European law

EU law

The creative and destructive forces of the EU legal order

• The EU and the law of the international organizations
• The first creative force of the EU legal order: the strengthening of the cooperation (from Paris to Oslo and Rome), especially with regard to new legal fields that protect, for example, the consumer or international peace.
• The second creative force: the enlargement from 6 (Belgium, Luxembourg, France, Italy, and Germany) to 28 (-1) member states.
• The crises of the European Union: under different perspectives as political, economic, and refugees ones, and also the fact that some Eastern European countries (Poland and Hungary) show their difficulties to cope with the rule of law.

The constitutive elements of the EU legal order

• The nature of the EU legal order: a new international-law order or a new autonomous legal order?
• The values and objectives of the Union
• The subjects of the legal order: the Masters of the Treaties, the individuals (natural and legal person), the EU institutions, organs, bodies, and agencies.

The functions of the EU legal order

• The law-making
  • The principles governing the EU law-making:
    • Principle of conferral: whereby the EU action is limited only within some specific domains that the member states confer to the EU.
    • Proportionality
    • Subsidiarity
  • The sources of the EU legal order
  • Possible clashes between legal order, the national legal systems, and international law (that the EU is obliged to respect as a member of the international organization).
• The assessment of EU law
• The enforcement of EU law: the identification of the scope and the meaning of the EU law and its enforcement is a task of ECJ and of the national judges. This means that in the EU there is a multilevel jurisdictional protection:
  • The EU as a Community of law: the protection of the rule of law within the Union
  • The EU jurisdiction

The content of the EU law

The two pillars of the EU action:

• The internal market
• The area of Freedom, Security, and Justice

The "weak" pillars of the EU action:

• The Common Foreign Security Policy
• The Economic and Monetary Union

The future of the European Union

What is the EU?

In order to define the EU, it is possible to begin with a brief overview of the international subjects that are:

• States: are territorial entities with three main characteristics:
  • Territory
  • Population: living in the territory of the state
  • Government: that has to be independent and with a sovereign power over the population
  The statehood doesn’t need recognition from other states, because it is sufficient that a state owns these three fundamental elements. The EU cannot be defined as a state because:
  • Does not have a territory: that is composed of member states’ territories
  • Also, the element of the population leads to some doubts.
• Corporations: are private subjects that have the same personality as individuals, although recently some of them can exercise a larger sovereign power.
• Non-governmental organizations: are private entities with international legal personality, as Amnesty International or the Red Cross movement, established under the law of a given country in order to promote some specific activities or propose new sets of rules or standards.
• Individuals
• Insurgents: are entities that try to acquire independence from the state to which they are referring.
• National liberation movements: are entities which represent a population in order to reach self-determination in a situation where the government exercises an authority power.
• The Vatican state
• International organizations: that have some features that distinguish them from the other subjects:
  • They are secondary subjects
  • They are created by binding public multilateral international instruments: and not by soft law as declarations
  • They do not enjoy a complete and absolute legal personality but a limited one, in light of the mandate conferred by member states: so they can act only within the mandate that they received.

Finally, it has to be said that international organizations are not all equal. Indeed there are different models and types of IOs:

• Universal IOs: are entities, as UN, that have to create the largest cooperation possible among states. In theory, all the states may enter a universal organization, although they have to respect some political criteria.
• Regional IOs: admit only specific countries with particular features that deal with geographical criteria, as the Council of Europe and the African Union, or political criteria, as in the case of NATO and the EU.
• Political IOs: possess a more elaborated mandate and a larger spectrum of action that permits to intervene in several fields. The EU, for example, is a political organization because it has to establish cooperation between states.
• Technical IOs: can only intervene in certain domains that often require technical skills, as the WTO that is a technical organization in trade liberalization.
• Cooperation IOs: are established in order to create an ordinary cooperation among states to implement a specific policy, without an integration of the legal orders of the member states that remain autonomous from the legal order of the cooperation IOs. A classical example of cooperation IOs is the UN.
• Integration IOs: create an integration between the legal order of the member states in order to harmonize the legal system of the participating legal orders, as in the case of the EU that is the only integration IO existing. Indeed, even though there are other integration IOs, like the African Union, they take the EU as a model and they are not so effective in their action.

