EUROPEAN LAW UNIT 1, Apuntes de Derecho de la Unión Europea

¡Descarga EUROPEAN LAW UNIT 1 y más Apuntes en PDF de Derecho de la Unión Europea solo en Docsity! DUE UNIT 1 DUE UNIT 1. THE CONSTRUCTION PROCESS OF EUROPE Treaties (date in which they entered into force)  Treaty establishing the European Coal and Steel Community (1952). ECSC.  The Rome Treaty (1957). The most important piece of legislation that we have had. The main legal bases.  The Single European Act, SEA (1986)  The Maastricht treaty (1993)  The Amsterdam treaty (1999)  The Nice treaty (2003)  The Lisbon treaty (2009) We have to see other treaties as complements from the base one. The rest of the treaties from the SEA onwards, make amendments or corrections to this one; the other treaties delete or eliminate some of the elements that were present in the previous ones. European legal process should be seen as a process, that started with the ECSC treaty and was developed with the other ones. We will see the process through a constitutional approach. EU started as an international organization, but it evolved as something very different from traditional international organizations. It evolved to something closer to a constitutional state, without being it. The main thing is that we do not know what the EU is right know, it is a mixed from state, organization and tertium genus. Tertium genusis is an unspecified category. Speaking about the EU, it is a very special regime. It has characteristics of IOs but also some other unique characteristics. 1. THE ECSC TREATY (1952). TREATY OF PARIS There were two different models concerning how European states should integrate. Federalists wanted a political union such as European United States. The new functionalists wanted the same goal but through other different means, they were more practical, realistic and concrete → “always have it in mind, never mention it”. They probably wanted the political union as well, but through different means. This is how the coal and steel union was created, a first step that served as a test. It was destined to be left behind and progress to a next stage. 1 DUE UNIT 1 The same countries which were fighting in World Wars negotiated this treaty years later. Its only concern is the creation of a common market in the area of coal and steel, so that member states which signed the treaty put together their coal and steel production and markets. Thus, the purpose was very specific, and it had a deadline. It does not exist anymore. At the time, it was very successful. The important thing to see was that what would be the main European institutions are already in this treaty, such as the ECSC High Authority, Court of Justice, Assembly and Council of Ministers (current European council), etc. Although it has expired –the treaty was framed for 50 years only- it is important to start the recount of the legal historical aspects of this, as they are the birth of the current European institutions.  EUROATOM treaty (1957) After the signature of the treaty, the member states taking into account that it was quite successful decided to sign the EUROATOM treaty (1957), whose purpose was the same but in the area of atomic energy. It was signed in Rome but it is not the same as the Rome treaty. 2. THE ECC TREATY (1957). TREATY OF ROME The purpose of the ECC treaty was to create a common market (market integration). The difference between this and the two previous ones is that the previous focused on specific markets, and this does on a general one on an overall objective, which is to create a common market (a space where services, goods, capital and workers can move freely) in ALL fields. It’s much more ambitious and important. However, it is very possible to see that if the other two wouldn’t have been successful, this wouldn’t have been as well, as it’s a big step forward. It entails a regulatory harmonization as well. A common regulation must be created and implemented. Another option is to conduct a mutual recognition, so that each country accepts the other countries´ regulations. This second option could entail a race to the bottom. There is another point about this. Products may be differentiated due to their quality, in this case there would be a race to the top. We call the phenomenon of eliminating tariffs and other barriers negative integration, whereas positive integration refers to the creation of new regulations and standards. Both strategies were used in this step. The (neo) functionalist method: The idea is that the regional integration process will take place step by step, little by little. Integrating first specific areas of public intervention and then, there would be a sort of spill over effect towards new areas, which are connected to previous ones and in an ‘automatic’ 2 DUE UNIT 1 3. THE SINGLE EUROPEAN ACT (1986). TREATY OF BRUSSELS First amendment of the EEC Treaty. It entered into force on 1st July 1987. The Luxemburg compromise supposed a de facto amendment on the