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Scarica Diritto dell'Unione Europea Diritto dell'Unione Europea e più Schemi e mappe concettuali in PDF di Diritto dell'Unione Europea solo su Docsity! EUROPEAN UNION LAW EU law in a nutshell The primary law/legislation of the EU is composed by:  TEU.  TFEU.  revision treaties (since the Rome Treaty of 1957, the 1992 Treaty of Maastricht…).  accession treaties.  protocols and annexes (they legislate determined issues, at times of transitory nature, that are linked to specific sectors or States). In the Van Gen en Loos ruling (1963), the Court of Justice outlined the main characteristics of the EU. They are innovative, since they are nowhere to be found in the other treaties of international organisations: - nature of the institutions. - nature of the acts. - jurisdictional organisation (which supervises both interpretations and validity checks). In the EU case: - institutions that do not have an intergovernmental character, eg. EU Parliament. - there is a certain typology, i.e. the regulations, which do not require ratification to be effective; - presence of the Court of Justice (prejudicial competence). The revision process is linked to modifications of the treaties and is regulated by art. 48 TEU. There are various types of revision: - ordinary revision (draft of a project, later discussed in an intergovernmental assembly by the MSs and eventually ratified). - simplified revision (some steps of the process are skipped). - atypical revision (rare, other methods). Are there any limits to the revision process? It is controversial. According to some, the only existing limits are those imposed by general international law and especially the so-called ius cogens, i.e. that customary law that is characterised by non-derogation. According to others, instead, there are a number of super constitutional principles that are untouchable, e.g. modifications may occur only following the predetermined paths, fundamental rights and some essential features of EU institutions such as the competences of the Court. The most relevant modifications to the treaties took place in the last decades. They are:  the Single European Act (SEA), 1986 – it should have strengthened the role of the EP; however, it was scaled down by the assembly which worked on it;  the Maastricht Treaty, 1992 – changed the functioning of the union and added two pillars, the PESC and the GAI (Justice and Internal Affairs). It introduced the EU citizenship and erased the mercantilist soul of the union.  the Amsterdam Treaty, 1997 – led back the PESC and GAI to a communitarian level.  the Treaty of Nice, 2001 -  the Lisbon Treaty, 2007 – everything is brought back to the communitarian level (not intergovernmental), except for the economic and currency policies and the foreign policy sector. The admission process to the EU is currently regulated by art. 49 TEU. Firstly, the application for admission is submitted. Secondly, the Commission expresses itself and the EP approval is requested. Thirdly, the Council of the EU must come up with a decision which is to be voted unanimously. Moreover, a transitory phase is foreseen. Before applying for admission, a state must conform to a few parameters, including both economic and political criteria as listed in art. 2 TEU. 1957: Benelux, France, Germany, Italy. 1973: Denmark, Ireland, the UK. 1981: Greece. A first EU reference to human rights was made in the Treaty of Maastricht without however a proper catalogue. It was the Lisbon Treaty which, by modifying art. 6 TEU, equalised the EU Chart on fundamental rights, which had been adopted without being binding during the conference in Nice, to the treaties. Human rights in communitarian law represent a parameter of legitimacy of EU juridical acts. The latter can be brought to the attention of the Court in case of violation of the former. Possible annulment of EU acts under art. 263 TFEU or infraction against MSs under art. 258 ss. TFEU. The function of political control is carried out according to art. 7 TEU. The democratic principle, according to which EU decisions are also an indirect expression of the citizens’ will, is among the rights mentioned in art. 2 TEU. Its only concrete expression is the EP, which at the beginning had just limited powers and it was not elected by direct suffrage. It changed after 1976 thanks to an EU decision, first elections in 1979. Actually, MSs tried to reinforce the principle also by strengthening the power of national Parliaments, mainly through the adoption of two protocols:  Protocol n. 1 on the role of national Parliaments within the EU;  Protocol n. 2 on the implementation of the subsidiarity and proportionality principles. They foresee a more or less strong participation of national Parliaments to the decisional process. Moreover, the Lisbon Treaty introduced the popular legislative initiative (art. 11, par. 4 TEU). The Commission is not bound to sustain the proposal though. EU competences are regulated by art. 5 TEU, more specifically the principle of conferral. According to it, EU institutions can intervene only in the sectors attributed to each of them by the treaties. The only admissible exceptions are the flexibility clause (art. 352 TFEU) and (rarer) the principle of parallelism of competences, as foreseen by the Court of Justice case law. The former foresees that wherever the treaties have given the union a goal to be achieved without providing the instruments, the single act can be adopted by following a special, rigid procedure, which entails the unanimous approval of the Council and the approval of the EP, as