EU LAW (PPE 2nd Year) - Schuetze and Cherubini Complete, Dispense di Diritto Costituzionale Europeo

Scarica EU LAW (PPE 2nd Year) - Schuetze and Cherubini Complete e più Dispense in PDF di Diritto Costituzionale Europeo solo su Docsity! EUROPEAN UNION LAW Professors: Francesco Cherubini and Robert Schütze Book Reference: Schütze, R. (2021). European Union Law. Oxford University Press Academic Year: 2022-2023 (Second Semester) Notes by Donato Livio Arnese LUISS University, Rome by DLA First Part of the Course’s Contents Professor: Francesco Cherubini Book Reference: Schütze, R. (2021). European Union Law. Oxford University Press Book Chapters: 1.“Constitutional History”; 3.“Governmental Structure: Union Institutions I”; 4.“Governmental Structure: Union Institutions II”; 12.“Limiting Powers (EU Fundamental Rights)”; 5.“Nature - Direct Effect”; 6.“Nature - Primacy/Pre-emption”; 10.“Judicial Power - Centralized European Procedures”; 11.“Judicial Power - Decentralized National Procedures”. Additional Readings: Mayer, "Van Gend en Loos": The Foundations of a Community of Law - LUISS Learn Reading. This is a picture I took during my trip to Brussels in 2022. 2 by DLA The institutional balance within the EEC was different from the previous: instead of the supranational Commission it was the international Council (composed of representatives of the member states) which was the central decision maker, and it would follow traditional international law logic. There were legal bases allowing for qualified majority but the French government boycotted the Council and the result was the Luxembourg Compromise: it did not grant each MS a constitutional right to veto, but decision making in the council would have took place under the shadow of the veto. A step forward was taken by the Parliament when the Community chose to replace the financial contributions of MS with its own resources. With the Hague Summit in 1969 began the search for a Europe of the second generation: the aim was the promotion of economic and monetary union and led to the creation of the European Monetary System in 1979. Later, the possibility of political union was explored, and the European Political Cooperation was created as an international mechanism according to which MS decided to have their foreign ministers meeting regularly. A third development concerned the area of justice and home affairs and was attached to the TREVI mechanism: initially designed as an instrument to fight terrorism it then became a mechanism of coordination to combat organized crime. The Schengen agreement, aimed at establishing an area without border controls, with common rules on visas and police and judicial cooperation was part of it. Finally, a fourth development emerged with the birth of the European Council: after the global recession the Heads of State or Government started meeting regularly ‘till the Paris summit institutionalized these meetings. The first major treaty reform would only take place in 1986 through the Single European Act: its core lay in the idea of completing the internal market by 1992, to achieve this aim it expanded the Community’s competences by adding legal basis allowing for qualified majority, by creating a new law-making procedure named the cooperation procedure and by giving the assistance of another court to the Court of Justice. 5 by DLA From Maastricht to Nice: The Old European Union The European Council called for two intergovernmental conferences which would result in the Treaty on the European Union, Maastricht 1992. The European Council as well as all the European Communities were placed under a common legal roof: the European Union, the overall constitutional structure was then defined by the first article of the Treaty. The Treaty created a number of important innovations such as the introduction of a political status of citizenship of the Union, the expansion of the prerogatives of the European Parliament and the introduction of the co-decision procedure. The legal structure of the Maastricht Treaty led the Union to be identified with a Greek temple: 6 by DLA The ‘common provisions’ would form the roof of the temple, the three pillars of the Union were the European Communities, the Common Foreign and Security Policy and Justice and Home Affairs; the base of the temple was formed by the ‘final provisions’. The European Economic Community, being the first pillar, had enlarged competences: a supranational monetary policy was established and thereby created the European System of Central Banks and the European Central Bank, this was entitled to issue bank notes. The Common Foreign and Security Policy constituted the Union second pillar and maintained its international character as the dominant Union actors were the European Council and the Council, but it had established a number of specific instruments, such as the ‘common positions’ and the ‘joint actions’. Justice and Home Affairs was to be the third pillar, which expanded its competences so as to achieve the free movement of persons, it will thus incorporate and replace the TREVI mechanism acting in the areas of asylum, immigration, judicial cooperation and civil and criminal matters. The central reform of the 1997 Treaty of Amsterdam consists in the changes brought to the third pillar of Justice and Home Affairs: only the subject areas dealing with criminal law survived under the new third pillar, which became known as the Police and Judicial Cooperation in Criminal matters; the amputated part of the third pillar was inserted in the first one and, furthermore, the MS agreed to incorporate the Schengen agreement in the European Union. The main aim of the 2001 Treaty of Nice was to institutionally reform the European Union, but actually it was a limited reform: - the ‘Protocol on the Enlargement of the European Union’ contained provisions for the composition of the European Parliament, the Council and the Commission; - the EC Treaty and the ‘Protocol on the Statute of the European Court of Justice’ were also affected by some changes; and - a Charter of Fundamental Rights of the European Union was proclaimed. The MS, self-conscious of the limited achievements of the Nice Treaty, added to it a ‘Declaration on the Future of the Union’. 