The Law of Europe

The European Union

 Created after WWII as a mean to make less likely the start of another war. Initiative of
European and non-European countries but really created by the French, Robert Schuman, in
1950.

Sources of EU law
Primary EU law
 Treaties (Maastricht, Lisbon…)

Secondary EU law
 Can create binding legal effects through: regulations, directives and decisions as well
as with the case law of the Court of Justice of the European Union

Regulations  contain rules, just like «ordinary» legislation. They have general application
and are binding and directly applicable in all Member States thus they directly create rights
and duties for individual persons and organizations in the Member States.

Directives  special type of legislation, directed to the Member States, obligating them to
bring about a legal situation conforming the contents of the directive in their national law. In a
sense, directives contain rules, but the EU does not directly impose these rules. It is left to the
Member States to implement them in their national systems.

- Opportunity to make a national regulation that fits in the existing legal system.

Decisions  Where regulations are meant to be general, decisions are typically meant for
specific cases. A decision is binding, but decisions that specify their addressee only bind that
addressee.
 Main institutions of the EU and ECB (European Central Bank)

.See dossier ELS The organization of the EU.png.

The Commission (is in Brussels)  The institution within the EU that has the promotion of
the general interest of the Union as its official task. To fulfill its central role in legislative
procedures, the Commission must ensure that the treaties and other EU laws are applied. It
has an important role in EU policy making. CAN GO TO THE CJEU if a Member State is not
applying the legislation.

The European parliament  The parliament has three main functions:

 It is involved in the legislative process.
 It must approve the annual EU budgets (Article 314 TFEU).
 It supervises the Commission.

The Council of the European Union (is in Luxembourg) The Council of the European
Union consists of ministers from the Member States. Which ministers are included depends
on the issue that is at stake. The main responsibility of the Council of the European Union is
to take policy and legislative decisions, often in cooperation with other EU institutions. The
Council of the European Union functions as an intermediary between the world of Brussels
and the national governments.

The European Council  Members of the European Council represent their national States in
negotiations and decision-making that determines the general course of development of the
EU. The members of the European Council are the Heads of State (or Heads of Government)
of the Member States; they are usually prime ministers, sometimes presidents. These Heads of
State are supplemented by the President of the European Council (not a Head of State) and the
Chair of the Commission (Article 15, Section 2 TEU).

The Court of Justice of the European Union  Its tasks are manifold but the two main ones
are:

 Giving preliminary rulings concerning the interpretation of the TEU and the TFEU
and the validity and interpretation of acts of the institutions, bodies, offices, and
agencies of the EU (Article 267 TFEU). If a national court of a Member State must
decide a case where, for instance, the interpretation of the TEU or the TFEU is at
stake, it must ask for a decision from the CJEU about the proper interpretation of these
treaties. Such a decision is a preliminary ruling.
  Reviewing the legality of legislative acts intended to produce legal effects vis-à-vis
third parties by the Council, the Commission, and the European Central Bank, other
than recommendations and opinions, as well as the acts of the European Parliament
and the European Council (Article 263 TFEU).

The European Central Bank  Together with the national banks of the Member States which
have the Euro as their national currency, the European Central Bank (ECB) has the main
responsibility for the monetary policy of the EU (Article 282 TFEU). Its primary task is to
maintain price stability (Article 283 TFEU). In practice this means that the ECB strives for a
limited amount of inflation within the Euro countries.

The ordinary legislative procedure

In this procedure, the Commission, the Council, and the European Parliament must cooperate
in order to create new legislation. If these three institutions agree, the procedure is quite
simple:

1. The Commission submits a proposal to the European Parliament and the Council.
2. The European Parliament adopts its position and communicates it to the Council.
3. If the Council approves the European Parliament’s position, the act concerned is
adopted in the wording that corresponds to the position of the European Parliament.

 If the Council and the European Parliament disagree, the legislative

proposal may be sent back and forth several times between these two institutions
and the Commission. The decision-making procedure within the Council may
change from unanimity to qualified majority voting, but in the end,
the Council and the European Parliament must agree if a legislative proposal is to
be adopted

Qualified Majority Voting

Article 16, Section 4 TEU = As from 1 November 2014, a qualified majority shall be defined
as at least 55% of the members of the Council, comprising at least 15 of them, and
representing Member States comprising at least 65% of the population of the Union.

 A blocking minority must include at least four Council members, failing which the
qualified majority shall be deemed attained.

The Internal Market

To stimulate this single internal market, the EU has pro- claimed the «four freedoms»: the
free movement of goods, persons, services, and capital.

Free movement of goods

 Prohibition of quantitative restrictions on trade or – in general – movement of goods

between EU Member States.

