European Union Law

European Union Law

By Russo Luca

Summary

Object of the course 9 The European Coal and Steel Community (ESCS) 9 European Defence Community 10 From the EEC to the European Union 10 What changed with the Lisbon Treaty? 12 EU Enlargement Process 13 Process for EU Adhesion 13 Accession criteria 14 The legal nature of the EU 14 International Organisation 14 The European Union 14 The evolution of the Union’s aims 15 Is EU Law international law? 16 The legal nature of the EU according to the CJEU 16 Van Gend & Loos 16 Costa v. Enel (1964): Primacy 17 Opinion 2/13, Draft Accession Agreement of the EU to the ECHR (2014) 18 Some information on the Court of Justice of the EU (CJEU) 19 To sum up 19 How to read a Court case 20 Court of Justice of the European Union 21 EU Membership 22 Accession to the EU 22 Procedure 23 After Accession 23 Suspension of EU membership rights 23 Protecting the rule of law: other tools 26 Withdrawal from the EU - Art. 50 TEU 26 Genesis and Rationale of the Exit Clause 26 Exit Procedure 28 Brexit 28 Competences of the EU 29 Principle of confederal 29 negative vs positive 29 vertical vs horizontal 30 internal vs external 30 express vs implied 30 Revision of competences 30 EU Competences after Lisbon 31 Principles governing the exercise of competences 37 Principle of subsidiarity 37 Principle of Proportionality 38 Ex-ante control 38 Commission 38 National Parliaments 39 Ex-post control 39 Equality & loyal cooperation 39 External competences 41 EU Institutional Framework – Part I European Commission 41 The EU political institutions 42 Separation of powers 42 The EU political institutions - representation 43 European Commission 43 Composition 45 The College of Commissioners 45 Appointment Procedure 46 An Election of the President? 47 Spitzenkandidaten 2014 vs 2019 48 Accountability of the Commission 49 The tasks of the Commission 50 Main Tasks 50 Legislative initiative 50 Guardian of the Treaties 50 Implementing and delegated acts 51 Budgetary initiative & execution 51 Agenda setting and external relations 51 Agenda setter 51 External representation 51 Decision-making 51 Internal organisation 52 The President of the Commission 52 High Representative of the Union for Foreign Affairs and Security Policy 52 Technocratic or political? 53 Political? 54 Technocratic? 54 The 2019-2024 Commission 54 EU Institutional Framework – Part II Council and European Council 54 Council of the EU 54 Composition 55 Council configurations 55 Presidency 56 FAC: High Representative 57 The Eurogroup 57 Tasks of the Council of the EU 57 COREPER 57 Voting system 58 European Council 58 Composition 59 Presidency 59 Meetings 60 Institutional role and specific tasks 61 Decision-making 61 European Council conclusions, 24 February 2022 62 EU Institutional Framework – Part III European Parliament 63 Evolution of the EP over the Years 63 Geographical Composition 64 Provisions on electoral procedure 65 Current system of elections 66 Political Composition 66 Internal organisation 67 Powers 67 The EU democratic deficit 67 National Parliaments 68 Subsidiarity control 69 EU Institutional Framework – Part IV Other institutions & recap 69 Other institutions & Bodies 69 The Court of Justice of the EU 69 The Court of Auditors 70 The European Central Bank 71 Governance of the ECB 73 Advisory Bodies 74 Agencies 75 Recap & inter institutional relations 75 Sources of EU Law– Part I The Treaties 77 EU Primary Law: The Treaties (TEU and TFEU) 78 The use of simplified procedure for the ESM 81 Passerelle Clauses 82 Brake Clauses 82 Substantive limits to the revision of the Treaties 82 Constitutional dimension of the Treaties 83 Direct Effects 85 Case 41/74, Van Duyn v Home Office, Judgement of 4/12/1974 85 Case 43/75, Defrenne vs Sabena, judgement of 8/4/1976 86 Sources of EU Law– Part II Intermediate level 87 General principles of EU law 88 Sources of inspiration 88 Fundamental Rights 88 Case 44/79, Liselotte Hauer 89 Proportionality 91 Methodology followed by the ECJ 91 EU International Agreements 92 Principles and Objectives of the EU External Action 92 External