
The aim was to create an ever-closer union through gradual integration, building trust and cooperation over time.
The European Coal and Steel Community (1951)
The ECSC was the first outcome of the Shuman Declaration. It marked the beginning of European integration by pooling coal and steel resources.
Similarities to traditional organizations:
Limited scope: common market for coal and steel, focusing on specific industries.
Innovative features:
Complex institutional framework similar to today's EU, with supranational elements.
The European Commission (Higher Authority):
Supranational institution composed of independent members acting in the interests of the European Community. Commissioners are appointed to represent the common European interest.
Currently composed of one member from each member state, ensuring representation from all nations.
The Council:
Composed of representatives (ministers) from each member state. Ministers represent their national interests within the Council.
Represents the intergovernmental approach, where national governments play a key role.
The Assembly (now European Parliament):
Initially composed of members from national parliaments (indirect representation).
The European Court of Justice:
Ensures the treaty's effectiveness and compliance by member states, resolving disputes and interpreting EU law.
EURATOM (1957)
EURATOM dealt with atomic energy, promoting its peaceful use and research.
Similar to traditional organizations: focused on a specific topic, coordinating efforts in the field of atomic energy.
Distinctive feature: no expiry date, indicating a desire for long-lasting cooperation (unlike the ECSC, which was set to expire after 50 years).
The European Economic Community (1957)
The EEC aimed to avoid conflicts by increasing trade and economic integration.
Based on an economic approach with limited competences compared to the EU. The EEC focused on creating a common market and promoting economic growth.
Established the common market through four fundamental freedoms:
Free movement of goods, allowing goods to circulate freely between member states.
Free movement of services, enabling service providers to offer their services across borders.
Free movement of capital, facilitating the flow of investments and financial transactions.
Freedom of establishment, allowing individuals and companies to establish businesses in any member state.
Initially, these freedoms applied only to economic operators, gradually expanding to include all citizens.
Competition law was included to prevent private undertakings from jeopardizing the fundamental freedoms, ensuring a level playing field.
Economic fundamental freedoms are addressed to member states, requiring them to remove barriers to trade and economic activity.
Competition law deals with anticompetitive agreements and abusive conducts, promoting fair competition.
The Merger Treaty (1967)
Unified the institutional frameworks of the EEC, ECSC, and EURATOM to reduce costs and complexity, streamlining decision-making processes.
Prior to the treaty, each community had its own separate institutions (councils, assemblies, courts, etc.).
First Setbacks in the Integration Process
The failure of the CED:
A common European defense project failed due to concerns over national sovereignty, highlighting the challenges of integrating defense policies.
The “empty chair” crisis and the Luxembourg Compromise (1966):
France, under Charles de Gaulle, opposed further integration and boycotted Council meetings, leading to a political crisis.
The Council required unanimity for votes, leading to a standstill, paralyzing decision-making.
The Luxembourg Compromise informally recognized the rule of consensus, requiring continued work until everyone agreed. This compromise aimed to address concerns about national sovereignty.
Highlighted the difficulty of positive integration due to the unanimity rule, demonstrating the challenges of reaching agreements on new policies.
Positive and Negative Integration
Positive integration: Creating new rules and policies at the European level.
Negative integration: Removing existing rules and barriers to trade and economic activity.
Due to the unanimity rule, positive integration was difficult in the early years, limiting the scope for new EU-level policies.
The European Court of Justice took the lead through the preliminary reference procedure, interpreting EU law and ensuring its uniform application.
The ECJ dismantled national legislation that limited fundamental freedoms, promoting the free movement of goods, services, capital, and people.
The Single European Act (1986)
The Single European Act primarily aimed to foster the development of the internal market, removing remaining barriers to trade and creating a single economic space.
Amendments to the Treaty of Rome included:
Replacing unanimity with qualified majority voting in some areas related to the internal market, speeding up decision-making.
Reinforcing the European Parliament, which began direct elections in 1979, increasing its democratic legitimacy.
Introducing new procedures (cooperation and consultation) to increase Parliament's involvement in decision-making.
The Maastricht Treaty (1992)
The Maastricht Treaty created the European Union with a three-pillar structure:
The European Community, dealing with economic, social, and environmental policies.
The Common Foreign and Security Policy (CFSP), coordinating foreign policy among member states.
Justice and Home Affairs (JHA), addressing issues such as immigration, asylum, and crime.
The structure reflected a division between the “community method” and traditional intergovernmental cooperation, balancing supranational and intergovernmental approaches.
Member states were hesitant to cede powers related to national sovereignty, particularly in areas such as defense and foreign policy.
The treaty signified a shift from a purely economic focus to broader competences, including the creation of EU citizenship, giving individuals rights and responsibilities as EU citizens.
The community method is stronger level of cooperation than the intergovernmental one, with more supranational decision-making.
Community Method vs. Intergovernmental Cooperation
Community Method:
Institutions act in the interest of the community, prioritizing the common European interest.
Unanimity is reduced, with qualified majority voting used, enabling faster decision-making.
European institutions adopt binding legal acts, and the European Court of Justice ensures judicial review, ensuring compliance with EU law.
Intergovernmental Cooperation:
Traditional international approach, where member states retain control over decision-making.
Qualified majority voting:
A double standard considering both the number of member states and the population of each state, ensuring fair representation.
Significantly impacts national sovereignty, requiring member states to cede some control to the EU.
The Amsterdam Treaty (1997)
The Amsterdam Treaty was motivated by the end of the Cold War and the potential membership of former Soviet states, preparing the EU for enlargement.
A new third pillar was introduced: cooperation in police and criminal matters, enhancing cooperation in law enforcement.
Enhanced cooperation was introduced, allowing a smaller group of member states to proceed with initiatives when unanimity could not be reached, fostering flexibility.
The treaty formulated the fundamental principles of the EU (democracy, human rights) and created a procedure (Art. 7 TEU) to address breaches of these principles by member states, safeguarding core values.
The Treaty of Nice (2001)
The Treaty of Nice adopted the Charter on the Fundamental Rights of the European Union, a codification of existing fundamental rights within the EU legal order, ensuring their protection.
Fundamental rights are considered general principles of EU law and thus primary law, carrying significant legal weight.
Treaty on the European Constitution (2004)
The Treaty establishing a Constitution for Europe failed ratification in the Netherlands and France, due to concerns about national sovereignty and the EU's direction.
Symbolic elements such as the EU flag and anthem were included, but the treaty was ultimately unsuccessful.
The Treaty of Lisbon (2009)
The Lisbon Treaty is composed of two treaties:
The Treaty on the European Union (TEU), setting out the EU's aims and principles.
The Treaty on the Functioning of the European Union (TFEU), detailing how the EU achieves its aims.
The Charter of Fundamental Rights of the European Union (CFREU) acquired legal force and became part of the binding legal acts of European Union law.
The European Union acquired legal personality, and the European Community ceased to exist, streamlining the EU's legal structure.
The treaty emphasizes representative democracy, with citizens directly represented in the European Parliament and indirectly in the European Council.
The pillars of the Maastricht Union were abolished, simplifying the EU's structure and decision-making processes.
The Institutional Framework
Article 13 TEU lists the seven institutions of the EU:
The European Parliament
The European Council
The Council of Ministers
The European Commission
The Court of Auditors
The European Central Bank
The European Court of Justice
Institutions must act within the powers conferred by the treaties and practice mutual sincere cooperation, respecting the limits of their authority.
The European Council (Article 15 TEU – Articles 235-236 TFUE)
Distinct from the Council of Ministers and the Council of Europe.
First mentioned in the European Single Act (1986) and formally established as an institution by the Lisbon Treaty (2009).
Members: Heads of State or Government of the member states and the President of the European Council.
The President of the European Council presides over meetings, coordinates work, ensures consistency, and reports to the European Parliament.
The High Representative for the Common Foreign and Security Policy can participate in the works.
Main task: to provide the Union with the necessary political impetus for its development and define general political directions and priorities.
Does not exercise legislative functions.
Adopts conclusions and decisions, including decisions on the functioning of other institutions.