7 by DLA Additional Reading: Mayer, "Van Gend en Loos": The Foundations of a Community of Law The “Van Gend en Loos” Case (5 February 1963) has been described from Professor Francesco Cherubini as “The Bible” of the European Union Law. Van Gend en Loos was a firm that asked the judge to directly apply Article 30 TFEU1 (at the time, article 12 TEEC). This case asserted the primacy of EU Law and it is considered the first case where direct effect was applied. The Facts of the Case On 9 September 1960 (not even three years after the EEC Treaty came into force) the Dutch company Van Gend en Loos imported from Germany into the Netherlands a chemical product by the name of ureaformaldehyde, a substance used for making glue and ran into problems. The Dutch revenue authorities decided to charge an import duty of 8 percent of the value of the goods according to the Dutch Tariff Ordinance of 1 March 1960. Van Gend en Loos relied on a previous Tariff Ordinance of 1947, where the tariff had been just 3 percent, and filed a written objection with the Dutch Inspector of Customs and Excise. The company claimed that by increasing the import duty to 8 per cent the Government of the Netherlands had violated Article 12 of the EEC Treaty, which contained a “stand-still” clause concerning the increase of duties. The Inspector of Customs and Excise dismissed the objection. Van Gend en Loos then filed an appeal against this decision with the Dutch Tariff Commission. This body, which is actually an administrative tribunal, found that the case seemed to raise a problem relating to the interpretation of the EEC Treaty. 1. Does Article 12 of the EEC Treaty have direct application within the territory of a Member State, or, put differently, can nationals of such a State on the basis of the article in question, lay claim to individual rights which the courts must protect? 2. In the event of an affirmative reply, does the application of a charge of 8 per cent constitute a prohibited increase in the sense of Article 12 of the EEC Treaty or not? 1 “Customs duties on imports and exports and charges having equivalent effect shall be prohibited between Member States. This prohibition shall also apply to customs duties of a fiscal nature”. 10 by DLA Direct Applicability and Direct Effect The Van Gend en Loos case was the starting point for the ECJ to develop the principle that certain Community provisions are automatically part of the national legal order of the Member States (direct applicability) and that individuals may invoke these provisions in front of national courts and authorities (direct effect). In this case, the ECJ decided against the Advocate General and against the Member States that the article in question was directly applicable. To the ECJ, as long as the wording of the Treaty provision is “clear and unconditional” and “not qualified by any reservation on the part of States which would make its implementation conditional upon a legislative measure enacted under national law”, EEC law confers on individuals legal rights that arise not only when expressed by the Treaties but also by the reason of obligations which the Treaty imposes upon MS. Today, most primary laws are considered to have direct effect and directly applicable, and secondary law with Association Agreements too (BUT not the WTO laws). Conclusion Van Gend en Loos already contains numerous elements of what would become hallmarks of ECJ decisions in the ensuing years: - the ECJ understanding of the principle of direct effect/applicability; - the claim of a new legal order distinct from traditional public international law; and - the core role of the ECJ in shaping this new legal order. 11 by DLA Chapter 3: Governmental Structure: Union Institutions I Introduction The central provision on Union’s institutions is Article 13 TEU: “1.The Union shall have an institutional framework which shall aim to promote its values, advance its objectives, serve its interests, those of its citizens and those of the Member States, and ensure the consistency, effectiveness and continuity of its policies and actions. The Union's institutions shall be: - the European Parliament; - the European Council; - the Council; - the European Commission (hereinafter referred to as ‘the Commission’); - the Court of Justice of the European Union; - the European Central Bank; - the Court of Auditors.” The ‘Separation-of-Powers’ Principle and the European Union In Montesquieu’s “The spirit of the Law”, three powers were identified: - Legislative; - Executive in respect to things dependent on the law of nations; - Executive in regard to matters that depend on civil law. When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise. The monarch or senate should enact tyrannical laws and execute them in a tyrannical manner. Again, there is no liberty, if the judicial power is not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.” 