Appunti + casi + schemi riassuntivi Advanced European Union Law

Advanced European Union Law Lecture 1

The member states of the European Union are 27 now, since the UK left the EU on 31 January 2020. The Brexit is relevant because it is the first time that the number of members of the EU decreases. The first graft of the European Union originated in the 50s, with 6 member states, 3 big: France, Germany and Italy, and 3 small: Belgium, Netherlands, Luxembourg (BENELUX nations). They were connected also physically through the European Coal and Steel Community. European Community with the Treaty of Rome 1957.

Enlargement process

In the 80s the enlargement process began. Initially states are candidates, after they fulfill some conditions they become official candidates. If one member state opposes a state regarding the joint of the EU, it can actually block the process. Of course, it needs to present economic and political considerations for such decision. States are interested in joining due to the power the block holds.

The first enlargement occurred in the 70s, more precisely in 1973, when the UK, Ireland and Denmark joined. Then Greece joined in '81, Spain and Portugal in '84, Austria and Scandinavian countries in '85, with the exception of Norway, since in the country there was a referendum and the population decided not to join the EU. However, Norway, together with Iceland and Liechtenstein, is part of the European Economic Area. Switzerland, on the other hand, was never a member of it, even though it has signed numerous FTAs with the EU.

The 1^st condition to be a member of the European Union is to be a European country. In 2005 there was what is commonly known as the "Big Enlargement". From the previous 15 countries, other +10, arriving at a total of 25 member states. Such countries were the countries previously under the Soviet Union domain (at the time Germany was actually split into a west and east side, when we refer to Germany as a founding member we talk about the west side). Romania and Bulgaria joined later in 2007, and Cyprus and Malta joined later on.

Countries in western Balkans + Albania are candidates and potential countries which have started negotiations (negotiations have been stopped in the case of Turkey due to political reasons). Kosovo is not yet independent. Slovenia joined in 2005, while Croatia in 2013. The idea was to include also the rest of the Balkans within the EU, but such process will take time.

Turkey and the EU

Turkey has a special relationship with the EU since the 70s. However, due to political reasons, the military power, the Muslim majority, and the fact that it is a very big country (it would become the second after Germany if it entered the EU), its entrance into the EU has been slowed down by some member states. At the moment, the Turkish government is very strict and therefore not the best for collaboration. For this reason, Turkey will not become a member of the EU soon, but will remain an important trade partner.

The UK till December is still in a transitional period, even though not part of the EU anymore, some rules still apply. Afterwards, it will either be completely out, or more probably, some sort of agreement between it and the EU will be established. There is also the issue of Ireland, it is difficult to keep the two Irelands connected without an agreement between the UK and EU. The EU counts 446 million people, bigger than the US, Russia, Japan, but smaller than China and India. But bigger than the US, Russia, and Japan.

Founding Fathers

Simon Veil was the first woman president of the European Parliament. She was also the first president who was elected by people. History is usually narrated by men; there is a male predominance. Nowadays there is a new trend to have a new narrative and rediscover the role that women played in the EU.

Winston Churchill was one of the first politicians in power during and after WW2 to talk about the unification of the different countries of Europe. He also stated he wasn’t sure if the UK would have become a member immediately, but that it would have surely supported such a plan.

“Manifesto di Ventotene” by Spinelli and others promoted the unification of Europe after WW2 in Italy. This idea was supported by a group of intellectuals across different European countries. Jean Monnet. Robert Schuman's speech on 9 May 1950, happened at d’Orsay museum, started the ongoing process of European integration. The topic of such speech was secret, they only stated it was extremely important, but no pre-leaking. One of the key concepts of EU is the key facto solidarity. “Europe will not be made all at once or according to a single plan”.

Most of the wars occurring in Europe happened due to conflicts between France and Germany, which are the center of Europe and were even more at the time, both physically and economically. For this reason, it is extremely relevant that they were on board with the EU idea. What usually generated the conflict between the two countries is that there were 2 areas next to one another, Lorraine in France and Alsace in Germany, which were really important for the production of weapons and that therefore both the countries wanted to possess.

For this reason, in the 1950s, the core project was to put together the management of coal and steel in order to avoid clashes like WW1 and WW2. Therefore, there was the necessity to unify the power under a common authority, open to the participation of other European countries. In Italy, there was historical support regarding the EU. Alcide de Gasperi strongly supported such an initiative since he was born at the border of Italy and Germany and therefore understood better the situation. He was one of the founding fathers of the EU. Adenauer was Germany's prime minister at the time.