Given that, in a formal perspective, it is possible to affirm that the EU is an international organization because it possesses all these requirements and it is also possible to define it as a regional, political, and integration international organization. However, there are other elements that draw a distinction with the others international organizations:

• The nature of the decisions: the ordinary IOs are capable to adopt binding decisions only in very specific cases. Indeed they normally adopt means of soft law (as resolutions or declarations). For example, the UN adopts binding decisions only in cases of violation of peace or international security (art.49 of the Charter) or decisions regarding the financial contribution of member states. On the other hand, in the EU it is normal to adopt binding decisions.
• The way the decisions are taken: in the ordinary IOs the decisions are normally taken by unanimity, so that a single state can pose a veto blocking the decision in question. For example, in the UN, the Security Council can adopt a substantive decision on which the permanent members can pose a veto. Whereas in the EU, the rule is that decisions are taken by majority and, in some cases, by a qualified majority. However, there are decisions that still require unanimity in fields as fiscal policy or common foreign political policy.
• Jurisdiction: the ordinary IOs do not provide a sophisticated jurisdictional control. Indeed, even though they may establish tribunals and courts, these organs can only be in charge of solving disputes of organization or label disputes. They have administrative tribunals and they do not have jurisdictional control over the activities of the organization or of the member states. In the UN, indeed, the ICJ can only solve the disputes among states, giving not binding opinions. On the other hand, in the case of the EU, the ECJ has the power to challenge the validity of the decisions adopted and it is possible to bring a state before it in order to assess the breach of EU law.

The EU evolution

Every step of the history of the EU is distinguished by the adoption of an international treaty or an agreement between the member states.

Schuman Declaration (1955)

The first driving force concerning the strength of cooperation is a speech given in Paris by Mr. Schuman, the so-called Schuman Declaration, where the EU was recognized as a new international organization (where France and Germany were included) designed to:

• Transfer sovereign power from the contracting states to the organization
• Adopt binding decisions in the general interest in order to prevent political disputes among member states.

Paris Agreement (1956)

In 1956, in Paris was adopted the Paris Agreement that created the ECSC (European Community for Coal and Steel), with the idea to shape a shared market of coal and steel, that in the past had created many disputes. The treaty was signed in 1955, but it entered into force only in 1956 because the signature of a treaty does not necessarily imply the entrance into force. Indeed, in order to force respect for the content of a treaty, it is necessary the ratification that is governed by constitutional law of every single member state. Although in Italy it is the President that has to ratify treaties, in cases of EU treaties it is essential the Parliament authorization. Finally, according to the EU systems, the treaty will enter into force only if all member states ratified the treaty.

Rome Treaty and Euratom (1957-1958)

The model of these treaties is the same as the Schuman Declaration model, where it is established an independent subject that can operate in specific fields, in particular:

• EURATOM (=European Atomic Energy Commission): nuclear atom field
• EEC (=European Economic Community): that monitors a single market where free movement is permitted.

Merger Treaty (1965)

The Merger Treaty was adopted with the aim of merging the institutional framework of the single member states, so as to simplify the institutional framework composed of the EU Parliament and the EU Commission.

1975

It is a treaty adopted with the intent to reinforce the role of the EU Parliament and to establish the Court of Auditors that is in charge of assessing the budgetary administration by the institutions, so as to enhance the functioning of the institutional framework.

Single European Act (1986-1987)

It is an international treaty concluded by the member states (that were grown with respect to the original ones) in order to:

• Further the cooperation within the EEC: for example, it included the environmental protection policy among the areas of the EU competence
• Launch a new political process leading to the creation of a single EU foreign policy: as a sort of umbrella for all the member states. This fact explains the denomination of this treaty.

Maastricht Treaty (1992-1993)

Maastricht treaty was adopted by member states in order to create the EU, which was completely different from the one we know now. The EU had a complex construction that can be represented by the image of a Greek temple:

• A common basement: that depicts the common objectives and values of EU
• The roof: that is the single institutional framework
• Three pillars: where cooperation is implemented:
  • Community pillar: that incorporates the free communities (ECSC, EURATOM, EC). In EC (that before Maastricht was EEC), this treaty intervened by introducing the new political dimension that is the European monetary bank. The community pillar was characterised by the so-called community method. This expression makes reference to the peculiar features of the integration international organization:
    • Binding decisions
    • Legal acts: adopted by the majority
    • Jurisdictional power over both the member states and the EU.
  • Common Foreign Security policy: that represents the legacy of every single European act. With respect to the previous pillar, this one adopts a different method, the so-called intergovernmental method:
    • Rare binding decisions
    • Unanimity
    • No jurisdictional control.
  • Justice and home affairs domain: is the pillar that comprises fields such as civil judicial, police cooperation, free movement. This pillar is characterized by a specific method that is a compromise between the former two, indeed is an intermediate method:
    • Binding decisions
    • Majority
    • Quite limited jurisdiction control.

Amsterdam Treaty (1996-1997)

The Amsterdam Treaty introduced two major innovations:

• The possibility, in the first pillar and within the EU, to establish strengthened cooperation, because of the growth of the number of the member states
• The reduction of the third pillar in favour of the first one that was expanded: because the member states decided to move some policies from the third to the first, in particular: cooperation in civil justice, visa, asylum, migration and free movement.