12 by DLA Parliament is supported by a number of internal parliamentary organs: - the Bureau: this is a body formed by the President and Vice president; - the Conference of the Presidents: this consisting of the President and the Chairs of the Political Groups; and - Committees: they constitute the most important decentralized organs of the Parliament. Committees they are distinguished in: - Standing Committees: standing committees are permanent and are set up as thematically specialized bodies that concentrate on one area of parliamentary affairs. - Special Committees. Committees operate as miniature parliaments and thus shall reflect its composition, they have between 40 and 60 members, are headed by a Committee Chair and coordinated by Committee Coordinators, they shall examine question referred to them by the Parliament and vote by show of hands; the responsibility for reporting back to the plenary is the task of a rapporteur. Committees only prepare decisions, for the task of deciding belongs exclusively to the plenary. The plenary is indeed the formal decision-making organ of the Parliament, it meets for a week every month in Strasbourg and acts by a majority of votes cast and the Rules of Procedure shall determine a quorum (one third of MEP). What are the exceptions to the rule that Parliament decides by a majority of votes cast? Some Treaties require a majority of the component members while some others require a double qualified majority. Parliament will generally vote by show of hands. 15 by DLA Parliamentary powers are distinguished between: 1. Legislative powers: In the legislative procedure, the Parliament may informally propose new legislation but is not entitled to formally propose bills. Parliament principal legislative involvement starts after the Commission has submitted a proposal. - Ordinary Legislative Procedure: Co-decision of parliament and Council; - Special procedures cover various degrees of parliamentary participation: - Under consent procedure it must give its consent before the Council can adopt legislation; - Under the consultation procedure it merely needs to be consulted, exceptionally the parliament may become the dominant chamber. 2. Budgetary powers: Budgetary powers focus on expenditures, and NOT on income (which is fixed); 3. Supervisory powers: Supervisory power consists in debating, questioning and investigating. - Debate implies receiving general reports; - Question implies orally questioning the Commission, the Council and the European Council; - Investigating entitles it to set up temporary Committees of inquiry to investigate alleged contraventions or maladministration in the implementation of European law. European citizens have the right to ‘petition’ the parliament, petitions concern the role of an Ombudsman, which is a public advocate, an official who is charged with representing the interests of the public by investigating and addressing complaints of mal- administration or a violation of rights. 4. Elective powers: Elective power of the Parliament sees it as fundamental in the appointment of the Commission: it must elect the president of the Commission and confirm the Commission as a collective body. The Commission remains responsible to the Parliament which may vote on a motion of censure (such a motion requires a two-thirds majority of the votes cast, a successful vote on a motion of censure leads to the resignation of the Commission as a body). 16 by DLA The European Council With the 2007 Lisbon Treaty, the European Council has finally become a formal institution of the European Union and started a substantive development in which the European Council has become the political backbone of the European Union. The European Council shall meet twice every six months but can have additional meetings when the situation so requires. These regular meetings follow the seasons: there is a spring, summer, autumn, and winter meeting. They are held in Brussels. 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 has its own President, who will be an additional member. The President of the Commission shall also be a formal member, but neither him nor the president of the European Council enjoy a voting right. Decision Making in the European Council: 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 Article 15 (4) TEU: “Except where the Treaties provide otherwise, decisions of the European Council shall be taken by consensus.” The general rule for decisions of the European Council is unanimity of all MS. However, there are some instances within the Treaties in which the European Council may act by a qualified majority. President of the European Council: The permanent President (which originally was not permanent but rotating) is elected by the European Council, the period of office will be a term of two and half years. 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. The President of the European Council: - Shall chair it and drive forward its work; - 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; - Shall endeavor to facilitate cohesion and consensus within the European Council; 17 by DLA The Council has developed committees to assist it The Committee of Permanent Representatives is composed of representatives of the MS and became known as Coreper; The permanent Representative is the ambassador of a MS at the Union level. Coreper has two parts: - Coreper II, which represents the meeting of the ambassadors; - Coreper I, which represents the meetings of their deputies. Coreper II prepares the first four Council configurations. All items on the agenda for a Council meeting shall be examined in advance by Coreper unless the latter decides otherwise. In order to achieve this task Coreper has set up ‘working parties’ below it: - Where Coreper reaches an agreement, the point will be classified as an ‘A’ item that will be rubber stamped by the Council, where