treaty. Its objective was to complete the internal market. Its main point was the major amendment: re-establishment and extension of majority voting (Art.100A TCEE –currently art.114-). There have been new enlargements in the period from the EECT to the SEA: Greece, Portugal and Spain. It has been more time consuming, but with 12 members it’s still possible to achieve consensus by unanimity. The time was right because during previous years members had taken decisions by unanimity, so they had created enough trust to conduct this change. First consequence on decision making procedure. Decisions will not be anymore taken by unanimity. Return to majority voting and extension of qualified majority. Change of art.100A. this article concerns single market issues. It is importance resides in the fact that the main target of the EEC is market integration and harmonization. The legal bases for a lot of decisions was art.100A. It was the perfect time bc the 30 previous years they had taken decisions by unanimity and they had developed trust. The vote at the Council level were not published at the time, so how do we know that they did implement it? Bc there were spies. In 1957 the goal was creating a common market. At this point, the goal was creating a single market. These two terms mean the same. Why do we use two different names? In the 80s, had the common market been completed? No, it was not. Aiming at a single market means acknowledging the failure to achieve the common market, but at the same time reinforce the willingness to continue with the process of market integration. Even today it is not yet completed. The process still continues, and it is important to continue this process even if the outcome remains so far. There is no fiscal integration. The cause is probably the need for unanimity in that area. Taxing is a critical issue, and fiscal integration is impossible without common taxes. Labour integration is neither achieved. Has the common/single market been completed? No. Market integration is a process rather than as an end result. Market integration will probably never be completed, because there will always be reluctant sectors. There had been stability for 30 years. Since the single act, developing treaties became much more continuous. The end of the Cold War meant that states from centre and eastern Europe wanted to get into the EU. Germany was reunified. All countries that were under Soviet influence wanted to follow Germany´s example and access the EU. The answer was to generally accept 5 DUE UNIT 1 all of them. Some critics say that it was a mistake. Some others consider it a wise decision. The operation was so complex that it was impossible to do it in one step. There were many reforms to facilitate access into the Union and regulate all changes. 4. THE MAASTRICHT TREATY (1993) The EU in history can be divided in two times: before and after the Maastricht treaty, as it’s a real change or shift in the nature of the EU. This is because until then things were easy, but after the whole thing got much more complicated. Therefore, this is the dividing point in EU history. The Maastricht treaty operates a major change, the EU adopts another structure: the Greek temple (the temple structure). They do because before what we had was one pillar, and after we get to have three pillars. Common provisions for the three pillars. What are the pillars?  First pillars: EECT (ECSCT) It’s the supranational pillar, because the objective now is wider that economic integration, it is also political. Qualified majority voting.  Second pillar: CFSP (EUT, Chapter V) First intergovernmental pillar: Common, foreign and security policy. External relations policy of the European community.  Third pillar: PJCCM (JHA) Second intergovernmental pillar. Justice and home affairs. (Free circulation of people). It is related to security and judicial harmonization. How do we define them? The supranational pillar would be now in terms of decision making procedures by the majority rule while the intergovernmental pillars would be governed by unanimity. The second major difference is in terms of institutions: the first pillar/ supranational institutions are the main actors, whereas in the other pillars we have national governments being the main actors. In the first pillar we have no unanimous decision making at all, but we have some instances of majority voting in the second and third pillars. As regards institutions, this doesn’t mean that national governments are completely absent in the first pillars, and in the second and third pillars supranational actors are also present, they have a certain role. 6 DUE UNIT 1 It is a treaty that integrates the principle of subsidiarity. In short, member states come first. If they cannot achieve a goal, then the Union can act. How do we define the line in which its action becomes legal? How do we know when objectives are not “sufficiently achieved”? The EU must make a test to assess if members are able