The EU Council is the highest political forum of the EU.
Plays a role in the procedure ex art. 7 TEU.
Partakes in the election/appointment of high-profile members of the institutions.
It can adopt decisions amending the Treaties (simplified procedures for Treaty amendments set by Article 48 TEU).
Decides primarily by consensus; however, sometimes decides by qualified majority.
The Council of Ministers (Articles 16 TUE and 237-243 TFEU)
Composed of one member for each member state at the ministerial level.
Variable composition: changes depending on the agenda.
Internal organization:
Working groups
COREPER 1 and COREPER 2 (Committee of Permanent Representatives)
Specific configurations
Council presidency (rotating presidency held by pre-established groups of three Member States for a period of eighteen months).
Main decisional body, sharing legislative power with the EU Parliament.
Approves the EU budget with the EU Parliament.
Has external action power, including negotiating and executing international agreements.
Main player in the Common Foreign and Security Policy field.
Voting procedures are complex, with a gradual replacement of unanimity with the majority principle.
Qualified majority voting: at least 55% of member states and 65% of the population.
Unanimity still required in some areas (CFSP, taxation).
EU Parliament (Article 14 TEU – Articles 223-236 TFEU)
Replaced the Assembly, ensuring democratic representation (indirectly under the Treaty of Rome).
The turning point was the election of the EU Parliament by direct universal suffrage decided in 1976 and with the first elections carried out in 1979.
Composed of representatives of the citizens of the European Union.
Mandate: 5 years.
The parliament shall approve the Commission and is empowered to do a motion of censure.
Electoral procedures vary by member state but adhere to principles such as single vote, elections on the same date, and proportional representation.
Number of MEPs is divided on a national basis, representation of citizens within the European Parliament is degressively proportional.
Legal regime: partly by the Treaties and partly by the internal regulation.
MEPs constitute political groups based on common political views (but some can be enrolled in any group).
Before any voting, groups shall examine the relations drafted by the Parliament Committees and can propose amendments.
However, the MEPs are free to vote differently.
President elected by Parliament (2,5 years mandate).
Today the EU Parliament is the co-legislator of the EU legal order together with the Council.
Also, every revision of the Treaty has progressively reinforced the role of the EU parliament since the Single European Act (1986).
There are, however, sectors where the role of the Parliament is still limited or absent (CFSP).
The parliament has also a role of political and democratic control. For example:
every six months the Council shall present to the Parliament a programme of its works as well as a relation at the end of each semester.
every year the Commission shall present to the Parliament an annual relation on the activity of the European Union.
The motion of censure (article 234 TFUE) is a very strong instrument vis-à-vis the Commission.
Any citizen of the Union, but also any natural or legal person residing in a Member State, has the right to submit petitions (article 227 TFEU) to the EU Parliament, which is therefore obliged to receive them.
An addition organ has been introduced with the Maastricht Treaty which is the European Ombudsman (articles 20, 24 and 228 TFEU).
The Commission (Article 17 TEU and Articles 244-250 TFEU)
The Commission shall promote the general interest of the Union.
It holds a kind of 'monopoly' with regard to the power of legislative initiative and the executive power.
The Commission is composed of one Commissioner per Member State, thus today 27 members.
Commissioners are chosen on the basis of their general competence and must offer significant guarantees of independence from States and private individuals.
High Representative for foreign affairs and security policy is Vice-President of the Commission.
The EU Competences
The Principle of Conferral (Article 5 TEU)
The limits of Union competences are governed by the principle of conferral.
Competences not conferred upon the Union in the Treaties remain with the Member States.
The Union has no competences of its own (no original competences), but only the specific competences conferred to it by the States.
The EU does not “steal” competences form the Member States, the Member States freely decide to let the Union do something that would otherwise fall within the national competences.
The Union has no general purpose: it can only intervene in those cases and in those ways in which the Member States allow it through the Treaties.
Being a direct expression of the principle of conferral, the need for the EU institutions
The Legal Basis
Identifying and making explicit the legal basis of their actions is a peculiarity of the Union's legal system.
These elements can be subject to judicial review by the Court of Justice, who can annul the act if the legal basis was wrongly identified.
When the Treaties offer, in the abstract, several legal basis to regulate a given matter, the legal basis which is most connected to the content and the purpose of the act shall be preferred following the centre of gravity theory.
Different Kind of Competences
The classification of competences in an 'ordered' manner is one of the novelties introduced by the Lisbon Treaty.
Exclusive competences (Article 3 TFEU)
The Union shall have exclusive competences in the following areas:
customs union
the establishing of the competition rules necessary for the functioning of the internal market
monetary policy for the Member states whose currency is the euro
the conservation of marine biological resources under the common fisheries policy
common commercial policy
The list of the exclusive competences provided by Article 3 TFEU is exhaustive in nature.
That a competence has been conferred to the EU on an exclusive basis means that, in the fields mentioned by Article 3 TEU, only and solely the Union may intervene.
Shared competences (Article 4 TFEU)
The Union shall share competence with the Member States where the Treaties confer on it a competence which does not relate to the areas referred to in Article 3 and 6.”
The shared competences category is a “catch-all” one.
That a competence is shared between the EU and the Member States means that, in theory, both the EU and the Member States can intervene.
However, this is true only if the process of integration and the EU legal order had been at “time zero”.
Indeed, the division of shared competences is governed by the so-called principle of pre-emption, according to which the Member States may only intervene if the Union has not yet regulated that matter.
Supporting competences (Articles 5 e 6 TFEU)
The Member States shall coordinate their economic policies within the Union.
The Union shall have competences to carry out actions to support, coordinate and supplement the actions of the Member States.
As the catch-all category is the one of the shared competencies, it is obvious that the lists provided by Articles 5 and 6 TFEU is exhaustive in nature.
Examples:
training and education
youth, sport, tourism
culture, industry
protection and improvement of human health
civil protection
administrative cooperation.
The Flexibility Clause (Article 352 TFEU)
If an action of the Union appears necessary, within the framework of the policies defined by the Treaties, to attain one of the objectives set out in the Treaties, without the Treaties having provided the necessary powers, the Council, acting unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament, shall adopt the appropriate provisions.
Actions based on Article 352 TFEU cannot lead to harmonisation of national rules.
The Theory of Implicit Powers
It is a theory created by the ECJ to allow the Union to exercise those powers which, although not conferred directly, are indispensable for the effective exercise of the competences that were conferred to it.
This theory is based on the general EU law principle of so-called effet utile.
The Principles Governing the Exercise of the Competences
The development in this field therefore occurred through the case law of the ECJ and the principles expressed where subsequently codified in the Treaties from the Maastricht one onwards.
The division of competence between the Union and the Member States and the exercise by the Union of its powers is governed by two fundamental principles, the principle of subsidiarity and the principle of proportionality.
The principle of proportionality always applies, whereas the principle of subsidiarity applies only in matters which are not exclusively attributed to the Union (Article 5(3) TFEU).
The Principle of Proportionality
Pursuant to the principle of proportionality, EU action must be limited to what is necessary to achieve the objectives of the Treaty.
A practical consequence is the general preference for the instrument of the directive instead of the regulation as a source of secondary legislation.
The Principle of Subsidiarity
According to Article 5(3) TFEU: “Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufÏciently achieved by Member States, either at a central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level”
The beneficiaries of the principle of subsidiarity are therefore the Member States, who see their sphere of sovereignty (in the areas of shared competences) protected against the adoption of acts without 'EU added value'.
Protocol 2 to the Lisbon Treaty
The Protocol on the application of the principles of subsidiarity and proportionality allows for an ex ante political control on the respect of the principles (and thus of national prerogatives).
The Commission, before exercising its power of legislative initiative, is obliged to undertake extensive and thorough consultations.
The Commission has the burden to “sate reasons” for every legislative proposal also with regard to compliance with the principle of subsidiarity.
Each legislative proposal must be sent by the Commission to the national Parliaments, which have 8 weeks to issue a reasoned opinion.
