European Public Law

European public law

Law is a set of legal norms, which are a particular kind of norms whose aim is to give an organization to the society they are applied to. Public law is the set of legal norms which regulate public relationships; it includes both the functioning of the public institutions and the relationships between institutions and society. Private law is the set of legal norms which regulate private relationships such as those between companies and individuals. Both private and public law are produced by the state but with different actors and factors. Laws nowadays are produced not only by states but also from other actors like international organizations. The European law refers to a set of legal norms produced by the European Union institutions.

Historical background

The Second World War brought new principles that affected the creation of constitutions throughout Europe. The years after the war were years of great changes and revolutions, which brought a new idea of the state. These factors led to the creation of contemporary or constitutional states and the European Union. A contemporary state is characterized by the presence of a constitution; it is also a pluralistic, social, democratic, decentralized, and open state. An open state is based on cooperation with other countries and openness to international law. This type of state is guaranteed in Italy by articles 10 and 11 of the constitution, which state the internationalist and pacifist principles.

Sovereignty is one of the fundamental elements of the state, together with people and territory. It's the full right or power of a governing entity to govern itself internally without any interference from external sources (external point of view). This classic definition of sovereignty changed after the Second World War, in particular, with the birth of interstate institutions (such as regions) and an attempt to pursue peace and cooperation between states.

Alongside this moral concern about sovereignty, there is a more concrete form of these changes: globalization. Globalization implies stronger relationships between states, individuals, and organizations. It was born as economic globalization, increasing connections between the factors of production, but as a consequence, public institutions also became more global institutions. In fact, the open state implies a change in sovereignty and two major factors for this change are the need for peace and cooperation and the need for a global economy.

International organizations

These are entities established by formal agreements between states called international treaties. There are two types of international organizations:

• Organizations that pursue peace and cooperation
• Organizations that govern economic globalization

We can also distinguish between global and regional organizations, in particular, every state can participate in a global organization, while regional organizations include states belonging to a common geographical area.

In the European context, there are two major organizations: the Council of Europe and the European Union. The CoE is a more geographically extended organization (47 states), which aims to ensure peace and cooperation. It was established in 1949 with the Treaty of London, signed by 10 states, who in 1950 also signed the European Convention of Human Rights (ECHR). This organization's main bodies are the Parliamentary Assembly, Committee of Ministers, Secretary General, and the European Court of Human Rights. It was established in London because the UK promoted a different institution from the European Union. The ECHR established fundamental rights and freedom and had the task of protecting them.

The European Union is the result of a very long process made of treaties:

• 1951 European Coal and Steel Community (ECSC), established by the Treaty of Paris signed by France, Italy, Germany, Belgium, Netherlands, and Luxembourg. The trade and production of these two raw materials was one of the causes of the Second World War, and this treaty had the main goal of maintaining cooperation and peace.
• 1957 European Economic Community (EEC) and European Atomic Energy Community (EURATOM), both established by the Treaty of Rome and signed by the same states as the ECSC. These two organizations tried to create common economic rules and markets, and common rules about atomic energy.
• 1965 Merger Treaty created a new common institution that reunited ECSC, EEC, and EURATOM, called the Commission of the European Communities.
• 1985 Schengen Agreement introduced the free movement of people through Europe.
• 1987 Single European Act was the first major revision of the content of the European community. It scheduled as its main objective the creation of a single market (effectively established in 1992) as a space without internal borders and within which to ensure the movement of goods, services, and capital.
• 1992 Treaty of Maastricht was a turning point for the European integration process. It brought institutional and political reforms and introduced the concept of the European Union, with the Treaty of European Union (TEU), which was not an international organization, in fact, had no regulation or institutions. It also introduced the three-pillar structure:
  • The European Communities pillar handled economic, social, and environmental policies. It comprised the European Community (EC), the European Coal and Steel Community (ECSC, until its expiry in 2002), and the European Atomic Energy Community (EURATOM).
  • The Common Foreign and Security Policy (CFSP) pillar took care of foreign policy and military matters.
  • Police and Judicial Co-operation in Criminal Matters (PJCCM) brought together cooperation in the fight against crime. This pillar was originally named Justice and Home Affairs (JHA).
• 1999 European Charter of Fundamental Rights represented the end of a transition concerning the European integration process.
• 2004 failure of the approval of the Constitution for Europe, not approved with a referendum by France and Netherlands.
• 2007 Treaty of Lisbon was an attempt to apply changes similar to the principles contained in the Constitution of Europe. In particular, this treaty established the Treaty of European Union (TEU), that detailed general principles, and the Treaty of Functioning of European Union (TFEU), which replaced the TEC and established a new structure and nature of the European Union, which became finally an institution with legal power like the European Community used to be. The TEU and TFEU are considered as the Funding Treaties and are the primary source of law in Europe, together with the ECHR.

