#15636 - Competence - European Law

CONFERRAL, SUBSIDIARITY AND PROPORTIONALITY

FOUNDATIONS OF THE EU

Founded as a response to WW2 —strong desire for lasting peace, secured through greater polictical / economic co-operation.

EEC established by the Treaty of Rome 1958 (TFEU) which expanded on the existing Steel and Coal Treaty 1951 and established a common market founded on four fundamental freedoms —free movement of goods, services, capital, and persons

EU established by the Treaty on the European Union 1992 —it is a sui generis body —not purely international, but does not establish a federal state of Europe. TEU did the following:

• Created a three-pillar EU: (i) European Communities; Common Foreign and Security Policy; (iii) Cooperation on Justice and Home Affairs.

  • New structure allowed for cooperation within new policy areas outside the mechanisms of the Community Treaties (second and third pillars have a greater emphasis on national autonomy, with most decisions made by the Council, comprising of Member States).

  • First pillar is best described as ‘supranational’ second and third as ‘intergovernmental’

• EU Parliament’s powers enhanced: particularly though the introduction of the co-decision procedure allowing Parliament to block proposed legislation in certain areas —Qualified Majority Voting was extended

• Some criticism that the spilt between the first pillar and the rest created a fragmented structure.

Treaty of Amsterdam 1997 and Treaty of Nice 2001: made incremental chances, reorganising the structure of the treaties in light of the enlargement of the EU (ten new MS added in 2004) —e.g. Nice made changes to the co-decision procedure and the composition of the intuitions.

Failed constitutional treaty: this would have replaced the founding Treaties, setting out the institutional / substantive provisions of the EU in a single document. Was abandoned in 2007 in the face of widespread criticism and opposition (including rejection in 2005 Dutch and French referenda).

Treaty of Lisbon 2007: Following abandonment of the constitutional treaty, the Treaty of Lisbon was signed —it did not replace, but amended, the TFEU and the TEU, although it did incorporate many provisions of the suggested constitutional treaty. Only came into force in 2009, following opposition in Irish referenda in 2008 and 2009.

• Institutional changes: European Council elevated to a full Union institution; membership of the European Parliament limited at a maximum of 750.

• Streamlined law-making:

  • Adjustments to QMV, preventing a small number of large MS from vetoing legislation. QMV also extended (used in more areas) to become standard system —although unanimity is still required for tax, foreign policy, defence, and social security.

  • European Council acquired new and controversial powers —by unanimous vote, it can propose amendments to certain parts of the EU Treaties; previously could only be achieved through Treaty amendment. More controversially, it can make amendments to allow QMV to operate in certain areas previously requiring unanimity.

• Legislative procedures: co-decision (now the ‘ordinary legislative proceedure’) involving the participation of the European Commission, the Council, and the European Parliament, became the standard legislative procedure.

• External relations: EU acquired legal personality (previously held by the EC, but not EU) allowing it to conclude international agreements / join international organisations.

• Did it Enhance democracy? Extension of co-decision has made a tangible increase in the Parliament’s role in law-making. National Parliaments also given a formal role in law making via submitting opinions on subsidiarity.

EU now has broader purposes than the Common Market

Arts 2 and 3 TEU show how far the EU has come from its economic foundations:

• Art 2: EU is founded on “the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights”.

• Art 3 sets out the aims of the EU: the internal market is now as low as third on the list of aims, with freedom, justice and security for citizens coming above the internal market

INSTITUTIONS

Principle EU institutions are the European Council; the Council; the European Commission; the European Parliament; the CJEU; the European Central Bank; and the Court of Auditors.

European Council: (Art. 15 TEU; 235-6 TFEU): has a broad, non-legislative role, consulting on topical political issues and defining the general policy direction for the EU —comprises the Heads of State / government of MS.

Council: (Art. 16 TEU; 237-243 TFEU): Comprises ministers of MS (membership changes according to matter under discussion —e.g. agricultural issue will lead to participation from agricultural ministers).