Yellow card:
1/3 negative votes (1/4 if Area of Freedom, Security and Justice) --> The Commission must reconsider the proposal and may maintain, amend or withdraw it.
Orange card:
majority negative votes --> The Commission must reconsider, it can keep the proposal, but if the majority of Members of Parliament or 55% of the Council are against the proposal, the proposal is abandoned.
Sources of European Law: Primary Law
Eu law sources could be reassumed in the following scheme and then analysed one by one.
Primary Law: the Treaties (TEU and TFEU) + general principles of EU law + CFREU
International Law: general international law + international agreements executed by the EU
Secondary Law: binding sources (regulations, directives and decisions) and non-binding sources (recommendations and opinions)
Other sources: soft laws such as guidelines and communications
The Treaties
Treaties provide the basic (but fundamental) legal regime to regulate the relations between the different subjects of the EU legal order.
They are the higher legal source of the EU legal order, in the hierarchy of the sources, therefore, they are above inter alia secondary law.
Treaties can confer rights (or impose obligations – see for example Articles 101 and 102 TFEU) not only to the institutions and the Member States but also upon individuals (Van Gend en Loos case).
Treaties confer the competences to the EU institutions and therefore confer legal force and effectivity to the acts of the institutions.
The Treaty on the European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) have the very same legal value.
TEU is composed by 55 articles divided in: preamble, common provisions, provisions on democratic principles, provision on the institutions, provision on enhanced cooperation.
TFEU is composed by 360 articles with a preamble, and it is divided in 7 different parts.
Revision of the Treaties
The revision procedures of the Treaties are three with different characteristics and different institutions involved:
The ordinary revision procedure
The simplified procedure n. 1: only for the third part of the TFEU
The simplified procedure n. 2: the so-called bridging or passerelle procedure
The Ordinary Revision Procedure
This is the more general and can always be applied by Convention or by Intergovernmental Conference.
The power of initiative, to propose amendment to the Treaties rest with the EU Parliament, the Commission or each Member State government.
The Simplified Procedure n. 1: only for the third part of the TFEU
This procedure cannot be used to increase or decrease the Union's powers or competences.
The power of initiatives rests with the EU Parliament, the Commission or each Member State government (as in the ordinary revision procedure)
The Simplified Procedure n. 2: The So-Called Bridging or Passerelle Procedure
This procedure allows the transition from situations that are now exceptional in the context of the Lisbon Treaty to what is the ordinary scenario.
It works by unanimity in the European Council after approval by the European Parliament and without the need of ratification by the member states. .
General Principles of the EU
The general principles of EU law are primary source of law.
Their function is to help to fill any legal gaps, they are parameters for interpretation of EU law (both the Treaties and secondary law) and also parameters for legitimacy of secondary legislation, i.e., they are binding not only for Member States but also for the EU institutions.
General principles are divided in those typical of EU law such as non-discrimination, subsidiarity, mutual recognition, loyal cooperation, effet utile and those common to national legal systems like legality, democracy, legitimate expectations, proportionality.
effet utile: Any disposition of EU law shall be interpreted and applied in the way that better allow the achievement of the goal set forth in it.
loyal cooperation: it is the obligation for Member States to take any measures of a general or particular nature appropriate to ensure the execution of obligations arising from the Treaties or resulting from the acts of the institutions.
legal certainty: it is the transparency of the administrative action which consists in a safeguard of individual legitimate expectation for example with regard to sudden change in legal discipline or the revocation/annulment of individual acts.
The Protection of Fundamental Rights
No disposition of the Treaty of Rome dealt with the protection of fundamental rights.
In the early 1960s, the Court of Justice afÏrmed the irrelevance at the Community level of fundamental rights and their protection.
Shortly after, the ECJ afÏrmed principles such as those of direct effect (1963 Van Gend en Loos Case) and, above all, of the primacy of Union law over national law, including constitutional law.
To cope with the position taken by the Constitutional courts (especially Italian and German), the Court of Justice changed its position.
In the late 1960s, the Court of Justice recognized that fundamental rights were (and still are) part of the general legal principles of EU law and that, as a consequence, the Court was going to ensure that EU institutions complied with them.
Most importantly, fundamental rights become a yardstick for the assessment of the legitimacy of the activity of the EU institutions and thus, of the validity of EU secondary law which means that if an act of secondary law does not comply with fundamental rights can be annulled and/or declared invalid by the ECJ.
The “sources of inspiration” used by the Court of Justice are the constitutional
The Origins of the European Integration Process
Understanding the origins of the EU is crucial to understanding its current functioning. The integration process was driven by a desire to move beyond nationalistic politics and prevent future conflicts in Europe.
Following WWII, many international organizations were formed to maintain peace. These organizations aimed to foster cooperation and prevent the recurrence of devastating wars.
The Council of Europe, based in Strasbourg, focuses on protecting fundamental rights but is distinct from the EU. It plays a significant role in promoting democracy and human rights across Europe.
Traditional international organizations rely on treaties without transferring innovative powers. These organizations typically operate on the basis of intergovernmental cooperation, where states retain their sovereignty.
The European Economic Communities (EEC) represent a different approach, characterized by the pooling of sovereignty and the creation of supranational institutions.
The Hague Conference (1948)
The Hague Conference in 1948 was the first major discussion on creating something new in Europe. It brought together politicians, thinkers, and individuals to discuss the future of Europe after the war.
Politicians and individuals debated three approaches:
Traditionalist: Creating an ordinary international organization, maintaining national sovereignty.
Federalist: Establishing a single federal state in Europe, abolishing national states. This approach advocated for a unified European government.
Functionalistic: A step-by-step integration process to create de facto solidarity. This approach focused on integrating specific sectors to foster cooperation.
The Shuman Declaration (1950)
The Shuman Declaration adopted the functionalistic approach with two goals:
Long-term: Establishing a supranational institution to oversee key sectors of the economy.
Short-term: Sharing coal and steel trade to avoid conflict, fostering economic interdependence.
The aim was to create an ever-closer union through gradual integration, building trust and cooperation over time.
The European Coal and Steel Community (1951)
The ECSC was the first outcome of the Shuman Declaration. It marked the beginning of European integration by pooling coal and steel resources.
Similarities to traditional organizations:
Limited scope: common market for coal and steel, focusing on specific industries.
Innovative features:
Complex institutional framework similar to today's EU, with supranational elements.
The European Commission (Higher Authority):
Supranational institution composed of independent members acting in the interests of the European Community. Commissioners are appointed to represent the common European interest.
Currently composed of one member from each member state, ensuring representation from all nations.
The Council:
Composed of representatives (ministers) from each member state. Ministers represent their national interests within the Council.
Represents the intergovernmental approach, where national governments play a key role.
The Assembly (now European Parliament):
Initially composed of members from national parliaments (indirect representation).
The European Court of Justice:
Ensures the treaty's effectiveness and compliance by member states, resolving disputes and interpreting EU law.
EURATOM (1957)
EURATOM dealt with atomic energy, promoting its peaceful use and research.
Similar to traditional organizations: focused on a specific topic, coordinating efforts in the field of atomic energy.
Distinctive feature: no expiry date, indicating a desire for long-lasting cooperation (unlike the ECSC, which was set to expire after 50 years).
The European Economic Community (1957)
The EEC aimed to avoid conflicts by increasing trade and economic integration.
Based on an economic approach with limited competences compared to the EU. The EEC focused on creating a common market and promoting economic growth.
Established the common market through four fundamental freedoms:
Free movement of goods, allowing goods to circulate freely between member states.
Free movement of services, enabling service providers to offer their services across borders.
Free movement of capital, facilitating the flow of investments and financial transactions.
Freedom of establishment, allowing individuals and companies to establish businesses in any member state.
Initially, these freedoms applied only to economic operators, gradually expanding to include all citizens.
Competition law was included to prevent private undertakings from jeopardizing the fundamental freedoms, ensuring a level playing field.
Economic fundamental freedoms are addressed to member states, requiring them to remove barriers to trade and economic activity.
Competition law deals with anticompetitive agreements and abusive conducts, promoting fair competition.
