#14641 - Principles Of Eu Law - GDL EU Law

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Historical Foundations

Underpinning themes:

• Conferred competence

• Political stability & dispute resolution

• Balance between supranational authority & intergovernmental sovereign control

Pre-Lisbon Pillar system:

1. European Communities: economic, social and environmental policies (comprised EC, ESCS & EURATOM

2. The Common Foreign and Security Policy (CFSP): foreign policy and military matters.

3. Police and Judicial Co-operation in Criminal Matters (PJCCM)

Conflicts of supremacy:

• EDC refusal by French Parliament to ratify – defence raises the most intimate question of national sovereignty

• Luxembourg Accords: political compromise about use of QMV “where very important national interests are at stake”

  • Charles de Gaulle’s intergovernmentalism

• Challenges to Maastricht:

  • UK: ex parte Rees‑Mogg [1993] JR of the European Communities (Amendment) Act 1993

  • Germany: Brunner v European Union Treaty [1994]

• TEU:

  • European Citizenship

  • Europe a la carte Denmark & UK

• Treaty establishing a Constitution for Europe:

  • Division of MS & Union competences for greater principled organisation

• Laeken Declaration on the Future of the EU 2001:

  • In the context of a successful EU with the Euro about to start

  • The ‘accidental constitution’ (Peter Norman) section titled ‘towards a constitution for European citizens’

  • Art 21 ambitions for a unified international presence

• Lisbon Treaty: ‘reform treaty’

  • Craig & de Burca: a constitution in all but name, because the word constitution is politically sensitive

  • Irish referendum (amendment to guarantee national sovereignty on abortion & taxation); Czech Republic legal challenge; German legal challenge (compatible but requiring German law on parliamentary rights of participation)

  • Designed to provide checks and balances through the institutional infrastructure

    • EP given more powers in international agreements Art 218 TFEU express consent

Institutions

The Commission >< The Council >< Parliament

| | |

EU >< States >< Citizens

The Commission = ‘guardian of the treatiess’ (Art 17 TEU 1 national of each MS)

• Legislative & executive

• Commissioners are completely independent of their MS

• Commission may instigate proceedings against MS

European Council (Art 15 TEU & Arts 235-6 TFEU) = heads of state

• “general political directions and priorities thereof. It shall not exercise legislative functions”

• President of the European Council elected by QMV

Council of Ministers (Art 16 TEU & Arts 237-43 TFEU) = 1 representative of each MS drawn from their government

• Legislative & budgetary functions -> casts the MS’s vote

• Alongside the EP, the Council makes the final decision on most legislation under the ordinary legislative procedure

European Parliament (Art 14 TEU) = MEPs directly elected

• Began as Common Assembly (advisory role)

• Expanded jurisdiction – directly elected since 1979

• Some debate about the fact that MEPs are not proportionate to population

  • Germany has far less MEPs per head than Luxembourg

• Art 263(1) TFEU actions for annulment

• Art 234 TFEU censure the Commission

High Rep. of the Union for Foreign Affairs & Security Policy: unified external voice of the EU (member of the Commission & Council)

• “horizontal rather than vertical – heterarchichal rather than hierarchical” Neil Walker – constitutional pluralism

Voting

QMV: Art 16(3) QMV is the norm except where it is provided for otherwise in the treaties (55% member of the Council comprising at least 15 of them representing MS >65% population)

Simple majority: rare

Unanimity: taxation, social security, foreign policy & common security policy

Art 294 TFEU ordinary legislative procedure:

• EP & the Council as co-legislators, with right of veto

  • HOWEVER 3^rd GSP Case on the special procedure which only had to consult the EP – though Council must endeavour to obtain opinion of the EP

Policies & Competence

Art 3(6) TEU: “The Union shall pursue its objectives by appropriate means commensurate with the competences which are conferred upon it in the Treaties.”

Art 4 TEU:

• Competences not with EU remain with MS

• EU respect MS’s national identities

• Art 4(3) MS take any appropriate measure…to ensure fulfilment of the obligations arising out of the Treaties

Art 5 TEU:

Principle of Conferral = there must be an article conferring power upon the Union before it can impose anything. Competences that are not conferred remain, automatically, with MS. This is why MS are ‘masters of the treaties’

Principle of Subsidiarity = even if the Union has power to act, it will not act if it can be better achieved by the MS. Thus one must ask the question, who will do this most efficiently? EU or MS?

Principle of Proportionality = the Union should never act in excess into order to achieve an objective

• Working Times Directive: UK’s application for annulment rejected on grounds of proportionality “the minimum requirements laid down by the Council may go beyond the lowest level of protection established by the various Member States”

• Germany v EP and Council (Tobacco Advetising Judgment) recognition of limits;

  • AG: a stricter standard be used in relation to fundamental rights than is used in relation to assessing the proportionality of Community acts in other contexts.

Internal policies:

• Core policies

  • Common internal market (Art 26 TFEU)

  • Competition law (Arts 101-9 TFEU)

  • Borders; criminalisation of racism; access to justice Arts 67-89 TFEU

    • Gradual increase of power eg Art 83 TFEU measures on judicial cooperation in criminal matters by QMV

    • Protocol 21: UK & Ireland opt-out

• Peripheral policies:

  • Worker rights; equality law (Arts 151-161 TFEU)

  • Environmental policy (Arts 191-3 TFEU)

• Common European Policies:

  • Agriculture; fisheries; transport (Arts 38-44 TFEU)

• Coordination of MS policies :

  • Economy as common concern (Art 131 TFEU)

  • Employment as common concern (Art 148 TFEU)

  • Compliment MS social protection through directives (Art 153 TFEU)

• Supporting, coordinating or supplementing MS

  • Competence at Art 6 TFEU

Reform:

• Lisbon European Council Presidency Conclusions March 2000: “new strategic goal: to become the most competitive and dynamic knowledge-based economy in the world…applying a new open method of coordination”

  • Guidelines & timetables

  • Comparative benchmarks with the best international economies

  • Translating EU guidelines -> national policies (targets)

  • Monitoring, evaluation and peer review “as mutual learning processes”

External policies:

• Common foreign & security policy (Arts 21-46 TEU)

  • Art 24: unanimity between the Council and the European Council; CoJ has no jurisdiction (except Art 275 legality and Art 40 compliance)

This should limit the EU’s competence, HOWEVER Art 352 TFEU is often used in lieu of conferred competence where the EU feels it must act

Art 352 TFEU = if it is necessary to attain one of the objectives of the treaties the Council acting unanimously & with consent from EP may adopt appropriate measures

• Opinion 2/94 Accession “On any view, [ex] Art [308] cannot be used as a basis for the adoption of provisions whose effect would, in substance, be to amend the Treaty without following the procedure which it provides for that purpose.”

Art 114 TFEU = harmonisation of the internal market

• Germany v European Parliament and Council: this is not a general power to adopt measures as that would go against Art 5 limited competence

International Relations

Low politics: common commercial...