European Union Law

PPT1: The origins and development of the European integration process and of the EU legal order

The origins of the European integration process

• The European integration process started after the end of the Second World War.
• Push toward the establishment of international organization in order to maintain peace, to avoid the rise of new conflicts and nationalistic approaches.
• New international organizations are created not only in Europe (e.g. NATO) and, as a matter of principle, they are conferred with specific and sectorial competences (e.g. OSCE and the Council of Europe that at the beginning dealt with the protection of fundamental rights.) →
• They are all examples of “traditional” and “ordinary” forms of intergovernmental cooperation: the new organizations and institutions that were created were not conferred innovative powers.
• The world is divided in two “blocks”: what role for Europe?

The Hague Congress (1948) (AKA, “the Congress for Europe”)

• First federal moment in European history. The Hague Congress of 1948 was the.
• There, three different «projects» for the future of Europe were discussed:
• Confederal = future Europe should have looked as a traditional international organization (Churchill, De Gaulle).
• Federalist = no more national States and establishment of a single federal State (Spinelli).
• Functionalist = (the one that won) integration between the European States shall be guided by supranational institutions and cannot but be progressive and achieved step after step leading to an higher level of integration.

The Schuman Declaration (1950)

• The well-known Schuman Declaration pursues two main purposes:
• A. A short term one (avoid conflicts in Europe, mainly by sharing the property of coal and steel. These elements were present in a region on the border between France and Germany and the conflict around them was one of the main reasons of the two world wars.) and
• B. A long term one (laying the foundations for the creation of an ever closer union of the European States and their citizens).
• Schuman’s project is based on the functionalist approach:
• “Europe will not be made all at once, or according to a single plan. It will be built through concrete achievements which first create a de facto solidarity”.
• “The contribution which an organised and living Europe can bring to civilisation is indispensable to the maintenance of peaceful relations”.
• Nothing is possible without men’s will, but nothing can last without institutions.

1 This led to the creation of:

The European Coal and Steel Community (1951)

• The ECSC is established by the 1951 Paris Treaty.
• The ECSC is the first step of the European integration process.
• The ECSC’s main objective is to achieve the common production and trading of coal and steel among the Member States. The Member States granted the power necessary only to deal with the production and trading of coal and steel.
• The Paris Treaty was set to last 50 years (it ceased to exist in 2002).
• Six Founding States (France, Germany, Italy, Belgium, Netherlands and Luxembourg).
• The institutional framework is similar to that of the EEC (on which see infra).

• 1. → High Authority (supranational institution) composed by individuals which are independent and do not represent a single state.
• 2. → Council composed of representatives of each MS at the ministerial level.
• 3. → Parliamentary Assembly: at the beginning it was not elected by the citizens but composed by the representatives of the national parliaments. Therefore it was an indirect representation.
• 4. → Court of Justice: ensure that the Treaty is respected and the goal of the Treaty is achieved. At the international level usually it is complicated to punish those that breach international law; this is however easier at the European level because of the presence of the European Court of Justice. Having a strong institutional framework is one of the differences that distinguish the ECSC from a traditional organisation.

• The so called Spaak Commission is established in order to study the next steps of the integration process.

European Atomic Energy Community (EURATOM)

• The EURATOM has been created by a Treaty executed in Rome in 1957 and entered into force in 1958 (as the EEC, on which see infra).

... and eventually, the EEC

• Treaty of Rome of 1957.
• The EEC “shall have as its task, by establishing a common market and progressively approximating the economic policies of Member States, to promote throughout the Community a harmonious development of economic activities, a continuous and balanced expansion, an increase in stability, an accelerated raising of the standard of living and closer relations between the States belonging to it” (art. 2 EEC).

2 → NB: in this step the level of integration is increased: it is more than just an economic community, even though the internal market has remained one of the main competences of EU.

• The main goal is to “lay the foundations of an ever-closer union among the peoples of Europe”.
• The EEC Treaty has a broad and horizontal scope = not only sectorial competences.
• Main competences conferred by the Member States to the EEC =

• I. Establishment of a common/internal/single competitive market (through:
• 1. The economic fundamental freedoms: -free movement of goods, services, capital and establishment in other member states-
• 2. And the competition policy → to avoid that the economic freedoms were jeopardised by private undertakings.)
• II. And so-called ancillary policies (es. transports, agricultural policy, commercial policy).