The Merger Treaty (1967)
Unified the institutional frameworks of the EEC, ECSC, and EURATOM to reduce costs and complexity, streamlining decision-making processes.
Prior to the treaty, each community had its own separate institutions (councils, assemblies, courts, etc.).
First Setbacks in the Integration Process
The failure of the CED:
A common European defense project failed due to concerns over national sovereignty, highlighting the challenges of integrating defense policies.
The “empty chair” crisis and the Luxembourg Compromise (1966):
France, under Charles de Gaulle, opposed further integration and boycotted Council meetings, leading to a political crisis.
The Council required unanimity for votes, leading to a standstill, paralyzing decision-making.
The Luxembourg Compromise informally recognized the rule of consensus, requiring continued work until everyone agreed. This compromise aimed to address concerns about national sovereignty.
Highlighted the difficulty of positive integration due to the unanimity rule, demonstrating the challenges of reaching agreements on new policies.
Positive and Negative Integration
Positive integration: Creating new rules and policies at the European level.
Negative integration: Removing existing rules and barriers to trade and economic activity.
Due to the unanimity rule, positive integration was difficult in the early years, limiting the scope for new EU-level policies.
The European Court of Justice took the lead through the preliminary reference procedure, interpreting EU law and ensuring its uniform application.
The ECJ dismantled national legislation that limited fundamental freedoms, promoting the free movement of goods, services, capital, and people.
The Single European Act (1986)
The Single European Act primarily aimed to foster the development of the internal market, removing remaining barriers to trade and creating a single economic space.
Amendments to the Treaty of Rome included:
Replacing unanimity with qualified majority voting in some areas related to the internal market, speeding up decision-making.
Reinforcing the European Parliament, which began direct elections in 1979, increasing its democratic legitimacy.
Introducing new procedures (cooperation and consultation) to increase Parliament's involvement in decision-making.
The Maastricht Treaty (1992)
The Maastricht Treaty created the European Union with a three-pillar structure:
The European Community, dealing with economic, social, and environmental policies.
The Common Foreign and Security Policy (CFSP), coordinating foreign policy among member states.
Justice and Home Affairs (JHA), addressing issues such as immigration, asylum, and crime.
The structure reflected a division between the “community method” and traditional intergovernmental cooperation, balancing supranational and intergovernmental approaches.
Member states were hesitant to cede powers related to national sovereignty, particularly in areas such as defense and foreign policy.
The treaty signified a shift from a purely economic focus to broader competences, including the creation of EU citizenship, giving individuals rights and responsibilities as EU citizens.
The community method is stronger level of cooperation than the intergovernmental one, with more supranational decision-making.
Community Method vs. Intergovernmental Cooperation
Community Method:
Institutions act in the interest of the community, prioritizing the common European interest.
Unanimity is reduced, with qualified majority voting used, enabling faster decision-making.
European institutions adopt binding legal acts, and the European Court of Justice ensures judicial review, ensuring compliance with EU law.
Intergovernmental Cooperation:
Traditional international approach, where member states retain control over decision-making.
Qualified majority voting:
A double standard considering both the number of member states and the population of each state, ensuring fair representation.
Significantly impacts national sovereignty, requiring member states to cede some control to the EU.
The Amsterdam Treaty (1997)
The Amsterdam Treaty was motivated by the end of the Cold War and the potential membership of former Soviet states, preparing the EU for enlargement.
A new third pillar was introduced: cooperation in police and criminal matters, enhancing cooperation in law enforcement.
Enhanced cooperation was introduced, allowing a smaller group of member states to proceed with initiatives when unanimity could not be reached, fostering flexibility.
The treaty formulated the fundamental principles of the EU (democracy, human rights) and created a procedure (Art. 7 TEU) to address breaches of these principles by member states, safeguarding core values.
The Treaty of Nice (2001)
The Treaty of Nice adopted the Charter on the Fundamental Rights of the European Union, a codification of existing fundamental rights within the EU legal order, ensuring their protection.
Fundamental rights are considered general principles of EU law and thus primary law, carrying significant legal weight.
Treaty on the European Constitution (2004)
The Treaty establishing a Constitution for Europe failed ratification in the Netherlands and France, due to concerns about national sovereignty and the EU's direction.
Symbolic elements such as the EU flag and anthem were included, but the treaty was ultimately unsuccessful.
The Treaty of Lisbon (2009)
The Lisbon Treaty is composed of two treaties:
The Treaty on the European Union (TEU), setting out the EU's aims and principles.
The Treaty on the Functioning of the European Union (TFEU), detailing how the EU achieves its aims.
The Charter of Fundamental Rights of the European Union (CFREU) acquired legal force and became part of the binding legal acts of European Union law.
The European Union acquired legal personality, and the European Community ceased to exist, streamlining the EU's legal structure.
The treaty emphasizes representative democracy, with citizens directly represented in the European Parliament and indirectly in the European Council.
The pillars of the Maastricht Union were abolished, simplifying the EU's structure and decision-making processes.
The Institutional Framework
Article 13 TEU lists the seven institutions of the EU:
The European Parliament
The European Council
The Council of Ministers
The European Commission
The Court of Auditors
The European Central Bank
The European Court of Justice
Institutions must act within the powers conferred by the treaties and practice mutual sincere cooperation, respecting the limits of their authority.
The European Council (Article 15 TEU – Articles 235-236 TFUE)
Distinct from the Council of Ministers and the Council of Europe.
First mentioned in the European Single Act (1986) and formally established as an institution by the Lisbon Treaty (2009).
Members: Heads of State or Government of the member states and the President of the European Council.
The President of the European Council presides over meetings, coordinates work, ensures consistency, and reports to the European Parliament.
The High Representative for the Common Foreign and Security Policy can participate in the works.
Main task: to provide the Union with the necessary political impetus for its development and define general political directions and priorities.
Does not exercise legislative functions.
Adopts conclusions and decisions, including decisions on the functioning of other institutions.
The EU Council is the highest political forum of the EU.
Plays a role in the procedure ex art. 7 TEU.
Partakes in the election/appointment of high-profile members of the institutions.
It can adopt decisions amending the Treaties (simplified procedures for Treaty amendments set by Article 48 TEU).
Decides primarily by consensus; however, sometimes decides by qualified majority.
The Council of Ministers (Articles 16 TUE and 237-243 TFEU)
Composed of one member for each member state at the ministerial level.
Variable composition: changes depending on the agenda.
Internal organization:
Working groups
COREPER 1 and COREPER 2 (Committee of Permanent Representatives)
Specific configurations
Council presidency (rotating presidency held by pre-established groups of three Member States for a period of eighteen months).
Main decisional body, sharing legislative power with the EU Parliament.
Approves the EU budget with the EU Parliament.
Has external action power, including negotiating and executing international agreements.
Main player in the Common Foreign and Security Policy field.
Voting procedures are complex, with a gradual replacement of unanimity with the majority principle.
Qualified majority voting: at least 55% of member states and 65% of the population.
Unanimity still required in some areas (CFSP, taxation).
EU Parliament (Article 14 TEU – Articles 223-236 TFEU)
Replaced the Assembly, ensuring democratic representation (indirectly under the Treaty of Rome).
The turning point was the election of the EU Parliament by direct universal suffrage decided in 1976 and with the first elections carried out in 1979.
Composed of representatives of the citizens of the European Union.
Mandate: 5 years.
The parliament shall approve the Commission and is empowered to do a motion of censure.
Electoral procedures vary by member state but adhere to principles such as single vote, elections on the same date, and proportional representation.
Number of MEPs is divided on a national basis, representation of citizens within the European Parliament is degressively proportional.
Legal regime: partly by the Treaties and partly by the internal regulation.
MEPs constitute political groups based on common political views (but some can be enrolled in any group).
Before any voting, groups shall examine the relations drafted by the Parliament Committees and can propose amendments.
However, the MEPs are free to vote differently.
President elected by Parliament (2,5 years mandate).
Today the EU Parliament is the co-legislator of the EU legal order together with the Council.
Also, every revision of the Treaty has progressively reinforced the role of the EU parliament since the Single European Act (1986).
