Appunti + casi + schemi riassuntivi Advanced European Union Law

Advanced European Union Law

Lecture 1

CONTENT:

The member states of the European Union are 27 now, since UK left EU on 31 January 2020. The Brexit is relevant

because it is the first time that the number of members of 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.

European Coal and Steel Community. European Community with the Treaty of Rome 1957.

In the 80s the enlargement process began. Initially states are candidates, after they fulfill some conditions they

become official candidates. If one member state oppose to a state regarding the joint of 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 population decided not to join 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.

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The 1 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 to a tot. of 25 member states. Such countries were the countries previously under the Soviet Union domain.

(at the time Germany was actually spit into a west and east side, when we refer to Germany as a funding member

we talk about the west side). Romania and Bulgaria will join later in 2007, and Cyprus and Malta will join later on.

Countries in western balcans + Albania are candidates and potential countries which have started negotiations

(negotiations have been stop in the case of Turkey due to political reasons).

Kosovo not yet independent. Slovenia joined in 2005, while Croatia in 2013. The idea was to include also the rest of

balcans within the EU but such process will take time.

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 is a very big country (it would become the second after Germany if it entered EU),

its entrance into EU has been slowed down by some member states. At the moment, Turkey government is very

strict and therefore not the best for collaboration. For this reason, Turkey will not become a member of EU soon, but

will remain an important trade partner.

UK till December is still in transitional period, even though not part of 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.

EU 446 million people, bigger than US, Russia, Japan, but smaller than China and India. But bigger than 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 UK would have become a member immediately, but

that it would have surely supported such plan.

“Manifesto di Ventotene” by Spinelli and others promoted unification of Europe after ww2 in italy. This idea was

supported by a group of intellectuals across different European countries.

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Jean Monnet. Robert Schuman 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 for EU idea. What usually generated the conflict

between the two countries is that there were 2 areas next to one other, Loraine in France and Alsace in Germany,

which were really important for the production of weapons and that therefore both the countries wanted to

possess. Alsace Loraine

For this reason in 1950s the core project was to put together the management of coal and steel in order to avoid

clashes like for ww1 and ww2. Therefore there was the necessity to unify the power under a common authority,

opened to the participation of other European countries.

In Italy there was an historical support regarding EU. Alcide de Gasperi strongly supported such 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 EU.

Adenauer was Germany prime minister at the time. st

Schuman speech is considered the start of EU integration process. The 1

Treaties enter into force in 1952 (signed 1951). European coal and steel

community 1952. During 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 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. Aude to Joy of Beethoven is the European antem. There are 24

official languages, to which have 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.

Ursula von der Leyenis 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 EU key player

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 European Council

is Charles Michél (voice of the Member States).

Hierarchy of EU institutions: European

Council Council of

European Ministers

Eu. Commission

Parliament (The Council)

Economic and Committee of

Court of social

Court of Justice Regions

Auditors Committee

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 change accordingly 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 the one for food security.

The Council of Ministers is composed by 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.

European Commission makes technical proposal for legislation. It’s a guardian of treaties, check 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 happen through this body.

European Court of Justice has 27 members, one for each member state. It ensures the correct interpretation and

application of law. European Ombussman, helps with conflicts between institutions and citizens, the name it’s a

Scandinavian word, in Italian its called difensore civico.

ECB Christine Lagarde is the president, previously president of IMF.

Europe Direct Center, each region has a number of centers, points of connection between 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 concern goods

at the very beginning).

This two elements are at the core of European integration.

Lets 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 ketch of the idea behind EU (a single market based on the

4 freedoms). Then 2 years later, a group of layers chaired by Jean Monnet wrote the Treaty of EEC, refining the

concept of 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 of 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 internal market is not the only element but one of the most important.

EU legislate new issues, for example e-commerce and technology. There is the problem of tax treatment in

company 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 product across EU. Usually such headquarter is 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 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, ex on the 4 freedoms

and other provisions.

Art 3 TEU and art 26 TFEU contain a reference to internal market.

Art 3 TEU has the aim of clarifying the key objectives of the treaty.

1. The Union’s aim is to promote peace, its values and the well-being of its peoples.

2. 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.

3. 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 advance.

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.

4. The Union shall establish an economic and monetary union whose currency is the euro.

5. 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.

6. 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 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 allow the EU to have a competitive economy w. r. t. third parties such as 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.

The main institutions of 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 of 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 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.

- Are where the 4 freedoms are ensured and guarantee.

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 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 airlines 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. Lets 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.

2 different kinds of integration:

- Positive

- Negative

Negative integration is related to the 1°phase or 1° 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. 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 is 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.

Lets now take a look at positive integration. In the 80s, the European Union stared to adopt specific acts and

initiatives to promote the functioning of the internal market. This new strate