to achieve a certain goal. Benefits and costs must be weighted to consider states´ action. It is a break for the EU intervention. Before this moment, if the union had competence, it could easily act. From that moment on, having competence was a needed condition but not a sufficient one. There is a link between qualified majority and subsidiarity. A state outvoted in a decision may say that subsidiarity protects it, so it can implement that (unwanted) measures as the state considers. The unanimity break had been eliminated, so the subsidiarity break replaced it. From that moment, the Court has been very reluctant to implement subsidiarity to take over some EU act. Unless it is very clear that the EU should not have acted, its action may not be nullified. The whole structure is the European Union. This is the major change and major source of confusion introduced by Maastricht. What Maastricht does is to create two structures: –círculos concéntricos- a) The European Union was created in here: b) The EC c) Intergovernmental The European Community is the only one with international personality, so the European Union itself could not validly act in the international sphere. 5. THE AMSTERDAM TREATY (1999) Amendments:  Transfer to the Communities some of the areas belonging to the JHA, which becomes PJCCM (police and judicial cooperation in criminal matters). (ETC, Chapter IV)  It is the Treaty of flexibility or “enhanced cooperation” treaty (Maastricht, subsidiary principle Treaty)  Enhanced cooperation concept: it allows those member states that want to further integrate to do so, whereas it allows at the same time that those Member States that do not want to further integrate, do not integrate further. 7 DUE UNIT 1 The third pillar has moved to the first pillar in a particular way: it creates a special regime within the first pillar to allow the free movement of people. And the common foreign security policy has remained as the second pillar, so now we have a two-pillar structure in which the EC has disappeared.We only have one structure: the European Union, which has legal personality to act in the international sphere. A list of EU (exclusive) competences was introduced to define its limits. The previous debate in the 90s was that the Union could not have a list of competences because it would resemble a federal state in which the center and the periphery have different competences. But this was done a couple decades later. What we have now is a two pillar structure:  Supranational: the EU + Euratom.  Intergovernmental: part of Common Foreign and Security Policies (what was before the second pillar). The EUT included these two pillars, which are later limited by the TFEU. The EUT is more general, whereas the second develops in detail the same matters. Why this structure? Difficult to explain. The two pillars are found in the EU Treaty but are also developed in the functional Treaty. There is a relationship between EU Treaty and the functional Treaty. However, there is no supremacy between them. 10 EU Treaty EU (Euroto m) Part of CFSP EU Treaty DUE UNIT 1 Main changes:  EUT y TFEU, but only one union: the EC disappears.  A single legal personality for the EU (art.47 EUT)  Extension of qualified majority voting  Total transfer of the third pillar to the EU part of the CFSP  A more specific definition of the EU institutions (art.13-19 EU Treaty)  List of competences for the Union were listed for the first time. This was done to clarify the relations between the EU and the Member states. Before it was not written in order to not be seemed to be a federal state. (exclusive, shared, coordinate, support, or supplement). Arts.2,3.4,6 TFEU. Exclusive competences as on monetary policies→ this is carried out by the ECB (European Central bank).  Reforms of the judicial system of the EU (The EU Court of Justice comprises: the Court of Justice of the EU; the General Court; specialized Courts. Art.19 EU Treaty)  Fundamental rights legally binding (art.6EUT). (Poland and UK made reservations. See protocol number 30). It gives legally binding effect to the charter of fundamental rights written in the Nice treaty. If we used the “European constitutional treaties” as a validity standard, every domestic legal bodies (including constitutions) would be subject to it. It would be the top of the pyramid. But this charter did not have a validity effect. Was it useless then? It was not. It was used as an interpretative standard. It still has legal effects, although they are lesser. The Lisbon treaty made the charter legally binding. Kelsen. At the top we would have the European Union law. The constitution is not anymore at the top. Validity standard: Any other law conflicting with the European union law would be declared as void (if clashing). Legal hierarchy is the most important thing. In other to work as a validity standard, a norm must be legally binding. Interpretative/interpretation standard: norms that are not legally binding 11