There are, however, sectors where the role of the Parliament is still limited or absent (CFSP).
The parliament has also a role of political and democratic control. For example:
every six months the Council shall present to the Parliament a programme of its works as well as a relation at the end of each semester.
every year the Commission shall present to the Parliament an annual relation on the activity of the European Union.
The motion of censure (article 234 TFUE) is a very strong instrument vis-à-vis the Commission.
Any citizen of the Union, but also any natural or legal person residing in a Member State, has the right to submit petitions (article 227 TFEU) to the EU Parliament, which is therefore obliged to receive them.
An addition organ has been introduced with the Maastricht Treaty which is the European Ombudsman (articles 20, 24 and 228 TFEU).
The Commission (Article 17 TEU and Articles 244-250 TFEU)
The Commission shall promote the general interest of the Union.
It holds a kind of 'monopoly' with regard to the power of legislative initiative and the executive power.
The Commission is composed of one Commissioner per Member State, thus today 27 members.
Commissioners are chosen on the basis of their general competence and must offer significant guarantees of independence from States and private individuals.
High Representative for foreign affairs and security policy is Vice-President of the Commission.
The EU Competences
The Principle of Conferral (Article 5 TEU)
The limits of Union competences are governed by the principle of conferral.
Competences not conferred upon the Union in the Treaties remain with the Member States.
The Union has no competences of its own (no original competences), but only the specific competences conferred to it by the States.
The EU does not “steal” competences form the Member States, the Member States freely decide to let the Union do something that would otherwise fall within the national competences.
The Union has no general purpose: it can only intervene in those cases and in those ways in which the Member States allow it through the Treaties.
Being a direct expression of the principle of conferral, the need for the EU institutions
The Legal Basis
Identifying and making explicit the legal basis of their actions is a peculiarity of the Union's legal system.
These elements can be subject to judicial review by the Court of Justice, who can annul the act if the legal basis was wrongly identified.
When the Treaties offer, in the abstract, several legal basis to regulate a given matter, the legal basis which is most connected to the content and the purpose of the act shall be preferred following the centre of gravity theory.
Different Kind of Competences
The classification of competences in an 'ordered' manner is one of the novelties introduced by the Lisbon Treaty.
Exclusive competences (Article 3 TFEU)
The Union shall have exclusive competences in the following areas:
customs union
the establishing of the competition rules necessary for the functioning of the internal market
monetary policy for the Member states whose currency is the euro
the conservation of marine biological resources under the common fisheries policy
common commercial policy
The list of the exclusive competences provided by Article 3 TFEU is exhaustive in nature.
That a competence has been conferred to the EU on an exclusive basis means that, in the fields mentioned by Article 3 TEU, only and solely the Union may intervene.
Shared competences (Article 4 TFEU)
The Union shall share competence with the Member States where the Treaties confer on it a competence which does not relate to the areas referred to in Article 3 and 6.”
The shared competences category is a “catch-all” one.
That a competence is shared between the EU and the Member States means that, in theory, both the EU and the Member States can intervene.
However, this is true only if the process of integration and the EU legal order had been at “time zero”.
Indeed, the division of shared competences is governed by the so-called principle of pre-emption, according to which the Member States may only intervene if the Union has not yet regulated that matter.
Supporting competences (Articles 5 e 6 TFEU)
The Member States shall coordinate their economic policies within the Union.
The Union shall have competences to carry out actions to support, coordinate and supplement the actions of the Member States.
As the catch-all category is the one of the shared competencies, it is obvious that the lists provided by Articles 5 and 6 TFEU is exhaustive in nature.
Examples:
training and education
youth, sport, tourism
culture, industry
protection and improvement of human health
civil protection
administrative cooperation.
The Flexibility Clause (Article 352 TFEU)
If an action of the Union appears necessary, within the framework of the policies defined by the Treaties, to attain one of the objectives set out in the Treaties, without the Treaties having provided the necessary powers, the Council, acting unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament, shall adopt the appropriate provisions.
Actions based on Article 352 TFEU cannot lead to harmonisation of national rules.
The Theory of Implicit Powers
It is a theory created by the ECJ to allow the Union to exercise those powers which, although not conferred directly, are indispensable for the effective exercise of the competences that were conferred to it.
This theory is based on the general EU law principle of so-called effet utile.
The Principles Governing the Exercise of the Competences
The development in this field therefore occurred through the case law of the ECJ and the principles expressed where subsequently codified in the Treaties from the Maastricht one onwards.
The division of competence between the Union and the Member States and the exercise by the Union of its powers is governed by two fundamental principles, the principle of subsidiarity and the principle of proportionality.
The principle of proportionality always applies, whereas the principle of subsidiarity applies only in matters which are not exclusively attributed to the Union (Article 5(3) TFEU).
The Principle of Proportionality
Pursuant to the principle of proportionality, EU action must be limited to what is necessary to achieve the objectives of the Treaty.
A practical consequence is the general preference for the instrument of the directive instead of the regulation as a source of secondary legislation.
The Principle of Subsidiarity
According to Article 5(3) TFEU: “Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufÏciently achieved by Member States, either at a central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level”
The beneficiaries of the principle of subsidiarity are therefore the Member States, who see their sphere of sovereignty (in the areas of shared competences) protected against the adoption of acts without 'EU added value'.
Protocol 2 to the Lisbon Treaty
The Protocol on the application of the principles of subsidiarity and proportionality allows for an ex ante political control on the respect of the principles (and thus of national prerogatives).
The Commission, before exercising its power of legislative initiative, is obliged to undertake extensive and thorough consultations.
The Commission has the burden to “sate reasons” for every legislative proposal also with regard to compliance with the principle of subsidiarity.
Each legislative proposal must be sent by the Commission to the national Parliaments, which have 8 weeks to issue a reasoned opinion.
Yellow card:
1/3 negative votes (1/4 if Area of Freedom, Security and Justice) --> The Commission must reconsider the proposal and may maintain, amend or withdraw it.
Orange card:
majority negative votes --> The Commission must reconsider, it can keep the proposal, but if the majority of Members of Parliament or 55% of the Council are against the proposal, the proposal is abandoned.
Sources of European Law: Primary Law
Eu law sources could be reassumed in the following scheme and then analysed one by one.
Primary Law: the Treaties (TEU and TFEU) + general principles of EU law + CFREU
International Law: general international law + international agreements executed by the EU
Secondary Law: binding sources (regulations, directives and decisions) and non-binding sources (recommendations and opinions)
Other sources: soft laws such as guidelines and communications
The Treaties
Treaties provide the basic (but fundamental) legal regime to regulate the relations between the different subjects of the EU legal order.
They are the higher legal source of the EU legal order, in the hierarchy of the sources, therefore, they are above inter alia secondary law.
Treaties can confer rights (or impose obligations – see for example Articles 101 and 102 TFEU) not only to the institutions and the Member States but also upon individuals (Van Gend en Loos case).
Treaties confer the competences to the EU institutions and therefore confer legal force and effectivity to the acts of the institutions.
The Treaty on the European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) have the very same legal value.
TEU is composed by 55 articles divided in: preamble, common provisions, provisions on democratic principles, provision on the institutions, provision on enhanced cooperation.
TFEU is composed by 360 articles with a preamble, and it is divided in 7 different parts.
Revision of the Treaties
The revision procedures of the Treaties are three with different characteristics and different institutions involved:
The ordinary revision procedure
The simplified procedure n. 1: only for the third part of the TFEU
The simplified procedure n. 2: the so-called bridging or passerelle procedure
The Ordinary Revision Procedure
This is the more general and can always be applied by Convention or by Intergovernmental Conference.
The power of initiative, to propose amendment to the Treaties rest with the EU Parliament, the Commission or each Member State government.
The Simplified Procedure n. 1: only for the third part of the TFEU
This procedure cannot be used to increase or decrease the Union's powers or competences.