Nice Treaty (2001-2003)

The Nice Treaty was a failure and wasn't so relevant, because it contains only some amendments in order to extend the number of member states. However, it is worth to mention the Proclamation of the Charter of Fundamental Rights of the EU, even though it was just a political proclamation. Indeed, this Charter will become legally binding only in 2009 with the Lisbon Treaty.

2002

In this year the ECSC, one of the free communities, disappeared due to the fact that the Treaty that established ECSC was valid only for 50 years after the entrance into force.

Lisbon Treaty (2007-2009)

Actually, before this treaty, there was an intermediate step that has to be mentioned that was the Constitutional Treaty in 2004. The idea was to launch, after the Nice Treaty, a Constitution in order to strengthen the constitutional dimension of the EU. This idea resulted in the adoption, in Rome, of the Constitutional Treaty ("A treaty establishing a Constitution for EU"). It was signed in Rome after a very long drafting process. Then the ratification process started but two countries, the Netherlands (with a compulsory referendum) and France (with a non-compulsory referendum), decided to block it. The negative result of the latter referendum was due to the nightmare of French people that was the invasion of Polish plumbers. The fear was that, after the entry into force of the Constitution, people from poor countries would move to France, stealing the job of nationals. After this failure, it was claimed that the real problem was due to the constitutional perspective of the idea of the Constitutional Treaty. Given that, the remedy was to preserve the technical solution of the Constitutional Treaty, eliminating all references to the constitutional dimension. This leads to the Lisbon Treaty that is quite similar to the former treaty. In this occasion only Ireland voted against, because of the family law. Indeed the EU has the chance to exercise an exclusive power in this field. Even though the referendum was negative, the member states looked forward to adopting a Protocol, which was addressed to Ireland, in order to deny an exclusive competence of the EU in family law. Thanks to the Protocol, the result of the next referendum was positive, so as to permit the entrance into force of the Lisbon Treaty in 2009. The major innovations of this treaty concern the aim to reshape the Maastricht model, simplifying the scenario:

• Elimination of the EC: that was set aside
• Euratom
• One major organization and one area of cooperation: even though there are distinctions that have to be evaluated. Indeed, Common Foreign Security Policy is still considered as a policy governed by the intergovernmental method:
  • Rare binding decisions
  • Unanimity
  • Limited jurisdiction of the EU Court of Justice.
  Whereas all the other political dimensions are covered by the community method.

The founding instruments of the European legal order that we have mentioned before, have been amended during time, simply modified the original ones, so as to create a stratification of the different texts. A clear example of the fact that the originals are set aside by the subsequents, is the actual text of the EU, as amended in 2007. This coexistence between historical legal texts and the new ones leads to some legal problems in terms of interpretation. In addition, as a consequence of this process, we have different agreements that interact among themselves. Given that complexity, the Lisbon Treaty tried to do a simplification of this landscape, by reducing the fundamental treaties:

• Before Lisbon indeed we have:
  • Two European communities treaties (Euratom and EU): as amended by Merger treaty, SEA, Maastricht treaty, Amsterdam treaty and Nice treaty
  • TEU as amended by Amsterdam and Nice Treaty.
• After Lisbon, the situation was different:
  • TFEU (=treaty of the functioning of European Union): that includes the content of the policy of EU and how this policy may be implemented by the EU institutions
  • TEU (=treaty of the European Union): that shapes the major features of EU as international organization.
  Despite this distinction, there are cases where constitutional provisions are contained in the TFEU.

Charter of fundamental rights of the EU: that is not a treaty, because it was proclaimed in Nice by the political institutions by the member states, so it is not binding itself. However, after Lisbon, it assumed the same force of the TFEU and TEU. That was possible thanks to the art.6 paragraph 1 of TEU that had conferred binding nature to the Charter. In conclusion, it has to be said that these three instruments:

• Must be considered together
• Are been amended: so sometimes there are elements of the former era of the legal order, creating consequent problems in terms of interpretation.

New era

Nowadays, there is a problematic scenario characterized by the relaunch of an intergovernmental method and by the increasing emergency situation that leads the EU to act outside the ordinary legal framework, causing a feasible collapse of the entire machine. This step is relevant not only from a political point of view but also from legal and institutional implications.

Emblematic with this respect is the recent EU Turkish statement that is a statement adopted in 2016 at the end of a summit between the EU Council and the Turk representatives. The statement published on the website of EU Parliament, contains obligations related to the migration. On one hand, EU obliged itself to pay and to facilitate the access, lifting the visa formality. On the other hand, the Turkey obliged itself to readmit irregular migrants that enter in the EU territory coming from Turkey. This statement that defines obligations concerning the management over the Balkan corridor, is very effective but is also quite problematic because, albeit EU can conclude treaties with the member states, in doing it, must follow a procedure that passes through Parliament.