European Union Law

Part 11. Europe and the EU

Main concepts of Europe

There are 3 main concepts of Europe:

• Territorial concept, it is considered as a continent (historical-geographic area).
• Council of Europe (CoE), is an international organization. It is based in Strasburg, France. It’s composed of 47 members. Its aim is to protect human rights, democracy, and the rule of law, keeping peace towards its member states. It was founded in 1949 as a regional intergovernmental organization. The best-known body of the Council of Europe is the European Court of Human Rights, which enforces the European Convention on Human Rights.
  • Its two statutory bodies are:
  • Committee of Ministers, comprising the foreign ministers of each member state
  • Parliamentary Assembly composed of members of the national parliaments of each member state

  The Commissioner for Human Rights is an independent institution. The Secretary General heads the secretariat of the organization.

• European Union is composed of Members of the European Parliament (MEPs) that are directly elected by EU citizens to represent their interests. The official seat of the European Parliament is in Strasbourg (France). The main meetings of the whole Parliament, known as ‘plenary sessions’, take place in Strasbourg 12 times per year. Additional plenary sessions are held in Brussels. It’s composed of 28 members. The term “Union” should indicate a legal system to face contemporary problems. The attribute “European” is linked to the common cultural heritage and background.

EU policies aim to ensure the free movement of people, goods, services, and capitals in the internal market, enact legislation in justice and home affairs, and maintain common policies. EU is a political and economic union. The EU has developed an internal single market through a standardized system of laws that could be applied in all Member States.

EU law and decision-making

The EU works through a hybrid system of supranational and intergovernmental decision-making processes. In fact, it was born as international law, then became a supranational law (a mix of international and constitutional law) for two factors:

• Broad areas of sectors
• Direct effect and primacy

DIRECT EFFECT: EU individuals may invoke EU Court directly.

PRIMACY: EU law prevails over national constitutions.

EU law dimension:

• Substantive dimension: regulations of the covered areas
• Institutional dimension: functioning of EU institutions, their relation internal and external, and bureaucratic aspects.

European crisis

• Migration: there is a lack of solidarity
• Economic and financial crisis: austerity policy
• Terrorism

Theories on integration

The EU is based on different theories:

• Liberalism: “more market more freedom”
• Functionalism and Neo-Functionalism: “more market, more prosperity in different sectors”
• Ordoliberalism: “more market, more prosperity with a social dimension”
• Neo-Federalism: it is a utopian project than the others
• Intergovernmentalism: Member States are stronger than EU
• Supranationalism: EU is stronger than Member States

The origins of integration and the ECSC

The European project arises after the Second World War. At first by Spinelli and Churchill. There was the concrete risk that Germany could be a dominating entity becoming the most powerful country on the continent. So states decided to come together and establish a common order where nobody could prevail over the others. At the time, the most problematic situation was the relation between France and Germany. The tensions were caused by the French administration of two regions of the Federal Republic of Germany in itself: Ruhr and Saar. Here coal and steel were abundant.

The Schuman Declaration laid forward by Schuman in 1950, inspired by Monnet, was a proposal to place Franco-German production of coal and steel under one common High Authority. The Schuman Declaration led to the ECSC Treaty (European Coal and Steel Community) signed in 1951, undertaken by six states: France, Germany, Italy, Belgium, Netherlands, and Luxembourg. It remained in force for 50 years and expired in 2002.

• Four institutions were introduced:
• High Authority: composed of nine appointees.
• Assembly: composed of 78 representatives and exercised supervisory powers over the executive High Authority.
• Council: composed of representatives of national governments.
• Court of Justice: composed of seven judges for six years. The Court was assisted by two Advocates General.

There was a proposal to create an institution responsible for the defense of the community, but the project failed because of the French rejection: EDC (European Defense Community).

EEC and Euratom Treaties

The Messina Conference in 1955 gathered the six members of ECSC and provided for the creation of the so-called Spaak Committee. In 1957, with the Treaty of Rome, EEC (European Economic Community) and EURATOM (European Atomic Energy Community) treaties were concluded. The aim was ensuring peace and stability through a common market, pulling down transnational duties, and similar boundaries to guarantee welfare and prosperity.