Another way to look at the evolution of the European Union is based on the evolution of the nature of the EU according to decisions made by the European Court of Justice. In fact, the EU is the only international organization whose law is characterized by legal supremacy and direct effects, and for this reason, it is known also as a Supranational Organization, which is a hybrid between a Federal state and an international organization.

The last way to analyze the EU's historical evolutions is based on the geographical revolution of the states that joined it.

Accession and withdrawal

How to enter and exit the EU

The accession process is based on article 49 of the TEU that states three conditions:

• Be a state within geographical Europe. Geographical Europe is different from the political one, which includes states like Russia and Turkey, which are part of the Council of Europe.
• To respect and commit to the European values stated in article 2, like the respect for human rights and democracy.
• To respect the Copenhagen criteria, which are (1) a functioning market economy, (2) the ability to take and implement the obligations of membership, and (3) stable institutions that guarantee European values.

The actual procedure can begin with a formal application to the Council of Europe, which, following a favorable opinion, can grant the candidate status to the state, officially considering it a candidate to become part of the EU. Then, negotiations start between the state and the EU itself, where they negotiate the measures that the state needs to take to join the EU. In particular, the candidate dossier, made of 35 chapters, implies certain levels of coherence with European regulation. At the same time, the screening process takes place, during which the EU verifies the level of coherence between the state's and EU's regulation. Then the accession itself is approved by the Council of Europe and signed by Parliament and every member state. Recently, the accession process has interested the Balkan states and Turkey.

The withdrawal process is regulated by article 50, and it is a quite easy procedure. In fact, any state can decide to take this decision according to its domestic rules. After the decision has been made, the state must notify it to the European Council. Then the state may ratify some treaties to regulate future relationships with the EU, and they have 2 years to reach an agreement. If after the withdrawal the state wants to rejoin the EU, it has to go through the procedure explained in article 49, like all other states. This quite easy procedure is actually more difficult because of the political and economic consequences of the withdrawal.

European competences

A competence is a material field in which an institution is entitled to act; for example, the EU has competence in the monetary field and can act in it. In the TFUE, we find some articles dedicated to these competences in different fields. The need for formal establishment of competencies is a consequence of the fact that in contemporary society, more than one legal order exists, which may lead to overlapping.

For the traditional sovereignty definition, the state has absolute competence over all fields regarding the state itself. With the creation of contemporary states, a pluralistic structure of competences was born, leading to a limitation of state sovereignty. As a consequence, relationships between legal orders have to be regulated. The state is still the only legal order that can be defined as a sovereign organization, and it is the states that decide if they want to limit their sovereignty. In general, states continue to have general competences except for those fields which are regulated from other bodies. The state can decide to devolve part of their competences to subnational bodies through the constitution, as Italy did in article 117.

Considering state and international organizations, a common framework for all states is established with treaties, which are international acts made by the states themselves, which remain, in fact, the only sovereign legal order.

We can find a general principle of the distribution of competences in article 5 of the TEU, which states that:

• The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiary and proportionality.
• Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the member states in the treaties to attain the objectives set out therein. Competences not conferred upon the Union in the treaties remain with the member states.

This principle has some implications:

• Every European act must identify its legal basis; each secondary act must identify its legal basis in the primary law of the EU (ECHR, TFUE, TUE).
• Alongside with article 5, we can find in the treaty other provisions that define competences. TFUE does not include a unique list of competences but has a list of the fields in which you can find the competences conferred to the EU.