Schuman's speech is considered the start of the EU integration process. The 1^st Treaties entered into force in 1952 (signed 1951). European coal and steel community 1952. During the 1955 Conference in Messina, chaired by Henri Spaak (Belgium politician), was written the report establishing the EURATOM (peaceful use of atomic energy) and what will later in 1957, with the Treaty of Rome, become the European internal market -> European Economic Community or EEC, entailing the 4 liberties.

1987 European Single Act. Maastricht Treaty was signed in 1992 (working since 1993). Established the name European Union + the idea of a monetary union. After Amsterdam, Nice, Lisbon. Treaty on the functioning of EU (TFEU). 12 stars of the flag, members at the time, then decided to keep it fixed for aesthetical reasons. Ode to Joy of Beethoven is the European anthem. There are 24 official languages, to which all documents have to be translated into. The languages used in European institutions are mainly French and English.

If we rank EU countries based on the number of people they have the biggest would be Germany, followed by France, Italy, Spain and Poland, etc. the first 3 are the key players.

EU Institutions

Ursula von der Leyen is the President of the European Commission, and its first woman president. The European Commission is a collegium of 27 members, with one representative for each country, which is one of the EU's key players and has the executive power. The Parliament has become more powerful through the years and can reject people on getting into European Commission on the basis of conflict of interest or too extreme political ideas. The president of the Parliament is now David Sassoli (voice of the people), while the president of the European Council is Charles Michel (voice of the Member States).

The hierarchy of EU institutions: European Council, Council of European Ministers, European Commission, Parliament (The Council), Economic and social Committee, Committee of Regions, Court of Justice, Court of Auditors. The European Council is a Summit formed by the Heads of State, usually the president of the government, with the exception of France. Its president changes according to semester rotations. It is responsible for political decisions. The Council (of ministers), change composition according to the topic discussed.

Economic and social Committee has representatives of the civil society of business. The European Investment Bank and the ECB are supporting agencies. Then there are other supporting bodies in the different countries, for example in Italy, Parma is the one for food security. The Council of Ministers is composed of one member for each country rotating, one country each semester has to organize the agenda. This semester Germany. Council of Ministers has the rotating participation of ministers, some general, some for specific issues and therefore held by specific ministers. System of majority, at least 55%, aimed to give power also to smaller member states. Josep Borell is the person in charge in case of conflict.

The European Commission makes technical proposals for legislation. It’s a guardian of treaties, checking that members are implementing them correctly. Start proceeding if no compliance, first pushing it to compliance, if not achieved before Court. Negotiation with other trading blocks happens through this body. The European Court of Justice has 27 members, one for each member state. It ensures the correct interpretation and application of the law. European Ombudsman helps with conflicts between institutions and citizens, the name is a Scandinavian word, in Italian it’s called difensore civico. Christine Lagarde is the president of the ECB, previously president of IMF.

Europe Direct Center, each region has a number of centers, points of connection between the EU and citizens. In Siena is inside university, at Rettorato ground floors.

Lecture 2 – The European Union Internal Market

The EU has 2 main objectives:

• Creating a common market -> only creating a common market we can have a proper integration.
• Put together different single markets rather than simply having free trade (at least for what concerns goods at the very beginning).

These two elements are at the core of European integration.

Let's now take a look at the steps that from the Schumann declaration brought us to the Treaty of Rome. The Messina Declaration of 3 June 1955, was the first sketch of the idea behind the EU (a single market based on the 4 freedoms). Then 2 years later, a group of lawyers chaired by Jean Monnet wrote the Treaty of EEC, refining the concept of a common market and forms the 4 freedoms: Goods, Services, People, Capital.

The EU experiment of integration is quite unique. An institution was created to deliver certain policies and address certain matters; each country delegates some of its sovereign power. The member states also participate in other international organizations. In some areas, like trade, we have full delegation of power. For example, if Italy wants to trade with China, it cannot do it independently, but has to do it through the EU. Other times, we have only a partial delegation of power.

We have to create a common market where all players are in the same conditions. It entails a period of adjustment. Nowadays the internal market is not the only element but one of the most important. The EU legislate new issues, for example, e-commerce, and technology. There is the problem of tax treatment in companies such as Amazon and Google, which earn a lot but don’t pay taxes. It is sufficient to have 1 single headquarter in Europe to sell products across the EU. Usually, such headquarters are placed in Ireland since the taxes are lower there; this is an unfair practice.

There are two other terms that are often used as an alternative to the internal market: common market and single market. However, the 3 terms are not exactly interchangeable. TEU contains the main objectives of the EU, while TFEU contains all the operational rules, like the 4 freedoms and other provisions.