The power of initiatives rests with the EU Parliament, the Commission or each Member State government (as in the ordinary revision procedure)
The Simplified Procedure n. 2: The So-Called Bridging or Passerelle Procedure
This procedure allows the transition from situations that are now exceptional in the context of the Lisbon Treaty to what is the ordinary scenario.
It works by unanimity in the European Council after approval by the European Parliament and without the need of ratification by the member states. .
General Principles of the EU
The general principles of EU law are primary source of law.
Their function is to help to fill any legal gaps, they are parameters for interpretation of EU law (both the Treaties and secondary law) and also parameters for legitimacy of secondary legislation, i.e., they are binding not only for Member States but also for the EU institutions.
General principles are divided in those typical of EU law such as non-discrimination, subsidiarity, mutual recognition, loyal cooperation, effet utile and those common to national legal systems like legality, democracy, legitimate expectations, proportionality.
effet utile: Any disposition of EU law shall be interpreted and applied in the way that better allow the achievement of the goal set forth in it.
loyal cooperation: it is the obligation for Member States to take any measures of a general or particular nature appropriate to ensure the execution of obligations arising from the Treaties or resulting from the acts of the institutions.
legal certainty: it is the transparency of the administrative action which consists in a safeguard of individual legitimate expectation for example with regard to sudden change in legal discipline or the revocation/annulment of individual acts.
The Protection of Fundamental Rights
No disposition of the Treaty of Rome dealt with the protection of fundamental rights.
In the early 1960s, the Court of Justice afÏrmed the irrelevance at the Community level of fundamental rights and their protection.
Shortly after, the ECJ afÏrmed principles such as those of direct effect (1963 Van Gend en Loos Case) and, above all, of the primacy of Union law over national law, including constitutional law.
To cope with the position taken by the Constitutional courts (especially Italian and German), the Court of Justice changed its position.
In the late 1960s, the Court of Justice recognized that fundamental rights were (and still are) part of the general legal principles of EU law and that, as a consequence, the Court was going to ensure that EU institutions complied with them.
Most importantly, fundamental rights become a yardstick for the assessment of the legitimacy of the activity of the EU institutions and thus, of the validity of EU secondary law which means that if an act of secondary law does not comply with fundamental rights can be annulled and/or declared invalid by the ECJ.
The “sources of inspiration” used by the Court of Justice are the constitutional
The Origins of the European Integration Process
Understanding the origins of the EU is crucial to understanding its current functioning. The integration process was driven by a desire to move beyond nationalistic politics and prevent future conflicts in Europe.
Following WWII, many international organizations were formed to maintain peace. These organizations aimed to foster cooperation and prevent the recurrence of devastating wars.
The Council of Europe, based in Strasbourg, focuses on protecting fundamental rights but is distinct from the EU. It plays a significant role in promoting democracy and human rights across Europe.
Traditional international organizations rely on treaties without transferring innovative powers. These organizations typically operate on the basis of intergovernmental cooperation, where states retain their sovereignty.
The European Economic Communities (EEC) represent a different approach, characterized by the pooling of sovereignty and the creation of supranational institutions.
The Hague Conference (1948)
The Hague Conference in 1948 was the first major discussion on creating something new in Europe. It brought together politicians, thinkers, and individuals to discuss the future of Europe after the war.
Politicians and individuals debated three approaches:
Traditionalist: Creating an ordinary international organization, maintaining national sovereignty.
Federalist: Establishing a single federal state in Europe, abolishing national states. This approach advocated for a unified European government.
Functionalistic: A step-by-step integration process to create de facto solidarity. This approach focused on integrating specific sectors to foster cooperation.
The Shuman Declaration (1950)
The Shuman Declaration adopted the functionalistic approach with two goals:
Long-term: Establishing a supranational institution to oversee key sectors of the economy.
Short-term: Sharing coal and steel trade to avoid conflict, fostering economic interdependence.
The aim was to create an ever-closer union through gradual integration, building trust and cooperation over time.
The European Coal and Steel Community (1951)
The ECSC was the first outcome of the Shuman Declaration. It marked the beginning of European integration by pooling coal and steel resources.
Similarities to traditional organizations:
Limited scope: common market for coal and steel, focusing on specific industries.
Innovative features:
Complex institutional framework similar to today's EU, with supranational elements.
The European Commission (Higher Authority):
Supranational institution composed of independent members acting in the interests of the European Community. Commissioners are appointed to represent the common European interest.
Currently composed of one member from each member state, ensuring representation from all nations.
The Council:
Composed of representatives (ministers) from each member state. Ministers represent their national interests within the Council.
Represents the intergovernmental approach, where national governments play a key role.
The Assembly (now European Parliament):
Initially composed of members from national parliaments (indirect representation).
The European Court of Justice:
Ensures the treaty's effectiveness and compliance by member states, resolving disputes and interpreting EU law.
EURATOM (1957)
EURATOM dealt with atomic energy, promoting its peaceful use and research.
Similar to traditional organizations: focused on a specific topic, coordinating efforts in the field of atomic energy.
Distinctive feature: no expiry date, indicating a desire for long-lasting cooperation (unlike the ECSC, which was set to expire after 50 years).
The European Economic Community (1957)
The EEC aimed to avoid conflicts by increasing trade and economic integration.
Based on an economic approach with limited competences compared to the EU. The EEC focused on creating a common market and promoting economic growth.
Established the common market through four fundamental freedoms:
Free movement of goods, allowing goods to circulate freely between member states.
Free movement of services, enabling service providers to offer their services across borders.
Free movement of capital, facilitating the flow of investments and financial transactions.
Freedom of establishment, allowing individuals and companies to establish businesses in any member state.
Initially, these freedoms applied only to economic operators, gradually expanding to include all citizens.
Competition law was included to prevent private undertakings from jeopardizing the fundamental freedoms, ensuring a level playing field.
Economic fundamental freedoms are addressed to member states, requiring them to remove barriers to trade and economic activity.
Competition law deals with anticompetitive agreements and abusive conducts, promoting fair competition.
The Merger Treaty (1967)
Unified the institutional frameworks of the EEC, ECSC, and EURATOM to reduce costs and complexity, streamlining decision-making processes.
Prior to the treaty, each community had its own separate institutions (councils, assemblies, courts, etc.).
First Setbacks in the Integration Process
The failure of the CED:
A common European defense project failed due to concerns over national sovereignty, highlighting the challenges of integrating defense policies.
The “empty chair” crisis and the Luxembourg Compromise (1966):
France, under Charles de Gaulle, opposed further integration and boycotted Council meetings, leading to a political crisis.
The Council required unanimity for votes, leading to a standstill, paralyzing decision-making.
The Luxembourg Compromise informally recognized the rule of consensus, requiring continued work until everyone agreed. This compromise aimed to address concerns about national sovereignty.
Highlighted the difficulty of positive integration due to the unanimity rule, demonstrating the challenges of reaching agreements on new policies.
Positive and Negative Integration
Positive integration: Creating new rules and policies at the European level.
Negative integration: Removing existing rules and barriers to trade and economic activity.
Due to the unanimity rule, positive integration was difficult in the early years, limiting the scope for new EU-level policies.
The European Court of Justice took the lead through the preliminary reference procedure, interpreting EU law and ensuring its uniform application.
The ECJ dismantled national legislation that limited fundamental freedoms, promoting the free movement of goods, services, capital, and people.
The Single European Act (1986)
The Single European Act primarily aimed to foster the development of the internal market, removing remaining barriers to trade and creating a single economic space.
Amendments to the Treaty of Rome included:
Replacing unanimity with qualified majority voting in some areas related to the internal market, speeding up decision-making.
Reinforcing the European Parliament, which began direct elections in 1979, increasing its democratic legitimacy.
Introducing new procedures (cooperation and consultation) to increase Parliament's involvement in decision-making.
The Maastricht Treaty (1992)
The Maastricht Treaty created the European Union with a three-pillar structure:
The European Community, dealing with economic, social, and environmental policies.
The Common Foreign and Security Policy (CFSP), coordinating foreign policy among member states.
Justice and Home Affairs (JHA), addressing issues such as immigration, asylum, and crime.