• The institutional framework of the EEC is quite complex and includes institutions which are authentically supranational and are granted by the Member States with very significant powers (es. Commission and European Court of Justice.

The institutional framework of the three Communities (ECSC, EURATOM and EEC)

• Each of the three Communities has:
• 1. A Commission (High Authority under the ECSC),
• 2. A Council,
• 3. An Assembly (i.e., a Parliament) as well as
• 4. A Court of Justice.
• This institutional framework is only partially shared among the three Communities: only the Court of Justice and the Parliamentary Assembly are the same for all the three Communities.
• The Commission (High Authority under the ECSC) and the Council are different bodies under the three Communities and are granted with different powers in each of them →
• 1967 = so-called Merger Treaty: the previously separated institutions of the Council and the Commission for the three Communities are brought together and provided with a single budget;
• Of course the competences and powers conferred to them remain different for each of the three Communites.

First setbacks in the integration process

1) Failure of the project for a Common European Defence (CED)

• After the establishment of the ECSC and before the EEC and the Euratom the possibility to create a Common European Defence was discussed.
• It was a French initiative, as France was worried about the potential rearmament of Germany.
• Clearly, the defence sector is particularly sensitive and quite connected to national sovereignty, so the realization of this project would have had a quite strong impact on the integration process (also from the political viewpoint).
• However, the UK backed down and the Treaty was not ratified by France in 1954.

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2) The so-called “empty chair” crisis and the Luxembourg Compromise (1966)

• In the early ‘60, the Commission proposed:
• I. To set aside, for certain areas, the unanimity rule according to which the Council voted and
• II. Reinforce the role of the Parliament and of the Commission itself.
• French President De Gaulle is not in favour of further integration at the supranational level (and, in particular, to the conferral of new powers to the Commission and the Parliament).
• France remained in the EEC but between 1965 and 1966 De Gaulle applied the so called “empty chair” strategy: France refused to take part into the meetings of the Council and de facto it blocked its activities and therefore the whole EEC (as the Council shall vote according to the unanimity rule) →
• 1966 Luxembourg Compromise was an agreement reached to resolve the "Empty Chair Crisis" which had caused a stalemate within European Economic Community (EEC). Under the Luxembourg Compromise, any decision which affected ‘a very important national interest’ would be deferred until a unanimously acceptable solution could be found, regardless of whether the Treaty prescribed majority voting. The Luxembourg Compromise effectively extended the life of the national veto.
• Cassis de Dijon and Dassonville cases.

Positive vs negative integration (v. Cassis de Dijon and Dassonville cases)

A. Positive integration = the creation of rules. It was very hard to implement in the integration process because of the unanimity rules.

B. Negative integration = removal of tariffs, quantitative restrictions, and other barriers to trade or obstacles to free and undistorted competition. (es: if a national law restricts the free movement of goods, it would be removed by the ECJ.)

Single European Act (1986)

• Preceded by the election of the members of the European parliament by direct universal suffrage (1979) and by the White Paper on the internal market (1985).
• ➔ On 14 June 1985, the European Commission submits to the Council its White Paper on the completion of the internal market which sets out a timetable for the measures required for the completion of the single market by 31 December 1992 at the latest.

(1) The SEA codifies the role of the European Council.

• ➔ The SEA introduced the possibility for the Council to vote with a qualified majority (no longer unanimity) with regard to specific matters (e.g. for the adoption of harmonising rules of the internal market).

(2) The SEA reinforced the role of the European Parliament, although only in limited areas. (es. through: →

A. Introduction of the cooperation procedure: the Parliament became co-legislator together with the Council: it can make modifications to the act. →

B. And introduction of the consultation procedures: just the possibility to be consulted by the Council during the legislative procedure, to say Yes/No.)

• New competences are conferred by the Member States to the EEC (es. environmental protection and scientific research).
• A deadline for the creation of the internal market is set (31 December 1992).

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Maastricht Treaty, 1992

• In 1990, the Dublin European Council convened the Intergovernmental Conference to discuss the possibility to amend the Treaty.
• In 1991, the Maastricht European Council approved the text.
• It is very significant step toward an higher level of integration among the Member States.
• The economic nature of the integration process is no longer relevant (European Economic Community).
• The European Union is established and is construed on the well-known three pillars structure, composed by:
• 1) The European Community,
• 2) The Common Foreign and Security Policy (CFSP)
• 3) As well as the Justice and Home Affairs (JHA).
• The three pillar structures reflects the division between the so-called “community method” and traditional intragovernmental cooperation.
• EU citizenship is created.