envisaged by art. 352 TFEU. The Union however operates following the subsidiarity and proportionality principles and competences can be exclusive, concurrent, supporting, of coordination and completion (these were introduced by the Lisbon Treaty). The institutions of the EU are listed in art. 13 TEU, and they are: the EP, the European Council, the Council of the EU, the European Commission, the Court of Justice, the ECB and the Court of Auditors. The political ones, those that take part in the decisional process, are the European Council, the EP, the Council and the European Commission. Only the last three ones play a key role. The Council is the assembly of the union, where all MSs are represented (one representative each). The European Council is instead constituted by the MSs’ heads of government or of state plus the president of the Commission and the president of the Council itself. The EP is formed by 751 representatives directly elected by EU citizens. Lastly, the Commission is formed by one citizen per MS. Its vice-president is also the high representative for PESC (is appointed by the European Council). The Court of Justice and the Court of Auditors exercise both a control function (in separate fields). Decision-making role: Commission (proposal), EP, Council of the EU. Control function: EP (political) over the Commission (motion of censorship). In addition, it appoints the European mediator and committees of inquiry. Moreover, it has a permanent committee for petitions. Supervisory function: Commission. In addition, it has the option of initiating an infringement procedure, i.e. a procedure aimed at verifying whether a MS has infringed the communitarian law, even before the Court of Justice. Jurisdictional control: Court of Justice. Its main competences: annulment competence; infringement procedure; “competence in shortage” (competenza in carenza); and prejudicial competence (powers on preliminary rulings), which is the only indirect one. The last one is based on a cooperation between a national judge and the Court, whenever a judge has a doubt of interpretative nature or of validity of an EU norm s/he must or can refer to the Court. In this way the Court produced the most important EU case law that enhanced the process of European integration. Within the treaties there are:  ordinary legislative procedure -> the proposal comes from the Commission, then the EP and the Council interact and decide (can have the same weight or not, in the latter case usually the Council is more important);  the single norms foresee special procedures, but then in general the Council decides with an intervention of the EP either in advisory capacity or in approval one; sometimes also other organs can be consulted. An example is the budgetary approval process. The procedure for the conclusion of international agreements (art. 218 TFEU), not for sure a legislative one, foresees a decision by the Council. A variation is described in par. 11, according to which the Court of Justice can express its opinion, which, if negative, does not allow the approval of the agreement until something is changed. The secondary legislation derives its juridical strength from primary law, i.e. mainly the treaties. It is formed by:  typical acts – art. 288 TFEU, diversifies between binding and non- binding. The former are regulations, directives and decisions (a category is that of conclusion of international agreements, which is located between primary and secondary legislation), while the latter are recommendations and opinions.  atypical acts – are not specifically described by the treaty. Characteristics:  typical, binding acts – motivation, legal basis (general ones). Then:  regulations: general scope, mandatory in all their elements, directly enforceable (no need for ratification);  directives: specific recipients (MSs), not directly enforceable, obligation to achieve results (it requires MSs to adopt specific measures to achieve set goals). However, the Court of Justice has acknowledged the It is fundamental to say that direct applicability is the premise of direct effect. A rule is self-executing when it is: 1. clear, 2. precise, 3. unconditional. So, a self-executing rule gives exact indications on how to solve the dispute, a typical example is a rule that prohibits something  non facere. Furthermore, aseptic securing gruel has a complete normative content, and Member States have only to apply it. A further thing that must be said about Direct effect is that other than bringing a self-executing rule, it gives also rights to individuals. GOVERNMENTAL POWERS The “government” is that part of the executive that is charged with providing leadership and direction. And depending on whether there exists one or two organs charged with political leadership within a society, we speak of a monist or a dualist executive.   Monist Executive: United States Dualist Executive: Great Britain & France EUROPEAN COUNCIL The composition of the European Council is as simple as it is exclusive. It consists of the Heads of State or Government of the Member States. The European Council shall meet twice every six months, but can have additional meetings when the situation so requires. These regular meeting follow the seasons: there is a spring, summer, autumn, and winter meeting. Functions: 1) Primary functions: Executive Function (cf. ART.15 TEU: “The European Council shall provide the Union with the necessary impetus for its development and shall define the general political directions and priorities thereof.” (Presidency Conclusions). Aim: To provide the major political direction of the Union. 