• It has the final power of decision on the adoption of secondary legislation, exercised jointly with the European Parliament.

• Voting is by unanimity, simple majority, or qualified majority, depending on the Treaty requirement for the particular matter —unanimity can make legislative progress difficult, so majority voting has now been extended to more areas of EU activity (by treaty amendments in Lisbon / Nice). QMV is a system of weighted votes (from 29 for Germany, France, and UK to 3 for Malta). Loosely proportionate to population, but very political.

European Commission (Art. 17 TEU; 244-250): One commissioner for each MS, who must be completely independent, neither seeking nor taking instructions from their governments, and MS must not seek to influence them.

• The Commission acts as a 'guardian' to EU Law, bringing actions against Member States or individuals in breach.

• It formulates policy, proposes legislation, partakes in discussions on the framing of legislation by the Council and Parliament, and performs an executive role, implementing the Council's policy decisions, under delegated powers.

European Parliament (Articles 14 TEU; 223-234 TFEU): Under Lisbon Treaty, by 2014 the number of MEPs will be fixed at a maximum of 750, plus President.

• Originally, participation in the legislative process was purely advisory and consultative – increased, so that now, Parliament's approval must be obtained before legislation can be adopted.

• Exerts control over the executive through its right to approve the Commission and to dismiss the entire Commission.

Court of Justice of the European Union (Articles 19 TEU; 251-257 TFEU): Role is to ensure that, in the interpretation and application of the Treaties, the law is observed.

• The Court is not bound by its own decisions, but nevertheless seeks to maintain consistency in its judgments.

• Has used jurisdiction to develop the EU, through ground-breaking decisions, such as establishing the principles of direct effect and state liability, upholding the fundamental principles of the free market and furthering the rights of individuals.

LAW-MAKING

Legal base: Legal base of a particular legislative measure in the Treaty article conferring the power to legislate in the relevant policy area.

Legislative procedures:

• Ordinary legislative procedure (Articles 289, 294 TFEU): Commission is exclusively responsible for proposing legislative initiatives, then the Council and Parliament decide whether to accept them.

  • Entails two readings of proposed legislation: first reading, EP delivers its opinion to the Council, with suggested amendments, if approved, the measure may be adopted; second reading, EP considers the Council’s position (including any proposed amendments).

• Special legislative procedure (Article 298(2) TFEU): Applies in respect of specified areas provided for by the Treaties (e.g. taxation).

QMV in the Council under the ordinary legislative procedure, means that no State has a veto to prevent legislation from passing. States must enter coalitions to pass / block legislation, so EU law-making involves negotiation between States.

Treaty amendments must be agreed unanimously by every Member State, and because there are now 28 Member States, it is therefore unlikely that any new Treaty amendments will be agreed in the near future.

Types of EU Law: The primary sources of EU law are the Treaties and Protocols, the Charter, and the general principles of EU law found in the case law of the ECJ. Secondary sources of EU law are:

• Regulations: directly binding and applicable in all MS, effective immediately without implementing legislation.

• Directives: the objective set out in the Directive must be achieved but MS can choose the method by which the objective is implemented, so giving MS discretion and autonomy.

• Decisions: addressed directly to a particular Member State(s) and binding on that State addressee, but Decisions can now be of a more general nature.

DEMOCRATIC DEFICIT IN THE EU

Criticimsmay not make much sense – cannot assess how 'democratic' the EU is, as we have no criteria to measure it against (i.e. it is a unique organisation) —e.g. the UN does not have such concerns because it is merely an International Body; however, the EU’s competence to legislate on domestic issues of MS means it is a different kind of organisation.

The problem:

• Lack of electoral accountability: It is argued that there is a “disjunction between power and electoral responsibility” in the EU — legislative functions are split between the Council, EP and Commission; voters have only a limited way to signal a desire for change in legislative agenda (MEPs are elected, and members of the Council are ministers of MS).

• Executive dominance: The EU is dominated by the executive (the Council and Commission) so transfer of competence to the EU enhances executive power at...