#17725 - European Integration, Law Making Institutions, And Legal And Constituional Limits On European Law Making Notes - European Law

European Integration, Law-Making Institutions and Legal and Constitutional Limits on European Law-Making Notes

What is European integration and why is it important?

European integration refers to Member States integrating more in to the EU institutional model, ultimately losing national decision-making power at a national level in favour of shared decision-making, shared laws and shared political and legal systems.

• This in turn has consequences for questions relating to the nature of the EU: does it merely manage the interdependence of Member States, or does it function as though it were itself a state.

The extent of integration changes over time as the Treaties are amended, this can be seen by looking at a timeline of EU integration:

Post-World War 1

The post WW1 approach to European integration was characterised by functionalism.

• Functionalism refers to the idea that societies depend upon one another and thus there should be integration on all matters

  • Issues arise with this idea due to cultural differences

• 1919: Treaty of Versailles

  • This sought to eco nomically punish Germany for its actions in WW1, and Germany ultimately dropped in to an economic depression, causing a rise in political extremism

• 1920: League of Nations

  • Post WW1, the League of Nations was founded in an attempt to curb further instances of political extremism, through discussing big concepts such as peace

    • This was an example of functionalism – it tried to tie together the relevant states by getting them to agree on the big and important issues

      • This ultimately failed, because getting a large number of diverse cultures to agree on fundamental ideas such as peace is not going to be successful

Post- World War 2

After the obvious failures of the post-WW1 functionalist approach, European integration became premised on neofunctionalism.

• Neofunctionalism advocates for co-operation on the easy issues, which ultimately leads to a spill-over on the difficult issues

  • Craig (2011) distinguishes between two forms of spill-over:

    • Functional spill-over – this occurs based on the interconnectedness of the economy: integration on one sphere will create pressure for integration in other areas

    • Political spill-over – this occurs where political pressure builds up in favour of further integration within the states which are involved

      • This takes place as interest groups realise where decision-making power is on certain issues, and thus focus their lobbying there on other issues.

• 1950: European Convention on Human Rights

• 1950s: Eurovision

  • People vent their anger in a song context and then they don’t do more dangerous things

    • This is neofunctionalism at work – engage in co-operation on harmless things (a song contest) and this will lead to co-operation on more dangerous things

• 1952: Treaty of Paris

  • This created the European Coal and Steel Community

• 1958: Treaty of Rome

  • This created the European Economic Community (EEC)

    • It was composed of the 6 original Member States as a response to the catastrophe of WW2

      • It has neofunctionalist groundings to the extent that economic integration was a means to a greater ends – it would avoid conflict and political instability

        • BUT: whilst prima facie it was about economic integration, it was always about more

          • The first line of the preamble to the Treaty speaks of an “ever closer Europe” and further speaks of the “peoples” (not people) of Europe, recognising the cultural differences between Member States

• 1987: Single European Act

  • This was the first formal revision of the Treaties

  • Introduced qualified majority voting

    • Member States could thus have laws imposed on them which they did not consent to

      • This meant that legitimacy no longer came from consent, it had to come from the principle of conferral.

  • It was primarily concerned with the completion of the internal market by the end of 1992

    • The primary goal was now to drive the process of economic integration deeper through the creation of a single market

• 1992: Maastricht Treaty

  • This created the Treaty on the European Union, which was concerned with the creating of an economic and monetary union

    • Conditions on economic union were inserted into all other treaties

  • It saw the expansion of EU competence into asylum, immigration, criminal justice and civil justice

    • This represents patterns of interdependence which are characteristic of the modern EU

  • Conferral was introduced – the EU shall only act within the power conferred on it

    • NOTE: all the negotiations at this Treaty was about subsidiarity, and conferral was an afterthought

• 1999: Amsterdam Treaty

• 2003: Nice Treaty

  • This was massively significant as it sought to establish a constitution

    • Whilst the changes were not particularly far reaching, the very language of introducing a constitution was significant

      • The desire here was to shift the focus of the EU to constitutional design and away from international institution

    • However, both the Dutch and French voted no in referendums and the Treaty died

• 2009: Treaty of Lisbon

  • This created the Treaty of the European Union (TEU) and the Treaty on the Functioning of the European Union

    • This was something of a recovery mission in light of the failure of the Nice Treaty

      • It was similar but not the same as the constitution envisaged in the Nice Treaty.

What are the different European law-making institutions?

The key institutions involved in EU law making are:

1. The European Commission

2. The European Council

3. The European Parliament

4. The Court of Justice of the European Union

NOTE: there is no traditional separation of powers in the sense of dividing up the executive, judicial and legislative functions as Montesquieu envisaged them

• These institutions can perform a combination of the three functions

  • BUT: it is not accurate to say that there is no separation of powers – the extent and form of the separation is just different to a normal understanding

Davies (2006) has critiqued the CJEU’s hearing of competence cases on the grounds that there is a structural bias.

• Given that the CJEU is an EU institution which is instructed with tasks of the EU, there is a conflict of interest

  • It is faced with a conflict between: (a) constitutional imperative to be neutral between Member States and the EU, and (b) the law which gives shape and existence to their court and their jurisdiction, which is much more one-sided

    • BUT: how problematic is this in practice? Do any cases suggest this conflict as causing any problems? Is it problematic in a context where there is no traditional separation of powers?

What are the legal limits on European law-making?

The system of Union competences describes exactly which powers the EU possesses and the manner in which it should exercise them

Article 4(1) TEU

In accordance with Article 5, competences not conferred upon the Union in the Treaties remain with the Member States

Article 5 TEU

1. Limits of Union competences are governed by the principle of conferral. Use of Union competences is governed by principles of subsidiarity and proportionality.

2. Under the principle of conferral, the Union will only act within the limits of the competences conferred upon it by Member States in the Treaties to attain the objectives set out therein

It is fundamental to the EU that the EU institutions do only what the Treaties allow them to do and nothing more – the competence of the EU is limited to that which is conferred upon it by the Treaties and thus ratified by the Member States.

• It is not open to EU institutions to extend their own competences, this is left to the Member States

Distinction must be drawn between two types of law:

1. Positive harmonisation – the imposition of common rules

2. Negative harmonisation – the removal of barriers

Positive Law

The EU is given a number of ‘sector-specific’ legal bases, however the main competences for our purposes are its functionally-driven competences found in Article 114 TFEU and Article 352 TFEU

9. Article 114 TFEU

Article 114 TFEU:

The European Parliament and Council shall, acting in accordance with the ordinary legislative procedure … adopt measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market …

This gives the EU the ability to legislate where existing rules impeded on the operation of the internal market. This then allows the EU to supersede diverse national rules which are inhibitive – EU rules can better aid the functioning of the internal market. Pre-exiting national rules often act to the internal market’s detriment.

The overall logic of Article 114 TFEU is that harmonised rules create a more intensely integrated market.

However, this competence is not unlimited – in Tobacco Advertising, the CJEU took the view that harmonising the rules in the tobacco market did not improve the functioning of the internal market; it subsequently accused the EU of using the internal market as a mask to promote public health matters

Tobacco Advertising

• Facts: A tobacco advertising directive was challenged on the grounds of its failure to comply with the Article 100a (now Article 114 TFEU) competence.

• Held: The CJEU held that an outright ban on tobacco advertising could not be justified under Article 114 TFEU

  • While the EU had the competence to prohibit advertising of tobacco products in newspapers as a means of eliminating obstacles to free movement of advertising media, this could not be said for...