European Constitutional Law

European constitutional law

A.Y. 2017-2018 1.2.3. Summary

First part: Europe’s integration process

• Institutional analysis and European union’s organization.....................................................................6
• European institutional framework.......................................................................................................22
• European Union sources of law..........................................................................................................37
• Constitutionalizing of the EU legal order...........................................................................................43
• Principles.............................................................................................................................................46
• Principles: Primacy.........................................................................................................................46
• Principles: Direct effect.............................................................................................................56
• Principles: Duty of consistent interpretation..............................................................59
• Principles: State liability..........................................................................................................60

Second part: The multilevel protection of fundamental rights

• Fundamental rights beyond the State..................................................................................................62
• European Convention of Human Rights (ECHR)...............................................................................64
• The European protection of fundamental rights...............................................................................67
• Differences between the ECHR and CJ..............................................................................................72
• Solemn Proclamation of the Charter of Fundamental Rights of the EU.............................................77
• European Union after the Lisbon treaty: beyond the Charter.............................................................80
• European Union after Lisbon Treaty: origin of the Charter................................................................86
• The EU accession to the ECHR..........................................................................................................89
• The EU accession to ECHR and the Treaty........................................................................................94

4.5.

First part: Europe’s integration process

Institutional analysis and European union’s organization

According to history, we can place the rise of the European Union project at the end of the WW2. The war showed the decline of monadic State that found expression in the spread of inter-state cooperation. Ideas concerning federalization of Europe appeared with the rise of international cooperation: the various efforts at European cooperation after WW2, formed part of this general transition from an international law of coexistence to an international law of cooperation. This changed reality was at the basis of the project of giving a new birth to Europe.

The two acts/documents that better summarize the idea of the EU project are:

• The speech of Winston Churchill: «The dangers threatening us are great but great too is our strength, and there is no reason why we should not succeed in achieving our aims and establishing the structure of this united Europe whose moral concepts will be able to win the respect and recognition of mankind, and whose physical strength will be such that no one will dare to hold up its peaceful journey towards the future» Strasbourg, 12 August 1949

It's interesting because it is the first time that the expression united Europe was used. “United Europe” and “peaceful” are emblematic for the European integration: unification and peace, two elements mutually connected.

• The Monnet-Schuman declaration was delivered 1 year later. «World peace cannot be safeguarded without the making of creative efforts proportionate to the dangers which threaten it. [...] A United Europe was not achieved, and we had war»

There are links between this declaration and the previous: first the attention for the word “peace” (the aspiration for peace is related to the WW2). The unification of Europe is an instrument for peace; at the end of the WW1, the traditional peace treaty and the traditional philosophy, was that loser lose and the winners win. All tools which had unfortunately been the reasons of the WW2, because the rise of Hitler depends on heavy sanctions to Germany, the debt was so heavy that Germany ends to pay the war debt at the end of 2010.

So, only united Europe can stand to peace. The long peace in Europe that had never been before is the reason for the winning at Nobel prize. 6.

The European integration history has been from the beginning, also a political process: unification and peace. This is why the unification is a long process that is still in course. There were different preferences for the union, the most popular was for the federalization like USA, others preferred the independence of countries but with common laws, others preferred the so-called functionalism that was proposed in the Monnet declaration and then chosen as European Union model. Probably it was the only alternative possible at time.

On 9 May 1950 Robert Schuman, the French foreign Minister said: “Europe will not be made all at once, nor according to a single, general plan. It will be built through concrete achievements which first create a de facto solidarity”. With these words is official that Europe will be formed by taking measures which work primarily to bring about real solidarity. The idea of a nation state was born in Europe not in the USA and the USA federal model was not adequate.

Why the USA federal model was not adequate for the European Union?

In Europe, States were established a long time ago. States are political entities and the only organizations with sovereign powers and sovereignty was indivisible. States have not superiors, when the nation state was established also the international law was born and it was the law constituted of coordination and voluntary contracts. According to an international law perspective, all states are equal, and this is why they don’t recognize superiors. Therefore, it seemed difficult that States would renounce to their superiority and sovereignty to a federal level. Because each member state will not be sovereign, that will be the federal government.

The European Union is best understood as a “Federation of States” instead of “Union of State”.