There are some exceptions to the principle of conferral:

1. The Teleological Interpretation of European competences. It represents an evolution of the way of interpretation of the principle of conferral, which originally was applied in a very strict way according to the originalistic interpretation based on the text of the treaties and the explicit words. The teleological interpretation says that the historical intentions of the member states are not important, but the objectives pursued by them when they wrote the treaties are. As a consequence, even if a competence isn't explicitly conferred to the EU, but is necessary to accomplish those objectives, the EU has competences in that field.
2. The General Competence. The treaty includes provisions that give the EU some general competences used to enlarge European legislation. The Harmonization clause, article 114 of the TFUE, states that the EU is entitled to adopt measures for an approximation of national law which have as their object the establishment and functioning of the internal market. It doesn't specify the competences, but the objectives, with a very wide interpretation. This regulation has allowed another enlargement of EU's competences. In fact, this article lets the EU act to approximate existing national laws, but in some cases, the Court of Justice tried to pose some limits to these general competences. In particular, in the case of Germany vs European Parliament and Council, the Court said that art. 114 can't be used in every issue regarding the internal market but just in some particular conditions, which are: (1) a European law must harmonize national laws, (2) a simple disparity among national legislation is not enough to trigger the Union general competences, and (3) union legislation must contribute to the elimination of obstacles.
3. The Flexibility clause, article 352 TFUE, states that: (1) if action by the Union should prove necessary, within the framework of the policies defined in the Treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament, shall adopt the appropriate measures. Where the measures in question are adopted by the Council in accordance with a special legislative procedure, it shall also act unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament. (2) Using the procedure for monitoring the subsidiarity principle referred to in Article 5 of the Treaty on European Union, the Commission shall draw national Parliaments' attention to proposals based on this Article. (3) Measures based on this Article shall not entail harmonization of Member States' laws or regulations in cases where the Treaties exclude such harmonization. (4) This Article cannot serve as a basis for attaining objectives pertaining to the common foreign and security policy and any acts adopted pursuant to this Article shall respect the limits set out in Article 40, second paragraph, of the Treaty on European Union. This article led to a more structured and general enlargement of the EU competences and stated the need for a special procedure to legislate, which otherwise can't be used in every case.
4. The Implied Power Theory, developed by the Court of Justice, states that the Union has competences for the adoption of certain measures, even in the absence of an express allocation of competence, if there is a need to enjoy another competence expressed by the treaty.

Categories of competences: Article 2 of the TFUE distinguishes the various categories of competences and it lists the areas included in each category. Before the Maastricht Treaty, the founding treaties talked about European competences without identifying any category, which caused confusion. There are four categories:

1. Exclusive competences, articles 2.1 and 3, are competences which only the EU may legislate about, even if states can legislate only in two cases: (1) if authorized by the EU, and (2) to implement European acts. Article 3 lists five areas of exclusive competences: (1) Customs union, (2) the establishing of the competition rules necessary for the functioning of the internal market, (3) monetary policy for the member states whose currency is the euro, (4) the conservation of marine biological resources under the common fisheries policy, (5) common commercial policy.
2. Shared competences, articles 2.2 and 4, are the ordinary competences of the EU. Both the Union and the member states may legislate and adopt legally binding acts upon these competences, but for the principle of the prevalence of Union intervention, the member states retain full powers of action as long as the inactivity of the Union lasts.
3. Coordinating competences, articles 2.3 and 5, in this case, the Union’s power of action is limited to the coordination of the actions of the member states, in particular, the Union can adopt guidelines and initiatives to ensure coordination. These competences’ areas are economy, employment, and social policy.
4. Complementary competences, articles 2.5 and 6, are actions to support, supplement, and coordinate the action of the member states. A union’s action does not preclude the exercise of member states’ power of action. These competences’ areas are the protection and improvement of human health, industry, culture, tourism, education, sport, youth, etc.

Principles for the exercise of the competences: Article 5.1 of TEU states that the use of Union competences is governed by the principles of subsidiary and proportionality.

• Under the principle of subsidiary, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far, the objectives of the proposed action cannot be sufficiently achieved by the member states.
• Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the treaties. Can be applied in all areas falling within the Union competences, even exclusive, and regulate the procedures for exercising the union’s powers of action.

European Union institutions

Form of government

It’s the set of forces concerning the distribution of powers among the branches of government or the relationships between con