EU Law

EU Law

Justyna Bazylińska

Lecture 1: Pillar Structure & the Common Institutional Framework

Remarks on the history of the European Integration

1944: Benelux Treaty (customs union that comprised three neighbouring countries: Belgium, the Netherlands &

Luxembourg)

1948: OEEC (The Organisation for European

Economic Co-operation) It emerged from the Marshall Plan In 1961 the OEEC was replaced by the Organisation for Economic Co-operation and Development (OECD)

NATO North Atlantic Treaty Organisation, Military alliance of democratic states in Europe and North America.

1949: Council of Europe 

1953: European Convention on Human Rights (ECHR)

1951: ECSC Treaty (European Coal and Steel Community) Organs: High Authority

Assembly Council

Court of Justice

1952: EDC (European Defence Community) as an alternative to accession to NATO, fiasco

1957 the Treaties of Rome

European Atomic Energy Community (Euroatom) European Economic Community (EEC)

 Focus on economic integration

 Organs EEC: Commission, Council of Ministers, Court of Justice, Parliamentary Assembly

1965: time to move for EEC to qualified majority voting

‘Luxembourg Accords’: invoke ‘very important interests’ sidelining qualified majority voting

Enlargements: 1973  UK, Denmark & Ireland 1981 Greece

1986 Spain & Portugal

1995Austria, Finland, Sweden

2004Cyprus, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia

2007Romania and Bulgaria

The Lisbon Treaty

• Background

• To meet the challenges of the arrival of new members from central and eastern Europe, the European Council set up a Convention in December 2001 to prepare a

draft constitutional treaty.

• The convention completed its work in June 2003. The treaty was signed by EU leaders in Rome in October 2004 and sent to all member states for ratification.

• Although ratified by the majority of EU countries, the draft constitutional treaty was rejected by French and Dutch voters in May and June 2005.

• As a result, the reform process was suspended for 18 months, until a reform treaty was negotiated during 2007 and signed by EU heads of state and government in

Lisbon in December 2007.

• The Lisbon Treaty is currently being ratified by member states. The aim is to have it in force before the next

elections for the European Parliament in June 2009.

Main provisions of the Treaty

• Giving the European Parliament greater legislative and budgetary powers.

• Granting national parliaments a role in ensuring that the EU complies with the principle of subsidiarity.

• Increasing the number of areas covered by qualified majority voting in the Council.

• A clearer presentation of the breakdown of powers and

responsibilities between the Union and its member countries.

• A legally binding Charter of Fundamental Rights guaranteeing the freedoms and rights of European citizens.

• Election of a president of the European Council for a term of two and a half years, renewable once.

• A new post of High Representative for the Union in Foreign Affairs and Security Policy to increase the impact, coherence and visibility of the EU's external action.

The Nature of EU Law:

direct effect and supremacy

Doctrine of Direct Effect

Van Gend en Loos v. Nederlandese Administratie der Belastingen

Case 26/62 [1963] ECR 1

ECJ examined:

“Spirit and general scheme” of the Treaty; institutions;

Article 234; individuals

and stated that EC law constitutes new legal order which ‘not only

imposes obligations on individuals but is intended to confer upon them rights which become part of their legal heritage”

In broad sense direct efect means that provisions of binding EU law which are:

1. clear, 2. precise and 3. unconditional enough to be

considered justiciable can be invoked and and relied on by individuals before national courts.

In a ‘narrower’ or classical concept of direct effect is defined in terms of the capacity of a

provision of EU law to confer rights on individuals.

Supremacy [the relationship between EU law and national law]

Flamino Costa v. ENEL

• Case 6/64 [1964] ECR 585,593

The validity of EC law can never be assessed by reference to national law.

National courts are recquired to give immediate effect to the provisions of directly effective

EU law (of whatever rank) in cases which arise before them, and to ignore or to set aside any

national law (of whatever rank) which could impede the application of EU law.

The requirement to ‘set aside’ conflicting national law does not entail an obligation to nullify national law, which may continue to apply in any situation which is not covered by a conflicting provision of Community law.

Principles governing the division &

the exercise of powers

1. Arts.:

 4 TEU: loyal cooperation principle

 5 TEU: principle of conferral, principles of subsidiarity and proportionality

2. Delimitation of and arrangements for exercising EU competences – Arts. 2-6 TFEU

Principle of conferral

Article 4 TEU:

 The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality.