To pursue the unification, States have to proceed step by step, the federal union state will be the final step.

The unification of EU was built through concrete achievements and this is why the process is named functionalism: step by step, in the end everything will be in common.

The first idea was to create a supranational authority which could be representative of EU states but independent from them. This supranational authority of course represents the EU states but it can’t decide instead of the states members.

The Schuman-Monnet declaration

On 9 May 1950 Schuman proposed the managing of coal and steel in order to build a European Community for Coal and Steel (ECSC) 7.

"The pooling of coal and steel production... will change the destinies of those regions which have long been devoted to the manufacture of munitions of war, of which they have been the most constant victims."

The ECSC was first proposed as a way to prevent further war between France and Germany by tracking the root cause of war. France wanted to "make war not only unthinkable but materially impossible" which was to be achieved by regional integration, of which the ECSC was the first step. The Treaty would create a common market for coal and steel among its member states (not only France and Germany) which served to neutralize the age-old competition between European nations over natural resources, particularly in the Ruhr.

Peace is the result of the de facto solidarity. Too many interests are in common and we can’t war each other.

Address on the State of the Union 2015

Every year the president of the commission has a speech in front of the EU states representatives and it is called address.

“Recent events have confirmed the urgent need for such a political approach in the European Union.

This is not the time for business as usual.

It is time to speak frankly about the big issues facing the European Union.

Because our European Union is not in a good state.

There is not enough Europe in this Union.

And there is not enough Union in this Union”.

He said those words, because these are hard times and one of the most difficult challenge, the crisis, makes it difficult living together. Not enough Europe: Juncker said that in the last time EU has renounced to build its identity. Not union: i.e. Brexit.

Address on the State of the Union 2016

“Our European Union is, at least in part, in an existential crisis. Never before have I seen such little common ground between our Member States. So, few areas where they agree to work together. Never before have I heard so many leaders speak only of their domestic problems, with Europe mentioned only in passing, if at all. Never before have I seen so much fragmentation, and so little commonality in our Union.”

Strasbourg, 14 September 2016

Address on the State of the Union 2017

8. “We only had two choices. Either come together around a positive European agenda or each retreat into our own corners. We now have a window of opportunity, but it will not stay open forever.”

Bruxelles, 13 September 2017

Council of Europe

The Council of Europe is an international organization established on 5 of May 1949. In origin it involved only a small number of states (Belgium, Denmark, France, Ireland, Italy, Luxemburg, the Netherlands, Norway, Sweden and the United Kingdom). Now it involves 47 states (EU + Russia + eastern Europe countries). The Council of Europe and the European Union interact a lot and create a constitutional dimension for EU.

The Council of Europe is an organization very specific because its aim is to uphold human rights, democracy, rule of law in Europe and promote European culture. It doesn’t do with economic field.

The Council of Europe cannot make laws, but it does have the power to enforce select international agreements reached by European states on various topics. The best known body of the Council of Europe is the European Court of Human Rights, which enforces the European Convention on Human Rights (4 November 1950).

European union

The Treaty of Paris was signed on 18 April 1951 between France (wanted to play an important rule to face the power of USA over Europe), West Germany, Italy (both Germany and Italy were interested in taking part because they were the great losers and wanted to gain a new credibility at international level) and the three Benelux countries (Belgium, Luxembourg, and the Netherlands, small countries, joined because of the opportunity to have the same weight of the bigger ones), establishing the European Coal and Steel Community (ECSC), which subsequently became part of the European Union. It was established to make real the Monnet declaration, for the management of coal and steel. The treaty was seen as producing diplomatic and economic stability in western Europe after the Second World War. Some of the main enemies during the war were now sharing production of coal and steel, the key-resources which previously had been central to the war effort.

International organizations and international treaties

Both the Council of Europe, for democracy and human rights, and ECSC for managing coal and steel production, were from a formal point of view, international organization established with international treaty. 9.

An international treaty is an agreement under international law between sovereign States (or International Organizations) willing to impose obligations on each other. States are considered the high contracting parties and the masters of the treaty because can modify or withdraw.

Treaty making procedure

International phase: negotiation and signature. The treaty is signed by the plenipotential of states, but has no effect yet.