The structure reflected a division between the “community method” and traditional intergovernmental cooperation, balancing supranational and intergovernmental approaches.
Member states were hesitant to cede powers related to national sovereignty, particularly in areas such as defense and foreign policy.
The treaty signified a shift from a purely economic focus to broader competences, including the creation of EU citizenship, giving individuals rights and responsibilities as EU citizens.
The community method is stronger level of cooperation than the intergovernmental one, with more supranational decision-making.
Community Method vs. Intergovernmental Cooperation
Community Method:
Institutions act in the interest of the community, prioritizing the common European interest.
Unanimity is reduced, with qualified majority voting used, enabling faster decision-making.
European institutions adopt binding legal acts, and the European Court of Justice ensures judicial review, ensuring compliance with EU law.
Intergovernmental Cooperation:
Traditional international approach, where member states retain control over decision-making.
Qualified majority voting:
A double standard considering both the number of member states and the population of each state, ensuring fair representation.
Significantly impacts national sovereignty, requiring member states to cede some control to the EU.
The Amsterdam Treaty (1997)
The Amsterdam Treaty was motivated by the end of the Cold War and the potential membership of former Soviet states, preparing the EU for enlargement.
A new third pillar was introduced: cooperation in police and criminal matters, enhancing cooperation in law enforcement.
Enhanced cooperation was introduced, allowing a smaller group of member states to proceed with initiatives when unanimity could not be reached, fostering flexibility.
The treaty formulated the fundamental principles of the EU (democracy, human rights) and created a procedure (Art. 7 TEU) to address breaches of these principles by member states, safeguarding core values.
The Treaty of Nice (2001)
The Treaty of Nice adopted the Charter on the Fundamental Rights of the European Union, a codification of existing fundamental rights within the EU legal order, ensuring their protection.
Fundamental rights are considered general principles of EU law and thus primary law, carrying significant legal weight.
Treaty on the European Constitution (2004)
The Treaty establishing a Constitution for Europe failed ratification in the Netherlands and France, due to concerns about national sovereignty and the EU's direction.
Symbolic elements such as the EU flag and anthem were included, but the treaty was ultimately unsuccessful.
The Treaty of Lisbon (2009)
The Lisbon Treaty is composed of two treaties:
The Treaty on the European Union (TEU), setting out the EU's aims and principles.
The Treaty on the Functioning of the European Union (TFEU), detailing how the EU achieves its aims.
The Charter of Fundamental Rights of the European Union (CFREU) acquired legal force and became part of the binding legal acts of European Union law.
The European Union acquired legal personality, and the European Community ceased to exist, streamlining the EU's legal structure.
The treaty emphasizes representative democracy, with citizens directly represented in the European Parliament and indirectly in the European Council.
The pillars of the Maastricht Union were abolished, simplifying the EU's structure and decision-making processes.
The Institutional Framework
Article 13 TEU lists the seven institutions of the EU:
The European Parliament
The European Council
The Council of Ministers
The European Commission
The Court of Auditors
The European Central Bank
The European Court of Justice
Institutions must act within the powers conferred by the treaties and practice mutual sincere cooperation, respecting the limits of their authority.
The European Council (Article 15 TEU – Articles 235-236 TFUE)
Distinct from the Council of Ministers and the Council of Europe.
First mentioned in the European Single Act (1986) and formally established as an institution by the Lisbon Treaty (2009).
Members: Heads of State or Government of the member states and the President of the European Council.
The President of the European Council presides over meetings, coordinates work, ensures consistency, and reports to the European Parliament.
The High Representative for the Common Foreign and Security Policy can participate in the works.
Main task: to provide the Union with the necessary political impetus for its development and define general political directions and priorities.
Does not exercise legislative functions.
Adopts conclusions and decisions, including decisions on the functioning of other institutions.
The EU Council is the highest political forum of the EU.
Plays a role in the procedure ex art. 7 TEU.
Partakes in the election/appointment of high-profile members of the institutions.
It can adopt decisions amending the Treaties (simplified procedures for Treaty amendments set by Article 48 TEU).
Decides primarily by consensus; however, sometimes decides by qualified majority.
The Council of Ministers (Articles 16 TUE and 237-243 TFEU)
Composed of one member for each member state at the ministerial level.
Variable composition: changes depending on the agenda.
Internal organization:
Working groups
COREPER 1 and COREPER 2 (Committee of Permanent Representatives)
Specific configurations
Council presidency (rotating presidency held by pre-established groups of three Member States for a period of eighteen months).
Main decisional body, sharing legislative power with the EU Parliament.
Approves the EU budget with the EU Parliament.
Has external action power, including negotiating and executing international agreements.
Main player in the Common Foreign and Security Policy field.
Voting procedures are complex, with a gradual replacement of unanimity with the majority principle.
Qualified majority voting: at least 55% of member states and 65% of the population.
Unanimity still required in some areas (CFSP, taxation).
EU Parliament (Article 14 TEU – Articles 223-236 TFEU)
Replaced the Assembly, ensuring democratic representation (indirectly under the Treaty of Rome).
The turning point was the election of the EU Parliament by direct universal suffrage decided in 1976 and with the first elections carried out in 1979.
Composed of representatives of the citizens of the European Union.
Mandate: 5 years.
The parliament shall approve the Commission and is empowered to do a motion of censure.
Electoral procedures vary by member state but adhere to principles such as single vote, elections on the same date, and proportional representation.
Number of MEPs is divided on a national basis, representation of citizens within the European Parliament is degressively proportional.
Legal regime: partly by the Treaties and partly by the internal regulation.
MEPs constitute political groups based on common political views (but some can be enrolled in any group).
Before any voting, groups shall examine the relations drafted by the Parliament Committees and can propose amendments.
However, the MEPs are free to vote differently.
President elected by Parliament (2,5 years mandate).
Today the EU Parliament is the co-legislator of the EU legal order together with the Council.
Also, every revision of the Treaty has progressively reinforced the role of the EU parliament since the Single European Act (1986).
There are, however, sectors where the role of the Parliament is still limited or absent (CFSP).
The parliament has also a role of political and democratic control. For example:
every six months the Council shall present to the Parliament a programme of its works as well as a relation at the end of each semester.
every year the Commission shall present to the Parliament an annual relation on the activity of the European Union.
The motion of censure (article 234 TFUE) is a very strong instrument vis-à-vis the Commission.
Any citizen of the Union, but also any natural or legal person residing in a Member State, has the right to submit petitions (article 227 TFEU) to the EU Parliament, which is therefore obliged to receive them.
An addition organ has been introduced with the Maastricht Treaty which is the European Ombudsman (articles 20, 24 and 228 TFEU).
The Commission (Article 17 TEU and Articles 244-250 TFEU)
The Commission shall promote the general interest of the Union.
It holds a kind of 'monopoly' with regard to the power of legislative initiative and the executive power.
The Commission is composed of one Commissioner per Member State, thus today 27 members.
Commissioners are chosen on the basis of their general competence and must offer significant guarantees of independence from States and private individuals.
High Representative for foreign affairs and security policy is Vice-President of the Commission.
The EU Competences
The Principle of Conferral (Article 5 TEU)
The limits of Union competences are governed by the principle of conferral.
Competences not conferred upon the Union in the Treaties remain with the Member States.
The Union has no competences of its own (no original competences), but only the specific competences conferred to it by the States.
The EU does not “steal” competences form the Member States, the Member States freely decide to let the Union do something that would otherwise fall within the national competences.
The Union has no general purpose: it can only intervene in those cases and in those ways in which the Member States allow it through the Treaties.
Being a direct expression of the principle of conferral, the need for the EU institutions
The Legal Basis
Identifying and making explicit the legal basis of their actions is a peculiarity of the Union's legal system.
These elements can be subject to judicial review by the Court of Justice, who can annul the act if the legal basis was wrongly identified.
When the Treaties offer, in the abstract, several legal basis to regulate a given matter, the legal basis which is most connected to the content and the purpose of the act shall be preferred following the centre of gravity theory.
Different Kind of Competences
The classification of competences in an 'ordered' manner is one of the novelties introduced by the Lisbon Treaty.