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

 Competences not conferred upon the Union in the Treaties remain with the Member States.

Principle of subsidiarity

intended to regulate lawfulness of exercise of EU competence

Article 5 TEU: EU only has competence within the limited areas in which it has been given power. If an area is within the EU’s exclusive competence there is no legal obligation to apply subsidiarity. EU action does not go beyond what is necessary to achieve Treaty objectives.

3 ideas behind subsidiarity:

• EU is to take action only if the objectives of that action can not be sufficiently achieved by the MS - test of comparative efficiency

• EU can better achieve the action because of its scale or effects - test of comparative efficiency

• if EU does take action this should not go beyond what is necessary to achieve the Treaty objectives - proportionality test

 The principle of subsidiarity is intended to ensure that decisions are taken as closely as possible to the citizen and that constant checks are

made as to whether action at Community level is justified in the light of the possibilities available at national, regional or local level.

 Specifically, it is the principle whereby the Union does not take action (except in the areas which fall within its exclusive competence) unless it is more effective than action taken at national, regional or local level.

 It is closely bound up with the principles of proportionality and necessity, which require that any action by the Union should not go beyond what is necessary to achieve the objectives of the Treaty.

 The Edinburgh European Council of Dec. 1992 issued a Declaration on the principle of subsidiarity, which lays down the rules for its application.

 The Treaty of Amsterdam took up the approach that follows from this declaration in a Protocol on the application of the principles of subsidiarity and proportionality annexed to the EC Treaty.

 Two of the things this Protocol introduces are:

1. the systematic analysis of the impact of legislative proposals on the principle of subsidiarity (the role of national parliaments)

2. the use, where possible, of less binding Community measures

National Parliaments role

 Article 5 (3)TEU:

• The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and proportionality.

• National Parliaments ensure compliance with the principle of subsidiarity in accordance with the procedure set out in that Protocol.

 Article 12 TEU

 Protocols:

• No 1 on the role of National Parliaments in the European Union

• No 2 on the application of the principles of subsidiarity and proportionality

Subsidiarity control mechanism

 allows national parliaments to assess whether new legislative proposals comply with the principle of subsidiarity

 the Commission systematically sends certain documents to national parliaments (legislative proposals, green and white papers,

communications, the annual legislative programme and other planning or policy documents).

 If legislative proposals concern a policy area that falls under shared competence, the Commission sends proposals to national parliaments to allow them to check if action should be taken at EU level

 this process is called the subsidiarity control mechanism.

How does it work?

• In cases where national parliaments consider that draft legislative acts do not comply with subsidiarity, they can send a reasoned opinion to the Commission within 8 weeks.

• The Commission must take account of the reasoned opinions it receives.

• Each of the 28 national parliaments is allocated two votes. If there are 2 chambers, each has 1 vote.

• When reasoned opinions represent at least one third of all the votes allocated to the national parliaments, the Commission must review its proposal.

• draft legislative acts related to justice, freedom and security - one quarter.

• In both cases the Commission can decide whether to maintain, change or withdraw its proposal. The Commission must give reasons for its decision.

• This is known as the 'yellow card' procedure.

• When reasoned opinions represent a majority of the votes and the draft act falls under the ordinary legislative procedure the Commission must review its proposal and decide whether to maintain, change or withdraw it.

• If the Commission decides to maintain its proposal, it must justify its decision to the EU Parliament and Council as to why the proposal complies with the principle of subsidiarity.

• This is known as the 'orange card' procedure.

• If a simple majority of members of the EU Parliament, or 55% of Council members, find that the proposal breaches the principle of subsidiarity, the proposal will not be given further consideration.

Procedures triggered so far

 To date, the 'yellow card' procedure has been triggered 3 times and the 'orange card' procedure has never been used.

• 2012 - one third of the votes allocated to the national parliaments was reached for the first time on a proposed regulation on the exercise of the right to take collective action. The Commission reviewed its proposal but did not find it in breach of the principle of subsidiarity.However, the Commission considered the views expressed and the discussions among the co-legislators, the European Parliament and the Council, and recognised that its proposal was unlikely to gather the necessary political support for its adoption. The Commission therefore decided to withdraw the proposal.

• 2013 'yellow card' procedure was triggered in relation to the Commission's proposal for a regulation establishing the European Public Prosecutor's Office.