• ➔ Between 1993 and 2009, the European Union (EU) legally comprised three pillars. This structure was introduced with the Treaty of Maastricht on 1 November 1993, and was eventually abandoned on 1 December 2009 upon the entry into force of the Treaty of Lisbon, when the EU obtained a consolidated legal personality.
• ◆ The European Communities pillar handled economic, social and environmental policies. It comprised:
• A. The European Community (EC),
• B. The European Coal and Steel Community (ECSC, until its expiry in 2002), and
• C. The European Atomic Energy Community (EURATOM).
• ◆ The Common Foreign and Security Policy (CFSP) pillar took care of foreign policy and military matters.
• ◆ Police and Judicial Co-operation in Criminal Matters (PJCCM) brought together co-operation in the fight against crime. This pillar was originally named Justice and Home Affairs (JHA).

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Community Method is the cooperation method on which the Union is based. It provides for a stronger method of cooperation and functional sovereignty integration.

The second and third pillars are closer to ordinary forms of intergovernmental cooperation.

Difference between community method and intergovernmental one:

A. Intergovernmental community: is what traditionally and ordinarily happened at international level even in context of other IO and international treaties.

B. Community method is characterized by many profiles:

• A. Ever since day one in the progress of integration there are institutions which are created to do the interests of the community itself (commission that promotes interest of EU and ECJ judicial bodies to ensure that institutions comply with law) and not of single member states.
• B. The unanimity principle was reduced for almost all the competences conferred to EU, only a few sectors today have this method still in place. The basic rule of international legal order is that the states are all equal. In the Council there used to be the unanimity principle so a sort of veto power for the members and now instead we have the rules of → the qualified majority principle which is now an important element for the community because it balances the role of members. Qualified majority method is one of core elements of the community method because it affects in a significant way national sovereignty. If you look,
• C. Possibility for the EU to adopt binding legal acts.
• D. Also the role of the court of justice is important because the presence of a system of judicial review which allows the enforcement of Eu law is another essential feature of the community method.

• The so-called Economic and Monetary Union is established.
• Further reinforcement of the role of the EU Parliament = creation of the co-decision procedure (now, under the Lisbon Treaty, the ordinary legislative procedure).
• The fundamental principles of subsidiarity [which is a primary source of EU law] and proximity are codified in the text of the Treaty (they deal with the exercise of competences by the EU institutions).
• ➔ In areas in which the European Union does not have exclusive competence, the principle of subsidiarity, laid down in the Treaty on European Union, defines the circumstances in which it is preferable for action to be taken by the Union, rather than the Member States.
• New competence are conferred to the EU (es. consumer protection, healthcare, industry, etc.) and others are strengthened.
• The Maastricht Treaty formally acknowledged that the EU respects individual fundamental rights as well as the national identity of its Member States.

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Amsterdam Treaty 1997

• After the Fall of the Berlin wall (1989) the division of the world in two blocks ended (or was thought to have ended, as we see nowadays).
• Several states are now interested (and free) to join the EU.
• Also in the light of the envisaged enlargement, there is a clear need to revise and simplify the rules governing the functioning of the EU (e.g. the decision making procedures).
• Intergovernmental Conference of Turin (1996) and the Dublin European Council (1997).
• Partial amendment of the pillar structure:
• Replacement of the third pillar = Justice and Home Affairs (JHA) has been replaced by the “police and judicial cooperation”.
• “Communitarization” of visas, immigration, asylum and other policies related to free movement of persons (included cooperation in civil justice matters).
• Introduction of enhanced cooperation for first and third pillar (Europe «à la carte») – examples?
• ➔ To foster integration between member states. As the number of the member states was increasing significantly, this innovation gave the possibility to a reduced number of member states to proceed with a project even though a number of member states did not agree with that. Therefore it is possible to proceed with an initiative even if there is not the agreement of everyone Es. Euro.

Helped the two purposes:

• ◆ Allowed a strict number of members to proceed even if not all members agree.
• ◆ If that form of enhanced cooperation will be useful then the other will probably join.

• High Representative for the Common Foreign and Security Policy.
• Codification of the principle of transparency for the activities and documents of the EU institutions.
• «The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.» (art. 6 TEU)
• Introduction of a special procedure to ensure their respect by the Member States (art. 7 TEU = the Council, on proposal of 1/3 of the Member States or of the Commission, and with the assent of the Parliament can determine tha