European Law

Thursday 2nd March - European Union

The EU is an ongoing organization concerning politics, economy, society, and culture. It involves democratic states. The EU is an international organization, but it enjoys state features: specific borders.

• EU laws are binding and also prevail over national law — supremacy of EU law (supremacy clause)
• Same currency
• IOs don’t usually have a parliament, but the EU does

Binary distinction between IOs and states

Why is the EU still an organization? A state is based on three main elements, namely territory, population, and government. The EU has its own territory and citizenship, but it doesn’t have original sovereignty. It’s provided with powers, resources, and objectives by the states — states remain the masters of the organization. The EU doesn’t have competence of competences, meaning that it’s not able to be self-determined because member states give power to the organization, remaining the masters of the union. The EU has partial sovereignty, provided with democratic institutions and a very complex legal order.

Why did Europeans create the EU?

• Pursuit of peace after the two WWs: states should recognize the authority of common institutions above themselves. The rule of force must be replaced by the rule of law. Kant: peace is the impossibility of war.
• 9th May 1950: Robert Schuman made a famous declaration aimed at creating solidarity among Europeans to avoid conflicts among Europeans.
• One big problem was the conflict between France and Germany, proposing a new project for Germany concerning the raw materials in regions like Ruhr, Alsace, Lorraine.

Italy, Belgium, Netherlands, Germany, France, and Luxemburg were the first EU members. The Schuman proposal was rejected by specific democratic countries such as GB.

The process of European integration

• 1951: Steel and coal community (Paris Treaty) taken by majority and not unanimity, binding only the EU member states. The Organization had its own government (higher authority), independent from the other states.
• 1957: Rome treaties — EU economic community aimed at creating a European single market characterized by the absence of tariffs on trade, free circulation of people, free circulation of services, and capitals. It took 30 years to develop this project.
• 1979: Election of the EU parliament appointed by national parliaments (delegation) — all EU laws are decided by the EU parliament.
• 1985: Schengen agreement established initially among France, Germany, Italy, Belgium in order to avoid police checking of ID — free circulation. Only in case of emergency can a state temporarily reintroduce passport control (see FR after a terrorist attack).
• 1992: Maastricht Treaty — not only an economic organization anymore, but even a political one; European citizenship was established; new project of integration single currency.
• 2004: Enlargement to Eastern Europe — reconciliation between West and East.
• 2007: Lisbon treaty (last time EU treaties were updated).
• 2016: Brexit referendum.
• 2020: European recovery fund in order to recover from the pandemic — money came from Eurobonds, basically EU debt.

Enlargement of the EU

First enlargement: UK, Ireland, Denmark in 1973 — stable, united Europe without the UK, strongly ignored by Churchill until that year. De Gaulle vetoed the UK entrance because of the hegemony of his nation, and the UK would become a possible competitor to the French leadership.

• 1981: Greece
• 1986: Spain, Portugal
• 1990: Germany
• 1995: Sweden, Finland, Austria
• 2007: Romania, Bulgaria
• 2019: Croatia

Application for EU membership

• Being a European state
• Compliance with the values of the Union art. 2: human rights, democracy, the rule of law
• Copenhagen criteria (outlined in 1991):
• Political conditions: rule of law (laws as a filter to the political power, depicted by people), democracy, human rights, minority rights
• Economic conditions: free market economy, private property
• Respect the Acquis Communautaire: all the laws adopted before by the EU = a new member state must comply with its own legal system with the previous 70 years of European law

Basic steps:

1. Application
2. Candidate status: state must recall all the requirements
3. Negotiations
4. Accession: Accession treaty must be accepted unanimously by the council, approved by the majority of the European parliaments, and ratified by the states’ parliament.

Withdrawal from the EU

Why did the UK have the possibility to leave the union, while Cataluña did not?

• EU has withdrawal procedure since the Lisbon treaty
• EU is not a state, so it’s possible to leave, differently from a state, which enjoys the principle of territorial integrity — states cannot be broken up territorially

UK and Spain are different, because the country can change the constitution giving the possibility to detach part of the region, but only through a parliamentary decision. In the UK, there’s not a written constitution, so it’s possible; while, within the art. 2 of the Spain constitution definitely states the principle of territorial integrity.

1. Notify the decision to leave to the EU council
2. Process of negotiation (2 years): withdrawal agreement ratified by the country’s parliament, EU council after the EU parliament’s consent

UK difficulties concerned Northern Ireland, financial budget, status of European, trades expansion of the negotiation period.

Thursday 9th March - Values

Etymology: what is worth, defining our identity, it defines the institutional behavior. Examples of values in the EU:

1. Human dignity: not being corrupted, intrinsic value of every person, integrity, whenever an individual is treated as an object there is a violation.
2. Rule of law: guarantee against despotism, a dictatorship of a majority.
3. Equality
4. Pluralism: opposite to totalitarianism, diversity in ideologies and cultures.
5. Freedom
6. Democracy
7. Tolerance
8. Justice
9. Solidarity: in legal terms it refers to the act of gathering together to empower our society and an example could be the respect of the taxation system.
10. Principle of non-discrimination

Membership is based also on the respect of the above-mentioned values:

After entering, some countries stopped respecting them, especially Poland and Hungary.