Exclusive competences (Article 3 TFEU)
The Union shall have exclusive competences in the following areas:
customs union
the establishing of the competition rules necessary for the functioning of the internal market
monetary policy for the Member states whose currency is the euro
the conservation of marine biological resources under the common fisheries policy
common commercial policy
The list of the exclusive competences provided by Article 3 TFEU is exhaustive in nature.
That a competence has been conferred to the EU on an exclusive basis means that, in the fields mentioned by Article 3 TEU, only and solely the Union may intervene.
Shared competences (Article 4 TFEU)
The Union shall share competence with the Member States where the Treaties confer on it a competence which does not relate to the areas referred to in Article 3 and 6.”
The shared competences category is a “catch-all” one.
That a competence is shared between the EU and the Member States means that, in theory, both the EU and the Member States can intervene.
However, this is true only if the process of integration and the EU legal order had been at “time zero”.
Indeed, the division of shared competences is governed by the so-called principle of pre-emption, according to which the Member States may only intervene if the Union has not yet regulated that matter.
Supporting competences (Articles 5 e 6 TFEU)
The Member States shall coordinate their economic policies within the Union.
The Union shall have competences to carry out actions to support, coordinate and supplement the actions of the Member States.
As the catch-all category is the one of the shared competencies, it is obvious that the lists provided by Articles 5 and 6 TFEU is exhaustive in nature.
Examples:
training and education
youth, sport, tourism
culture, industry
protection and improvement of human health
civil protection
administrative cooperation.
The Flexibility Clause (Article 352 TFEU)
If an action of the Union appears necessary, within the framework of the policies defined by the Treaties, to attain one of the objectives set out in the Treaties, without the Treaties having provided the necessary powers, the Council, acting unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament, shall adopt the appropriate provisions.
Actions based on Article 352 TFEU cannot lead to harmonisation of national rules.
The Theory of Implicit Powers
It is a theory created by the ECJ to allow the Union to exercise those powers which, although not conferred directly, are indispensable for the effective exercise of the competences that were conferred to it.
This theory is based on the general EU law principle of so-called effet utile.
The Principles Governing the Exercise of the Competences
The development in this field therefore occurred through the case law of the ECJ and the principles expressed where subsequently codified in the Treaties from the Maastricht one onwards.
The division of competence between the Union and the Member States and the exercise by the Union of its powers is governed by two fundamental principles, the principle of subsidiarity and the principle of proportionality.
The principle of proportionality always applies, whereas the principle of subsidiarity applies only in matters which are not exclusively attributed to the Union (Article 5(3) TFEU).
The Principle of Proportionality
Pursuant to the principle of proportionality, EU action must be limited to what is necessary to achieve the objectives of the Treaty.
A practical consequence is the general preference for the instrument of the directive instead of the regulation as a source of secondary legislation.
The Principle of Subsidiarity
According to Article 5(3) TFEU: “Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufÏciently achieved by Member States, either at a central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level”
The beneficiaries of the principle of subsidiarity are therefore the Member States, who see their sphere of sovereignty (in the areas of shared competences) protected against the adoption of acts without 'EU added value'.
Protocol 2 to the Lisbon Treaty
The Protocol on the application of the principles of subsidiarity and proportionality allows for an ex ante political control on the respect of the principles (and thus of national prerogatives).
The Commission, before exercising its power of legislative initiative, is obliged to undertake extensive and thorough consultations.
The Commission has the burden to “sate reasons” for every legislative proposal also with regard to compliance with the principle of subsidiarity.
Each legislative proposal must be sent by the Commission to the national Parliaments, which have 8 weeks to issue a reasoned opinion.
Yellow card:
1/3 negative votes (1/4 if Area of Freedom, Security and Justice) --> The Commission must reconsider the proposal and may maintain, amend or withdraw it.
Orange card:
majority negative votes --> The Commission must reconsider, it can keep the proposal, but if the majority of Members of Parliament or 55% of the Council are against the proposal, the proposal is abandoned.
Sources of European Law: Primary Law
Eu law sources could be reassumed in the following scheme and then analysed one by one.
Primary Law: the Treaties (TEU and TFEU) + general principles of EU law + CFREU
International Law: general international law + international agreements executed by the EU
Secondary Law: binding sources (regulations, directives and decisions) and non-binding sources (recommendations and opinions)
Other sources: soft laws such as guidelines and communications
The Treaties
Treaties provide the basic (but fundamental) legal regime to regulate the relations between the different subjects of the EU legal order.
They are the higher legal source of the EU legal order, in the hierarchy of the sources, therefore, they are above inter alia secondary law.
Treaties can confer rights (or impose obligations – see for example Articles 101 and 102 TFEU) not only to the institutions and the Member States but also upon individuals (Van Gend en Loos case).
Treaties confer the competences to the EU institutions and therefore confer legal force and effectivity to the acts of the institutions.
The Treaty on the European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) have the very same legal value.
TEU is composed by 55 articles divided in: preamble, common provisions, provisions on democratic principles, provision on the institutions, provision on enhanced cooperation.
TFEU is composed by 360 articles with a preamble, and it is divided in 7 different parts.
Revision of the Treaties
The revision procedures of the Treaties are three with different characteristics and different institutions involved:
The ordinary revision procedure
The simplified procedure n. 1: only for the third part of the TFEU
The simplified procedure n. 2: the so-called bridging or passerelle procedure
The Ordinary Revision Procedure
This is the more general and can always be applied by Convention or by Intergovernmental Conference.
The power of initiative, to propose amendment to the Treaties rest with the EU Parliament, the Commission or each Member State government.
The Simplified Procedure n. 1: only for the third part of the TFEU
This procedure cannot be used to increase or decrease the Union's powers or competences.
The power of initiatives rests with the EU Parliament, the Commission or each Member State government (as in the ordinary revision procedure)
The Simplified Procedure n. 2: The So-Called Bridging or Passerelle Procedure
This procedure allows the transition from situations that are now exceptional in the context of the Lisbon Treaty to what is the ordinary scenario.
It works by unanimity in the European Council after approval by the European Parliament and without the need of ratification by the member states. .
General Principles of the EU
The general principles of EU law are primary source of law.
Their function is to help to fill any legal gaps, they are parameters for interpretation of EU law (both the Treaties and secondary law) and also parameters for legitimacy of secondary legislation, i.e., they are binding not only for Member States but also for the EU institutions.
General principles are divided in those typical of EU law such as non-discrimination, subsidiarity, mutual recognition, loyal cooperation, effet utile and those common to national legal systems like legality, democracy, legitimate expectations, proportionality.
effet utile: Any disposition of EU law shall be interpreted and applied in the way that better allow the achievement of the goal set forth in it.
loyal cooperation: it is the obligation for Member States to take any measures of a general or particular nature appropriate to ensure the execution of obligations arising from the Treaties or resulting from the acts of the institutions.
legal certainty: it is the transparency of the administrative action which consists in a safeguard of individual legitimate expectation for example with regard to sudden change in legal discipline or the revocation/annulment of individual acts.
The Protection of Fundamental Rights
No disposition of the Treaty of Rome dealt with the protection of fundamental rights.
In the early 1960s, the Court of Justice afÏrmed the irrelevance at the Community level of fundamental rights and their protection.
Shortly after, the ECJ afÏrmed principles such as those of direct effect (1963 Van Gend en Loos Case) and, above all, of the primacy of Union law over national law, including constitutional law.
To cope with the position taken by the Constitutional courts (especially Italian and German), the Court of Justice changed its position.
In the late 1960s, the Court of Justice recognized that fundamental rights were (and still are) part of the general legal principles of EU law and that, as a consequence, the Court was going to ensure that EU institutions complied with them.
Most importantly, fundamental rights become a yardstick for the assessment of the legitimacy of the activity of the EU institutions and thus, of the validity of EU secondary law which means that if an act of secondary law does not comply with fundamental rights can be annulled and/or declared invalid by the ECJ.
The “sources of inspiration” used by the Court of Justice are the constitutional