Common market results from a system based on a free movement of production’s factors (CUSTOM UNION):

• Free trade of goods.
• New concept of work.
• Free trade of services.
• Free trade of capitals.

This is not international law, because of the broadness of areas covered by European Union law, direct effect, and primacy. In 1957, the Member States created:

• Council of Ministers: composed by ministers of Member States
• Commission: It represents the interest of the community.

In 1951 the Member States decided also to put in common with the institutional structure of EEC and Euratom: Assembly, Court of Justice. So we have a general institutional structure that counts on three different communities, including six institutions:

• Council of Ministers (Euratom, EEC);
• Commission (Euratom; EEC);
• Assembly (ECSC in common with EEC and Euratom);
• Court of Justice (ECSC in common with EEC and Euratom);
• High Authority (ECSC);
• Council (ECSC).

In 1965 the Member States decided to put in common all the institutions, so nowadays we have only four of them:

• Council: composed by ministers of Member States. It had legislative competence and power of vote.
• European Commission: represents the European community. Power of initiative, power of control, and power of negotiation.
• Parliament: represents interests of people; power of supervision and consultation.
• Court of Justice: judicial powers.

De Gaulle was indeed supporting an intergovernmental perspective while Hallstein believed in a more supranationalist approach. In 1965 there was the crisis and with the Luxembourg Accord, was provided for the necessity of unanimity when important national interests are actually touched.

Originality of EU law

Case Van Gend en Loos (1963): A company wanted to import into the Dutch market a certain product, manufactured in Germany, and there was a limitation imposed by national legislation about customs duties. There was a discrimination problem concerning the fact according to which the normative principle was actually including only the companies that were willing to import foreign products while national producers did not have to pay those kinds of taxes.

• The European Court of Justice → direct effect: EU individuals may invoke EU Court directly.

Case Costa vs Enel (1964): Costa was an Italian citizen, owner of Enel shares, who complained the nationalization of the firm before national Court against his country. The process made by the State through internal legislation was restricting the market, violating European law principles. The aim of Costa was retaining shares. The European Court of justice → EU law prevails over national → primacy: constitutions. The Court recognized that there is direct effect and, consequently, Costa had the possibility to invoke European Union law. European Union law prevails over the national legal order and national authorities are bound to legal principles of the community.

Clarifications:

• Supranational legal order: the treaties created a customs union and by doing that it promotes the free circulation of sectors of production, CUSTOM UNION DIMENSION:
• Internal: MS cannot impose customs on the circulation of goods;
• External: relationship between EU and other States, which are external, borders between EU and third countries.

Enlargements in EEC

In 1973: UK, Ireland, Denmark; In 1981: Greece; In 1986: Spain and Portugal.

Single European Act

Under the Fointanbleu European Council summit in 1984, two committees were instituted: Adonnino Committee (focused on European identity enforcement) and Dooge Committee (related to political reforms). In 1985 in Milan, there was an intergovernmental conference that led to the Single European Act. They intended to upgrade the EEC treaty structure through the elaboration of a broad and horizontal scheme of changes both substantive and institutional. Delors was entrusted to formulate the core of this modifying process: the White Paper document. The States decided to introduce relevant innovations unanimously.

Institutional changes:

• Parliament: more powers and a new legislative procedure (COOPERATION), a veto power, over the accession of new Member States, and the possibility to conclude a variety of agreements.
• European Council: it obtains formal recognition and, so, more powers.
• Court of First Instance (CFI): it was created to support European Court of Justice.
• Comitology: a number of committees that help European Commission to prepare legislative draft proposals, through power of initiative.

Substantive changes: two articles are introduced by the Single European Act

• Art.26 TFEU: it says that an internal market is characterized by free movement of factors of production (goods, services, capitals, and workers).
• Art.114 TFEU: Gives the power to European institutions to adopt “harmonization acts” and other legislative measures.

Maastricht Treaty

Delors chaired a committee on Economic and Monetary Union in 1989, it consisted of a three-stage plan for reaching it. The European Council held 2 Intergovernmental Conferences (IGC):

• The conference on economic integration;
• The conference on monetary integration.