Hungary

Illiberal democracy, referring to the imperfect nature of democracy. It needs the rule of law, the respect of civil rights, and free elections to be considered as such. Orban was elected in 2010, gaining enough seats to abolish the previous constitution and enforcing a brand new one. The political power is in the hands of the government, the judiciary is dependent on the executive, as an “ad hoc office” directly elects them. Another special office was created in order to control media and pluralism, connected to the limitation of academic freedom. Moreover, a persecution against the LGBT community and NGOs concerning the entrance of migrants, together with the limitation in women’s abortion rights. A famous event was the stopping of thousands of asylum seekers at the borders of Serbia.

Poland

2015 with the election of Duda and the conservative party of “Law and Justice.” Since they had no majority large enough to change the constitution, hence they changed the law regarding retirement, anticipating it for 30% of judges. Later they established an office within the Supreme Court, in order to control general judges’ activity, considering every decision against the government as misbehaving.

Political sanction, Article 7: unanimity is required and it implies the banning from voting. Of course, the issue is unanimity.

Interpretation of Article 2 by the European Court of Justice towards an obligation to the respect of judiciary independence. In the case of violation, there are monetary sanctions, as Poland is paying 1,000,000 euros to the Union.

Recovery Fund after the 2020 Pandemic: the respect of the rule of law is the main requirement to access it. This tool has been used in December 2022 against Hungary.

Objectives

• Article 1: final aim, the “ever closer union” principle, meaning that the union of tomorrow will be more united than today.
  • Federalism
  • Dynamism
• Article 3:
  1. Internal market: free circulation of people, goods, services, and capitals, without export tariffs, the need for new titles and patents.
  2. Area of freedom, security, and justice: one united territory without internal frontiers, but with common external borders, not based on territorial elements but on basic elements such as immigration and citizenship, justice, and security.
  • Schengen: no passport is needed
  • Frontex: coordinate the difference national authorities in the European seas mainly concerned with migration
  • European Arrest Warrant: every European citizen can be criminally judged in every country of the Union, without extradition
  • European citizenship: political rights wherever in the Union, freedom of movement without any discriminating Visa, protection abroad by an embassy
  3. Economic and Monetary Union:
     • Fiscal: taxes, public debt, and budget, asymmetric in the national systems
     • Monetary: how much money circulates in the Union, decided by the Central Bank
  4. Common external action: one entity towards the rest of the world, with exceptions to the defense and foreign policies

One course of action: sovereign powers are needed to implement such objectives, for example, monetary functioning. Second way, transitioning to an IO: coordination of all states’ actions.

Thursday 16th March - The Institutional Framework

What is an institution?

It is a subject aimed at achieving specific goals through the development of EU policies. An important feature of EU subjects is the “confederal” element, meaning that their power is limited by the member states through treaties. They are based on two concepts:

• Mutual cooperation toward the achievement of a common interest, both among institutions and also between them and the state.
• Institutional balance: not the usual division of the three power branches, but more on the dualist level of states and IOs. It implies that each institution has its own number of tasks, which do not interfere with another institution’s competence, but still help out.

In the EU, we have 7 institutions, plus many other smaller entities such as committees. It is important to underline that there are some entities which are seen as part of the EU, but instead they are not:

• The Council of Europe: it is based in Strasbourg, however, it does not belong to the formal EU institutions. It was founded in 1949 and it was essential because it helped to enforce the European Convention of Human Rights both in the actual European countries, but also in many others such as Turkey and Norway.

The 7 EU institutions can be grouped based on two important distinctions:

• Political vs. technical: the first chosen through national or regional elections, while the second designated for their professional competences. Example of technical appointments are the President of the EU Bank (Lagarde) and the ECJ.
• Supranational vs. intergovernmental

The European Council

• Intergovernmental
• The members are the leaders and heads of the executive, except for the case of France in which the leader is also the head of state + the President of the EU Council (Charles Michel) and the President of the EU Commission, both however have no voting rights
• It meets every 4 months in Brussels and the conclusions of those meetings function as instructions for the other institutions, especially for the political ones
• The task of “consensus”: the President of the EU Council talks singularly to each member leader and tries to find a draft which he thinks could be accepted by all the members. If it is, the decision is automatically implemented; in the case of objections, the process starts again and sometimes to facilitate the implementation of a decision, the Council accepts even majority
• It appoints the President of the EU Bank and the Higher Representative for Foreign Affairs and EU Policies

The European Parliament

• The members are elected every 5 years through 7 different systems of national elections, for a total amount of 705 members
• Unproportionate representation: citizens of smaller countries are more represented, because in bigger ones you need higher levels of support to be elected
• Divided into political parties
• It is charged with the legislative function, through the instrument of democratic scrutiny, and of the annual budget

The Council of Ministers of the EU

• A minister for each country, based on the topic of interest
• It is charged mainly with the creation of laws and the control of the annual budget
• It also implements economic laws
• Every 6 months a country is appointed to lead the council, except for the ministry of foreign affairs
• To implement a law, it needs a double majority: 55% of member states and majority of the EU citizens

The European Commission

• Supranational executive body
• All nationalities are represented
• It has the monopoly for the proposal of new laws
• It controls the right implementation of laws, reporting eventual violations to the ECJ
• It is the representative of the EU worldwide