2) Secondary Functions: (2) constitutional; ART. 50 TEU-> A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament. (3) institutional; Composition of the Parliament-> ART. 14 TEU The European Parliament shall be composed of representatives of the Union’s citizens. They shall not exceed seven hundred and fifty in number, plus the President. Representation of citizens shall be digressively proportional, with a minimum threshold of six members per Member State. No Member State shall be allocated more than ninety-six seats. The European Council shall adopt by unanimity, on the initiative of the European Parliament and with its consent, a decision establishing the composition of the European Parliament, respecting the principles referred to in the first subparagraph. (4) arbitration Decision-making -> How will it decide? The decision-making process within the European Council is shrouded in secrecy for its meetings are not public. The default principle is set out in ART. 15 (4) TEU: “Except where the Treaties provide otherwise, decisions of the European Council shall be taken by consensus.” The president of the European Council: (a)  Shall chair it and drive forward its work; (b)  Shall ensure the preparation and continuity of the work of the European Council in cooperation with the President of the Commission, and on the basis of the work of the General Affairs Council; (c)  Shall endeavour to facilitate cohesion and consensus within the European Council; (d)  Shall present a report to the European Parliament after each of the meetings of the European Council. The President of the European Council shall, at his level and in that capacity, ensure the external representation of the Union on issues concerning its common foreign and security policy, without prejudice to the powers of the High Representative of the Union for Foreign Affairs and Security Policy. Commission: “Elections” Two- stage process with the appointment of the President… … should the latter be the “leader” of the strongest political formation? Second stage: Commission as a collective body…. The Commission: President (Ursula) ART. 17 (6) TEU: The President of the Commission shall: a.lay down guidelines within which the Commission is to work; b.decide on the internal organisation of the Commission, ensuring that it acts consistently, efficiently and as a collegiate body; (she is a sort of “Prime Minister”). suspected infringement of these principles. If it finds that there has been an infringement, it shall propose appropriate measures to bring it to an end.’ Judicial Involvement Art. 258 TFEU ‘If the Commission considers that a Member State has failed to fulfil an obligation under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations. If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice of the European Union.’ Commission Decision-Making: oral, written, empowerment procedure Instrument Typical Policy cycle: “five-year strategic objectives” -– (annual) “policy strategy”—(annual) “work programme”—(annual) “management plan”. The Commission is responsible to the EU Parliament. Upward Cooperation : Commission proposes-> European Council acts Downward Cooperation : European Council “invites” the Commission to act PART II: Structure & Processes The EU: Governmental Processes 1. Legislative Powers & Process 2. Executive Powers & Processes 3. External Powers & Processes (Foreign Affairs) • EU External Powers 1. EU External Procedures, esp. Treaty-Making 2. EU External Powers – Scope 3. EU External Powers – Nature 4. EU External Powers and the Member States • United States of America When it comes to Foreign Affairs the US Constitutions, ART II-Section 2 (clause 2) states: “The President shall have power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.” 2 stages (Advice and Consent of the Senate). NOW: When it comes to this, the president has the power to make Treaties (marginal involvement of the Senate). The "Congressional-Executive Agreement” In parallel to the “treaty-making procedure” in Article II, American constitutionalism thus recognizes an “agreement-making procedure” in Article I. Congressional agreements are here concluded under the “ordinary” legislative procedure set out in that Article I – Section 7. This gives the House of Representatives an equal share, with the Senate, in the conclusion of international agreements. Presidential “Executive” Agreements Since its earliest days, American constitutional thought has allowed the President to conclude “agreements” under his own constitutional authority. These executive agreements are called sole executive agreement, since the President is the sole constitutional organ involved in their conclusion. These agreements are – like treaties – the supreme law of the land. Treaty-Making in the EU Humble beginnings Treaty-Making = Commission + Council Luns Procedure (1964) Westerterp Procedure (1973) “Stuttgart Declaration” (1983) Treaty Amendments until Lisbon The Union legal order adopts – again like the United States – a monist stance vis-à-vis international treaties; and a Union treaty will thus be “equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provisions[.]” What is the democratic legitimation behind this form of “external legislation”? Ordinary Treaty-making Procedure: ART. 218 Central Role of the Council: The Council shall authorize the opening of negotiations, adopt negotiating directives, authorize the signing of agreements and conclude them.” Procedural Stages 1. Initiation Commission or High Representative. The Commission, or the High Representative of the Union for Foreign Affairs and Security Policy where the agreement envisaged relates exclusively or principally to the common foreign and security policy, shall submit recommendations to the Council, which shall adopt a decision authorising the opening of negotiations and, depending on the subject of the agreement envisaged, nominating the Union negotiator or the head of the Union's negotiating team. (2) 2. Negotiations Council nominates: Commission or HR, but where is the European Parliament? Council directives-> ART.218 (4): “The Council may address directives tot he negotiator and designate a special committee in consultation with which the negotiations must be conducted”. 