Art 3 TEU and art 26 TFEU contain a reference to the internal market. Art 3 TEU has the aim of clarifying the key objectives of the treaty.

• The Union’s aim is to promote peace, its values and the well-being of its peoples.
• The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration, and the prevention and combating of crime.
• The Union shall establish an internal market. It shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. It shall promote scientific and technological advancement.
• It shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men, solidarity between generations, and protection of the rights of the child. It shall promote economic, social and territorial cohesion, and solidarity among Member States. It shall respect its rich cultural and linguistic diversity, and shall ensure that Europe’s cultural heritage is safeguarded and enhanced.
• The Union shall establish an economic and monetary union whose currency is the euro.
• In its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute to peace, security, the sustainable development of the Earth, solidarity, and mutual respect among peoples, free and fair trade, eradication of poverty, and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter.
• The Union shall pursue its objectives by appropriate means commensurate with the competences which are conferred upon it in the Treaties. (TEU 4; Protocol (No 27) on the internal market and competition)

Art 3 makes also a reference to sustainable development. In the original Treaty, there was a reference only to economic and social interest (in the form of welfare state provision, which in the EU is stronger than in other countries). After the Lisbon treaty, there was an integration of the 3 pillars: economic, social and environmental.

• Economic growth allows the EU to have a competitive economy with respect to third parties such as the US or Japan. One of the issues related to economic growth is price stability; this explains why the ECB tries to keep the inflation rate very low. In Germany, there is a fear of inflation due to what happened during WW1 and WW2.
• Social pillar: Considering not just competition.
• Environment: Keeping and also improving the quality of the environment.

Main institutions of EU

The main institutions of the EU are: European Commission, Parliament, and the Council. However, there is another important body: the European Court of Justice. It has also the role of interpreting the meaning of the Treaties since there is not a lot of specification within the Treaty. The Court does not just interpret but also develops the law.

Treaty of Rome 1957. Foundation of EU. As we previously said, common market, internal market, and single market are, in reality, different concepts. We obtain a common market through the elimination of all obstacles to intra-community trade. When we merge national markets into a single market, internal borders are not relevant anymore, only the external ones. We finally have to create the same conditions as an internal market. We can therefore consider the 3 terms as 3 different stages of a process: common, internal, single.

How relevant was the Court of Justice in shaping these concepts? Art 26 TFEU. The union has competence to establish or ensure the functioning of the internal market. We have to look at the new needs and necessities of the market.

What is included in the internal market? (Content)

• Area without internal frontiers, only external.
• Area where the 4 freedoms are ensured and guaranteed.

The Council and the Parliament now share the legislative power. Initially, the role of the Parliament was very marginal; it has acquired power only in the last 20 years. Barriers The 4 freedoms comprise rules regulating how the market works, members have to remove all the national procedures that are an obstacle to free trade.

• Tariff
• Non-tariff

An example of non-tariff barriers are technical standards. To reduce the barriers created by technical standards, there are two alternatives: the first is the harmonization of standards; the second is the recognition of other nations’ standards.

There is a need to monitor the behavior of other member states. Competition law prohibits undertakings from preventing, restricting, or distorting competition. Ex. Automotive industry there may be an agreement between the company and the government to favor a certain company or between companies to help each other (unfair to consumer) in such a way that the result is the elimination of competition. It is prohibited for member states to grant state aids that may distort competition, such as airline support. Companies should in fact be able to compete in the market without any external help. Therefore, the government has to find ways to go around it, for example by creating another company and do founding through it, or by lowering taxation.

What you are doing is putting together the internal market. Let's now take a look at the history of the achievement of the internal market. The Treaty of Rome entered into force in 1958, states had 11 years to remove all the obstacles, but in practice, it is a never-ending process, in which they always need to adjust.

Two kinds of integration

• Positive
• Negative

Negative integration is related to the 1^st phase or 1^st generation (transitional phase). It concerns the removal of technical barriers in order to facilitate free movement. An example may be the food industry. Germany is famous for the production of beer, however, beer is produced in different ways in different countries. It needs to accept also other countries’ standards. The same thing for Italy with pasta. The only exceptions are related to health reasons. Taste and tradition are not sufficient to establish impediments to trade. The ways exceptions are applied are monitored by the EU Court of Justice and by the EU Commission. It is called negative integration because it consists in the removal of existing national barriers and prohibition to introduce new barriers to free movement.

Let's now take a look at positive integration. In the 80s, the European Union started to adopt specific acts and initiatives to promote the functioning of the internal market.