National phase, only after notification the treaty becomes part of national law, without ratification it cannot be applied and has no implementation.

Both phases are necessary for a legally bounded treaty.

European Coal and Steel Community (ECSC)

Established by a treaty: formally is an international organization BUT with institutions and competences which made it different from all other international organizations from a functional point of view. An international organization is made up of states and all decisions need to be accepted by states to become affected (each member state has to implement through an internal act). The ECSC has an institutional framework, has then a supranational aspect: negotiated power is delegated to an authority by governments of member states set above national institution. It can in some situations apply law to states immediately, without an internal act.

ECSC institutions

Original institutional arrangement:

• Assembly: made up of national Parliaments’ delegates; advisory powers
• Council: made up of national government representatives; link between States and ECSC
• High Authority: body independent from MSs; made up of international civil servants; decision-making power
• Court of Justice: made up of judges; judicial power

European defense community

Proposed in 1952 aimed to establish a pan-European defence force under a European minister of defense. Ratification of the treaty was refused by the French national assembly in 1954. This second step should be a very important one cause was supposed to be establishing a EU army to put in common the security and work in the way of a political integration, but the same France refused to ratify. So, it was an important stop to integration process because at time after the EU defense any project to move into a political integration was abandoned.

The treaties of Rome 1957

10. The Treaty of Rome (TEEC), is an international agreement that brought about the creation of the European Economic Community (EEC), and the European Atomic Energy Community (EURATOM).

In 1957 we have 3 different community, the EEC focused only on economic but with a very large field of action and ECSC and EURATOM.

Objectives of the Treaty of Rome: common market (custom union, 4 fundamental freedoms, competition policy regulation of state intervention in the economy, harmonization of fiscal regimes of goods, general cooperation in economic fields).

Institutional arrangement

• Assembly: made up of national Parliaments’ delegates; advisory powers (later, budgetary power)
• Council: made up of national government representatives; decision-making power (“legislative” power)
• Commission: body independent from MSs; made up of international civil servants; decision-making power
• Court of Justice: made up of judges; judicial power commission assembly council

Luxemburg compromise 1966

Whereas the founding fathers of the EEC (Konrad Adenauer, Robert Schuman and Jean Monnet) were avowed European integrationists, Charles de Gaulle was first and foremost a French nationalist. In 1960 de Gaulle believed that a council of the heads of government should be created with a secretariat in Paris. He desired a European institution that would give France greater power in Europe. He also sought to create a political union to further the economic union already in existence, the European Economic Community. The Dutch were quick to block that proposal, preferring to keep any political union talks within the Western European Union.

In July 1965, Charles De Gaulle boycotted European institutions due to issues he had regarding new political proposals by the European Commission. This event, known as The Empty Chair Crisis, affected the European Community. Several issues regarding European political integration led to The Empty Chair Crisis. De Gaulle believed that national governments should move towards integration and did not agree with the Commission's attempt to create a shift towards supranationalism, extending powers beyond national borders.

The solution: where, in the case of decisions which may be taken by majority vote on a proposal of the Commission, very important interests of one or more partners are at stake, the members of the council will endeavor, to reach solutions which can be adopted by all the members of the council. 11.

Agreement to disagree: a de facto veto power was given to every state on topics that were deemed to be ‘very important national interest(s)'. If one member says this is very important for my nation, another discussion must be taken.

During the 60s the political integration was low but at legal level, there were much more integration: the European community can be considered a federal state only from a legal aspect. Thanks to the power of veto states knew that crucial decisions for a country could have been renegotiated.

During 70s and 80s

• 1973: The first enlargement, U.K., Ireland, Denmark
• 1981: Greece (10 MSs)
• 1986: Spain and Portugal (12 MSs)
• 1986: Single European act

The single European act fixed the Completion of the internal market by 31 December 1992.

From 1950 to 1986 we haven’t any modification of the treaties, the single European act is the first and most important modification. There was some Institutional reform (cooperation procedure, formal recognition of the European council).

The most important was Laying down of foundations for greater economic and monetary integration and the Intergovernmental cooperation in foreign policy.

The road to Maastricht

In 1987 council decided on the “vote to go to a vote”: if a simple majority of MSs vote to go to a formal vote, then a vote must be taken (o