3. Conclusion Council & Parliament (except for CFSP) The Council shall act by a qualified majority throughout the procedure. However, it shall act unanimously when the agreement covers a field for which unanimity is required for the adoption of a Union act as well as for association agreements and the agreements referred to in Article 212 with the States which are candidates for accession… ART. 218 (6) TFEU Except where agreements relate exclusively to the common foreign and security policy, the Council shall adopt the decision concluding the agreement: (a) after obtaining the consent of the European Parliament in the following cases: (i) association agreements; (ii) agreement on Union accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms; (iii) agreements establishing a specific institutional framework by organising cooperation procedures. (iv) agreements with important budgetary implications for the Union; (v) agreements covering fields to which either the ordinary legislative procedure applies, or the special legislative procedure where consent by the European Parliament is required. EXECUTIVE: When it comes to negotiation, the Commission is not entirely free. The role of the Parliament in the context of treaty making is basically non-existent when it comes to CFSP  common foreign and security policy. Executive agreements  there are no agreements that can be done autonomously by the Commission. – France v Commission (1994) competences. Member states insist to participate in their own name so as to remain visible on the international scene. THE INTERNAL MARKET Common markets cannot simply be opened, they must be established. For instance, the national markets of England, Germany or France were the result of two dialectical processes: internal unification and external demarcation. Historically, the classic instrument to regulate international trade is the customs barrier. Customs duties were not solely designed to protect the emerging national industries from foreign competition. They were also a formidable source of revenue for the modern State. In the 20th century, a second instrument of boundary control would gain particular prominence: quantitative restrictions  (complete or partial) are bans on imports into the national territory. Tariffs are a great source of income for the state that have the aim of protecting its products from the foreign competition. Classically, international law has allowed these markets. In the 19th century Adam Smith and David Ricardo introduce the idea of free trade. There was a switch from Free Trade to National Protectionism, especially after WWII. These neo-mercantilist devices ushered in a period of beggar thy neighbour policies, which have been - justly or unjustly - identified with the 1930 US Smoot- Hawley Tariff. League of Nations and after WWII  1947 GATT (General Agreement on Tariff Trade) The GATT makes a fundamental distinction between tariff barriers and non-tariff barriers with only the former being a legitimate instrument of protectionism. Secondly, within the class of non-tariff barriers, the GATT draws an important distinction. It here distinguishes between two types of national measure: internal measures and border measures. The average duty is close to 5%, a little below, meaning that world trade is not very expensive like it used to be. In the context of the EU, as regards international trade there is a degree of economic integration to follow. Spaak Report (1956)  Unification of diverse markets and a better decision of labour. To create a European market, the EEC Treaty had adopted a dual strategy: negative and positive integration. The Community was first tasked to free its future common market from national barriers to trade in goods, persons, services, and capital. This strategy of negative integration was complemented by a second strategy: positive integration. ART 28 TFEU  prohibition between MSs of customs duties on imports and exports, a common customs tariff in their relations with third countries. ART 30 TFEU  customs duties on exports and imports and charges having equivalent effect shall be prohibited between MSs. This prohibition shall also apply to customs duties of a fiscal nature. Statistical Levy  No Protectionist Effect 03/05  FREE MOVEMENT OF GOODS The free movement of goods is one of the four fundamental freedoms of the EU – together with services, capital and people – and a cornerstone of the single market. The logic behind the open market throughout the EU has always been to assist economic growth and competitiveness and therefore promote employment and prosperity. 1. CUSTOMS UNION All customs duties are illegal. 2. NON-DISCRIMINATION (direct and indirect) Furthermore, no MS shall impose on the products of other MSs any internal taxation of such a nature to afford indirect protection to other products.  