explicit competence 94 External implied competence 94 The ERTA judgement 94 Laying-up fund opinion 95 Opinion 3/15 96 Nature of the EU External Competence 96 EU Mixed Agreements 97 Effects EU International Agreements 97 Direct Effect & Validity review of EU measures 98 Customary International Law 98 Sources of the EU law-Part III 100 EU Secondary law-Acts of the EU Institutions 100 Legally binding vs non-legally binding 101 Legal Instruments 101 Common features (notably, of legal binding acts) 102 Legal basis 102 Sources of EU Law – The Charter of Fundamental Rights of the European Union 103 What are fundamental rights? 103 How to Protect Fundamental Rights? 104 Origins of Protecting Fundamental Rights in the EU 104 How the Court of Justice Protected/Protects Fundamental Rights 105 General Principles of EU Law 105 Common Constitutional Traditions 105 International Human Rights Instruments 105 Presenting the EU Charter of Fundamental Rights 106 A Practical Approach to Interpreting the Charter 106 Using the Charter –Legislative Protection 107 Using the Charter – Executive protection 108 Using the Charter – Adjudicative Protection 108 Sources of EU Law– Part III EU secondary law – Legal instruments 110 Regulations 110 Decisions 111 Directives 111 Direct effect: recap 113 Vertical and Horizontal DE 113 Direct effect of directives 113 1. VDE: Broad notion of “State” 114 Case C-152/84, Marshall 114 2. Indirect effect - Consistent interpretation 115 Case C-106/89, Marleasing 115 Are there limits to consistent interpretation? 116 3. Indirect effect –through EU primary law 116 4. State liability – Action for damages 117 ECJ, judgement of 19 November 1991, Joined cases C-6 and 9/90, Francovich 117 Conditions for State liability 117 Solving inconsistencies/conflicts between national law/EU law 118 Summary: When does EU law have direct effect? 118 “Effect of direct effect” 118 Acts and Procedures 119 Implementing and delegated acts 119 Decision-making procedures in the EU 120 Ordinary vs Special 121 OLP 121 Trilogues 122 SLP 123 Legislative initiative 126 Citizens’ Initiative 127 Commission’s power to alter the proposal 127 Legislative work in the EP 127 Legislative work in the Council 128 Interinstitutional relations 128 The comitology 128 The Lisbon Reform 128 Democratic legitimacy of EU decision-making 131 Input and output democracy 131 The EU budget, the budgetary procedure and NGEU 131 Content 131 1. Annual budget and MFF 131 2. Own resources 135 3. The procedure for the adoption of the budget 135 Budget amendments 138 Execution of the EU Budget 139 4. The new EU long term budget for 2021-27 and Next Generation EU 139 NGEU’s Priorities 140 What happened in 2020 with the pandemics? 142 The court of justice of the European Union 143 The institution 143 Structure 143 Composition Court of Justice 144 Appointment procedure 144 Judges 145 Advocate - Generals 145 Composition General Court 146 Structure 146 Jurisdiction 147 Direct actions: 147 Indirect actions: 147 Other actions: 147 Jurisdiction CJ and CG 147 Jurisdiction of the CJEU at a glance 148 Appeals 148 Legal Proceedings 149 Preliminary Rulings 149 Who may bring a preliminary reference? 150 Scope and purpose of the preliminary reference 150 When should a preliminary reference be referred? 151 Whether the case raises doubts concerning EU law 151 Whether the national court may or must refer 151 Faculty/duty in relation to validity questions (Case C-314/85 Foto-Frost) 152 Form and content of the reference 152 Reformulation 152 Phases of the procedure 152 Effects of the CJ’s preliminary rulings 153 Reforming the system? 153 Annulment Actions 153 Reviewable acts 154 Applicants 155 Grounds of Annulment 156 Time-limits and jurisdiction 157 Effects of annulment 157 Action for failure to act 158 Reviewable Omissions 158 Procedure and Outcome 159 Extracontractual liability of the EU 159 Defendants 159 Conditions 160 Time-limit, jurisdiction, effects 160 Infringement Procedures 160 Scope 161 Purpose 161 Infringement Procedure initiated by the European Commission 161 Pre-Contentious phase 162 Contentious phase 163