 Quantitative restrictions on imports and all measures having equivalent effect shall be
prohibited between Member States (Article 34 TFEU)

 prohibition of customs duties on the transportation of goods

 The Union shall comprise a customs union which shall cover all trade in goods, and
which shall involve the prohibition between Member States of customs duties on
imports and exports and of all charges having equivalent effect, and the adoption of a
com- mon customs tariff in their relations with third countries (Article 28, Section 1
TFEU)
 Banning of other measures that could hamper the movement of goods (such as
differences in a same product between two member states -ex Cassis de Dijon)

Free movement of persons

 Persons can move freely between countries and provide services from other countries than
from where they originate.

 Article 45 TFEU

1. Freedom of movement for workers shall be secured within the Union.

2. Such freedom of movement shall entail the abolition of any discrimination based on
nationality between workers of the Member States as regards employment,
remuneration and other conditions of work and employment ...

 Article 49 TFEU “Within the framework of the provisions set out below, restrictions
on the freedom of establishment of nationals of a Member State in the territory of
another Member State shall be prohibited. Such prohibition shall also apply to
restrictions on the set- ting-up of agencies, branches or subsidiaries by nationals of any
Member State established in the territory of any other Member State.

Freedom of establishment shall include the right to take up and pursue activities as
self- employed persons and to set up and manage undertakings ...”

Free movement of services

 Freedom to provide and receive services in another Member state.

 Article 56 TFEU “Within the framework of the provisions set out below, restrictions
on freedom to provide services within the Union shall be prohibited in respect of
nationals of Member States who are established in a Member State other than that of
the person for whom the services are intended ...”

Free movement of capital

 Since you can provide services and buy services: money needs to be able to travel from
one Member state to another.

Article 63 TFEU

1. Within the framework of the provisions set out in this chapter, all restrictions on the
movement of capital between Member States and between Member States and third
countries shall be prohibited.
2. Within the framework of the provisions set out in this chapter, all restrictions on
payments between Member States and between Member States and third countries
shall be prohibited.

EU Law and National Law of the Member States

Van Gend & Loos = EU law can give nationals rights (and impose duties upon them),
independently of national legislation.

Costa/ENEL = States cannot override the law of the treaty by means of later national
legislation.

 If they could, the resulting law might vary from Member State to Member State, and
the obligations undertaken through the treaty would become conditional on not being
derogated from by a later national law.

Subsidiarity and the Requirement of Legal Basis

 While the EU may have powers that prevail over those of the Member States, they are only
in those fields in which the Member States have transferred those powers to the EU. If the EU
is to perform juridical acts and change the legal positions of Member States and their
nationals, it must like all other legal agents have received the appropriate competency.

 The limitations of the powers of EU institutions take the shape of two demands on the
exercise of these powers that were imposed on the EU in the treaties:

1. Powers can only be exercised within the limits of the competencies

conferred upon the Union (Article 3, Section 6 TEU).

2. The use of these competencies is governed by the principles of subsidiarity

and proportionality (Article 5, Section 1 TEU).

Legal Basis

 This means that the EU has only those competences that were attributed to it and no others.
This is essentially the principle of legality, which holds in general in public law. In its
application to the EU, it is sometimes called the demand for legal basis.

Subsidiarity

 Moreover, the EU should only use its powers where it can perform a task better than the
Member States could do them- selves. For example, the EU should only limit the use of
alcohol if a central regulation would be more effective than national regulations. This is the
principle of subsidiarity.

Proportionality

 The EU should only act if the:

1. Adopted measure is suitable to achieve the desired end.

2. Measure is necessary to achieve this end.
3. Measures it takes are not worse than the problem it wants to address with this
measure.

Together, these three demands fall under the principle of proportionality. The demand for a
legal basis in combination with the principles of subsidiarity and proportionality together limit
the powers of the EU and impose a limit on the amount of powers that the Member States
have transferred to the EU.

Towards an Ever-Closer Union or Not...?

Intergouvernmentals

 Organizations were meant to further the national interests of the Member States.
  Council of the European Union and European Council can best be understood from this
intergovernmental perspective.

Supranationals

 EU is seen as a means to further the common interests of its citizens, including peace and economic prosperit,
the EU transcends the Member States and their national interests.

 European Commission, the European Parliament, the CJEU, and the ECB are best understood from this
supra- national perspective.

Eurosepticism

 Some think that the EU had taken too many powers between the hands of the Member
States: Brexit

General arguments/fears:

 Democratic Deficit
 Enlargement
 Market Instead of Community

Spillover and Spillback

 Meaning:

 Spillover = The full realization of one thing requires the realization of some other
thing.

! The projected trajectory toward an ever-closer union with spillover as the

driving force is known as the Schuman method.

 Spillback = The fact that the same force that drove the integration of Europe may also
drive it back if the final outcome is not considered to be acceptable.