PRINCIPLE OF NON-DISCRIMINATION WHEN IT COMES TO SIMILAR PRODUCTS Commission v United Kingdom  beer and wine – the Court of Justice concluded that it was a matter of discrimination. ART 110  Internal taxation – (similar goods and competing goods) BUT one of the limits is double taxation. ART 30  Border measures (customs duties and CEE) 3. REGULATORY BARRIERS TO TRADE AND QUANTITATIVE RESTRICTIONS Regulatory barriers are really regulating something, meaning that these are legal obstacles to trade that cannot be overcome by the payment of money. ART 34  quantitative restrictions on imports or exports and all measures having equivalent effect shall be prohibited between MSs. ART 36  the provisions of ART 34 and 35 shall not preclude prohibitions or restrictions, justified on grounds of public morality, public policy or public security. There are three views on ART 34: i. Only concerns border measures and here applies in an absolute way like ART 30. ii. Also concerns internal measures, but it is confined to discrimination, like ART 110. iii. Commission Directive 70/50, and the idea that Article 34 outlaws “distinctly applicable measures, that is measures that specific to imports but exceptionally also internal measures that discriminate. The Dassonville Formula  All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-[Union] trade is to be considered as measures having an effect equivalent to quantitative restrictions. Then  Cassis introduced the principle of mutual recognition and with it the possibility of reverse discrimination Strong link between the State and the Agriculture replicated at the Union level, where there is also a strong link between free movement of goods and intervention of states in the agriculture. The Union created the Common Market Organisation, where the production of each agricultural goods is decided and their price. European Court of Justice: [I]n a sector covered by a common organisation, a fortiori where that organisation is based on a common pricing system, Member States can no longer take action, through national provisions taken unilaterally, affecting the machinery of price formation at the production and marketing stages established under the common organisation. By the end of the 1980s, internal and external pressure on the CAP had increased to such an extent that reform seemed inevitable. A more comprehensive reform was subsequently suggested in the ‘Agenda 2000’. The Agenda 2000 proposals thereby structured the CAP into two ‘pillars’: income support and rural development. The Internal Market 1. The Free Movement of Goods I 2. The Free Movement of Goods II 3. The Free Movement of Persons Going beyond an internal market in goods, the EU Treaties envisage the free movement of persons. This constitutional choice was originally inspired by an economic rationale. For the second fundamental freedom had been created to assist people wishing to work in another Member State and was consequently confined to economically active persons. he Treaties thereby distinguished between two classes of economic migrants: ‘employed ’and ‘self-employed ’persons and the Treaty Title dealing with the movement of persons today still addresses ‘Workers ’and the ‘Right of Establishment ’in two separate chapters. With subsequent Treaty amendments, these two special chapters were nevertheless complemented by the ‘horizontal ’rules on Union citizenship… 1. Free movement of Workers ART. 45 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. 3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health… Key issue-> what is a worker? Originally it was the major cause of discord. The minimum qualification a worker should posses should be the ability to sustain him/her self. Levin, Case 53/81: Part-time work Since part-time employment, although it may provide an income lower than what is considered to be the minimum required for subsistence, constitutes for a large number of persons an effective means of improving their living conditions, the effectiveness of [Union] law would be impaired and the achievement of the objectives of the Treaty would be jeopardized if the enjoyment of rights conferred by the principle of freedom of movement for workers were reserved solely to persons engaged in full-time employment and earning, as a result, a wage at least equivalent to the guaranteed minimum wage in the sector under consideration … The income that you generate doesn't have to cover your living cost. Only need to be employed. Do you lose your rights as a worker once you stop working? NO Example: Lair, Case 39/86: Rights after having been a worker Although the wording of those provisions does not provide an express answer to that question, there is nevertheless a basis in [Union] law for the view that the rights guaranteed to migrant workers do not necessarily depend on the actual or continuing existence of an employment relationship … Persons who have previously pursued in the host Member State an effective and genuine activity as an employed person as defined by the Court but who are no longer employed are nevertheless considered to be workers under certain provisions of [Union] law … Post-workers are also covered by ART. 45 Antonissen, Case C-292/89: Job seekers The British government had argued that ‘according to the strict wording of Article [45] of the Treaty, [Union] nationals are given the right to move freely within the territory of the Member States for the purpose only of accepting offers of employment actually made. The Court unequivocally rejected this view. The enumeration within Article 45(3) was non-exhaustive, and included the right of job-seekers ‘to move freely within the territory of the other Member States and to stay there for the purposes of seeking employment’. Who is covered by these rights? Al