7 March 2022

Object of the course

While the European Union has been facing unprecedented challenges (such as Brexit), threats to the rule of law in some Member States, the Euro-zone crisis, the “refugee crisis” and, more recently, the pandemic crisis, its objectives and purpose are often contested in the national political discourse. Against this background, there is a pressing need to understand how the European Union works and what is its relationship to the Member States and their national legal systems. What is the legal nature of the EU? How does it work? Who sits in the EU institutions? How do EU law and national law interact? What is the role of the Member States in the EU? And what does it mean to be an EU citizen?

The European Coal and Steel Community (ESCS)

The European Coal and Steel Community (ECSC) was a European organisation created after World War II to regulate the coal and steel industries. It was formally established in 1951 by the Treaty of Paris, signed by Belgium, France, Italy, Luxembourg, the Netherlands, and West Germany.

The ECSC was an international organisation based on the principle of supranationalism, and started a process of integration which ultimately led to the creation of the European Union.

The ECSC was first proposed by French foreign minister Robert Schuman on 9 May 1950 as a way to prevent further war between France and Germany. He declared he aimed to "make war not only unthinkable but materially impossible" which was to be achieved by regional integration (The strategic importance of the Ruhr) of which the ECSC was the first step. The Treaty would create a common market for coal and steel among its member states with freely set market prices, free movement of products, and without customs duties or taxes, subsidies, or restrictive practices.

The ECSC was overseen by four institutions:

• A High Authority composed of independent appointees,
• A Common Assembly composed of national parliamentarians,
• A Special Council composed of national ministers,
• And a Court of Justice.

N.B. These would ultimately form the blueprint for today's European Commission, European Parliament, the Council of the European Union and the European Court of Justice.

The 1967 Merger (Brussels) Treaty led all of ECSC's institutions to merge into the European Economic Community, but the ECSC retained its own independent legal personality.

In 2002, the Treaty of Paris expired and the ECSC ceased to exist in any form, its activities fully absorbed by the European Community under the framework of the Amsterdam and Nice treaties.

European Defence Community

The Treaty establishing the European Defence Community, also known as the Treaty of Paris, is an unratified treaty signed on 27 May 1952 by the six 'inner' countries of European integration: the Benelux countries, France, Italy, and West Germany. The treaty would have created a European Defence Community (EDC) with a pan-European defence force.

The treaty failed to obtain ratification in the French parliament and it was never ratified by Italy, so it consequently never entered into force. Instead, the London and Paris Conferences provided for West Germany's accession to NATO and the Western European Union (WEU, a largely dormant successor of the 1948 Western Union, WU, which had already been cannibalised by NATO).

The formation of a pan-European defence architecture, as an alternative to West Germany's proposed accession to NATO, was meant to harness the German military potential in case of conflict with the Soviet bloc.

The Pleven Plan and EDC were meant to prevent the military possibility of Germany making war again.

From the EEC to the European Union

1. 2 Treaties: EEC Treaty and Euratom Treaty, in force from 1° January 1958.

• EEC Treaty: framework for the next steps of European integration Towards economic integration Messina Conference (1-3 June 1955).

The 6 States of the ECSC affirmed their determination to ‘to make ‘further progress […] towards the setting up of a united Europe by the development of common institutions, the gradual merging of national economies, the creation of a common market and the harmonisation of their social policies’.