After careful review of the reasoned opinions, the Commission concluded that the proposal complied with the principle of subsidiarity and decided to maintain the proposal. The Commission gave reasons for its decision in the Communication COM(2013) 851.

• 2016 - 14 parliamentary chambers in 11 EU countries objected to the Commission's proposal to review the posting of workers directive. After careful analysis of the reasoned opinions, the Commission concluded that the proposal complied with the subsidiarity principle and decided to maintain it. The Commission gave reasons for its decision in the Communication COM(2016) 505.

Proportionality principle

Article 5 (4)TEU:

Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties.

The institutions of the Union shall apply the principle of proportionality as laid down in the Protocol on the application of the principles of subsidiarity and proportionality.

Proportionality

 a legal principle that allows (or requires) balancing between competing values

 this enables judges to decide whether a measure has gone beyond what is required to attain a legitimate goal and whether its claimed benefits exceed the costs

 originating most clearly in German 19th century administrative law, proportionality has become a standard feature of constitutional analysis

Proportionality three-part test:

1)is the measure suitable to achieve a legitimate aim?

2)is the measure necessary to achieve that aim or are less restrictive means available?

3)does the measure have an excessive effect on the applicant's interests?

The general principle of proportionality therefore requires that a

measure is both appropriate and necessary, and as such the European Court of Justice to review both the legality of a measure, but also to

some extent the merit of legislative and administrative measures.

 first recognised by the ECJ in Federation Charbonniere de Belgique v High Authority [1954] ECR 245 Case C8/55

 in R v Minister of Agriculture, Fisheries and Food ex parte Fedesa [1990] ECR 1–4023 Case C-331/88

• European directive prohibiting the use of certain hormonal substances in livestock farming was challenged

• ECJ held that by virtue of the general principle of proportionality the lawfulness of the Directive depended on whether it was appropriate and necessary to achieve the objectives legitimately pursued by the law in question

• when there was a choice between several appropriate measures the least onerous must be adopted, and any disadvantage caused must not be disproportionate to the aims pursued

Loyal cooperation principle

Article 4 TEU:

Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in

carrying out tasks which flow from the Treaties.

The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the

Treaties or resulting from the acts of the institutions of the Union.

The Member States shall facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardise the

attainment of the Union's objectives.

Article 5 (4)TEU:

TITLE VII SOLIDARITY CLAUSE Article 222 TFEU

CATEGORIES AND AREAS OF UNION COMPETENCE

1. exclusive competence 2. shared competence

3. supporting competences (supportive, coordinative or supplementary competences)

Exclusive competences

Article 3 TFEU:

areas in which the EU alone is able to legislate and adopt binding acts.

EU countries are able to do so themselves only if empowered by the EU to implement these acts

1. customs union

2. the establishing of competition rules necessary for the functioning of the internal market

3. monetary policy for euro area countries

4. conservation of marine biological resources under the common fisheries policy 5. common commercial policy

6. conclusion of international agreements under certain conditions

Shared competences

Article 4 TFEU:

the EU and EU countries are able to legislate and adopt legally binding acts. EU countries exercise their own competence where the EU does not exercise, or has decided not to exercise, its own competence

 internal market

 social policy, but only for aspects specifically defined in the Treaty

 economic, social and territorial cohesion (regional policy)

 agriculture and fisheries (except conservation of marine biological resources)

 environment

 consumer protection

 transport

 trans-European networks

 energy

 area of freedom, security and justice

 shared safety concerns in public health matters, limited to the aspects defined in the TFEU

 research, technological development, space

 development cooperation and humanitarian aid

Supporting competences

Article 6 of the TFEU:

the EU can only intervene to support, coordinate or complement the action of EU countries. Legally binding EU acts must not require the harmonisation of EU countries’ laws or regulations. Supporting

competences relate to the following policy areas:

 protection and improvement of human health

 industry

 culture

 tourism

 education, vocational training, youth and sport

 civil protection

 administrative cooperation

Non-discrimination principle, reverse discrimination problem

• See Articles: 18, 19 TFEU, 45 (2) TFEU

• „any discrimination on grounds of nationality shall be prohibited”.

• Article: 10 TFEU

• „to take appropriate action to combat

discrimination based on sex, racial or ethnic

origin, religion or belief, disability, age or sexual orientation”