The treaty proposed the progressive reduction of customs duties and the establishment of a customs union. It proposed to create a single market for goods, labour, services, and capital across member states. It also proposed the creation of a Common Agriculture Policy, a Common Transport Policy and a European Social Fund and established the European Commission.

Institutional framework: own Commission and Council + ECSC Court of Justice and Assembly.

• Commission: right of initiative and watchdog of community law.
• Council: legislative and executive power.
• Parliamentary Assembly: consultative role.

N.B. Reference in the Preamble to “an ever closer Union among the peoples of Europe''.

2. Merger Treaty (1965-67): Common institutional framework for the three Communities.

‘Commission proposes, Council disposes’.

3. Single European Act (1986-87): Role of European Parliament (directly elected by citizens since 1979) enhanced through the cooperation procedure (applying to some Treaty articles). Unanimity vote replaces qualified majority in several fields, including internal market.

Conferral of new competences (including environment and economic and social cohesion). Creation of the Court of First Instance Art. 100a EEC: allowing for positive harmonisation: enacting EC legislation approximating national laws. Establishing the internal market by 1992.

4. Maastricht Treaty (1992-93): EC Treaty + Treaty on European Union.

Three pillar system:

• European Community.
• Common Foreign and Security Policy.
• Justice and Home Affairs.

2 and 3 pillars: intergovernmental decision-making.

Further enhancement of the role of the EP with the codecision procedure (joint adoption of legislation by EP and Council). Parliament also gains veto over the Commission appointment. Further expansion of EU competences (in public health, industrial policy, consumer protection, development cooperation, education). European citizenship is established.

5. Amsterdam Treaty (1997-99): Incorporation of the Schengen Agreement and Schengen law (acquis).

Competence to enact (within the limits of powers conferred to the Union) legislation to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation (Article 13 EC, now 19 TFEU). Enhanced cooperation is introduced.

6. Nice Treaty (2001-03): Preparing for enlargement: institutional changes in the composition of the Commission, the seats in the EP and the weighting of votes in the Council. (before the signature of Nice Treaty): solemn proclamation of the EU Charter Fundamental Rights.

The procedure to react to the clear risk of a serious breach by a MS of the EU founding values is established (Article 7 TEU, preventive mechanism).

7. Constitution for Europe (2004-failed): Innovative method for Treaty revision (convention, with participation also of representatives of national parliaments). Single legal entity, based on a single Treaty (Constitution), which should also incorporate the EU Charter of Fundamental Rights.

Signed in Rome in 2004 by the then 27 Member States, but negative outcome of referenda in France and The Netherlands in 2005 precluded entered into force.

8. Lisbon Treaty (2007- 09):

• No Constitution.
• Two Treaties: Treaty on European Union and the Treaty on the Functioning of the European Union (former EC Treaty).
• ‘Union’ and not ‘Community’.
• Single Legal personality.
• Signed on 13 December 2007.
• Ratification process: Ireland rejects it in a Referendum.
• After a second positive referendum in Ireland, the Treaty entered into force on 1 December 2009.

What changed with the Lisbon Treaty?

• Many changes already introduced by the (failed) constitutional Treaty.
• Pillar system is abolished, however special rules for CFSP (Common Foreign and Security Policy) still apply.
• Charter of Fundamental Rights as primary law.
• Changes in the institutional structure of the Union:
• High Representative for Foreign Affairs and Security Policy.
• European Council becomes an institution.
• New President of the European Council.
• New role for national parliaments.
• Changes in decision-making:
• Ordinary legislative procedure replaces co-decision.
• New delegated and implementing acts.

Art 1 TEU

By this Treaty, the High Contracting Parties establish among themselves a European Union, hereinafter called the Union, on which the Member States confer competences to attain objectives they have in common.

This Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizens.

The Union shall be founded on the present Treaty and on the Treaty o