it fails to agree in advance a ‘B’ item will need to be discussed by the ministers in the Council. Coreper is not anyway entitled to take decisions itself, but it prepares and facilitates decision-making in the Council. There are many more committees that complement Coreper, such as: - The Political and Security Committee; - The Article 207 Committee (engaged in international negotiations between the EU and third countries); - The Economic and Finance Committee. To help the Council presidency within Common Foreign and Security Policy, the Treaty of Amsterdam added an assistant office: - The High Representative for the Common Foreign and Security Policy (CFSP). He/She shall conduct the Union CFSP and chair the Foreign Affairs Council; He/She is subordinate to the Council and shall ensure the implementation of the decisions adopted by the European Council and the Council of Ministers and make proposals for the development of that policy. 20 by DLA The Council must meet in Brussels to make decisions, the meetings are divided into two parts: - One dealing with legislative activities; and - One dealing with non- legislative activities. The Council must meet in public and the Commission will attend the meetings, a majority of the members of the Council are required to enable the Council to vote. Decision making in the Council will take place in two principal forms: - Majority Voting: is required in the Treaties for sensitive political matters; - Unanimous Voting: represents the constitutional norm. The Treaties instituted a system of weighted votes, MS possess a number of votes correlated with the size of their population according to degressive proportionality; However, the voting system represents an agreement as the four biggest MS are all given the same number of votes, both the biggest and the smaller states attacked this system and, therefore, decision making in the Council traditionally demands a triple majority: majority of the weighted votes must be cast by a majority of Member States representing a majority of the Union population: the 65% of the Union population requirement would mean that any three of the four biggest MS could block a Council decision. The Lisbon Treaty designed a simpler double majority and yet the MS had agreed on the Ioannina compromise, according to which the Council is under an obligation to continue deliberations where a fourth of the states or states representing a fifth of the Union population oppose a decision (countries representing at least 55% of the EU's population or at least 55% of the number of EU countries required to constitute a blocking minority can oppose the vote for an act by the Council by qualified majority in order to try to find a solution within a reasonable space of time). This mechanism is complemented by the recognition in the Treaties of the Luxembourg compromise, according to which a MS can unilaterally block a Union decision on what it deems to be its vital interest. 21 by DLA The Council was, traditionally, the core of the Union’s legislative function. Nowadays it only is a co-legislator and must exercise its function in public. Functions of the Council (Art. 16 TEU): - Share budgetary functions; - Limited role in policy-making related to specific policy choices that implement the general ones; - Significant coordinating functions within the Union. In addition to the functions mentioned by Art. 16 TEU, there are two additional functions: - The Council is still the dominant institution when it comes to international agreements; and - The Council can still act as the Union’s executive branch. newum 22 by DLA The Commission acts as a college and shall act by a majority of its members The Commission’s Rules of Procedures distinguish between: - Oral: requires decision by the College. The oral procedure stipulates a commission meeting which is private and should take place at least once a week, to save time during the meetings the Commission Agenda will typically be divided into A-items and B-items, the Commission is entitled to dispense with a physical meeting and decide by means of a written procedure, decisions are generally taken by tacit consensus but also majority vote is possible. - Written: requires decision by the College. According to the written procedure a draft text is circulated to all members and each commissioner is entitled to make known any reservation. - Empowerment: entitle the Commission to delegate power to individual officers or to the director-general. - Delegation Procedure: entitle the Commission to delegate power to individual officers or to the director-general. Agencies The Union has created European Agencies to assist the Commission, they are created by secondary union law and have primarily the function to assist the Commission, any agencies are simply information satellites. They are distinguished between: - Executive Agencies: are subordinate to the Commission, have a limited lifetime and consist in a Steering Committee and a Director. - Independent Agencies: will typically consist of a management Board composed of one representative for each MS and one representative of the Commission, they will be headed by an Executive Director who will be independent in the execution of his duties. 25 by DLA The Court of Justice of the European Union The Court constitutes the judicial branch of the Union; it is itself composed of various courts: - the Court of Justice; - the General Court; and - the Specialized Courts. From a functional perspective, given the nature of the Union, national courts are decentralized European courts even though there is no institutional bridge among them and the European Court. Originally the Court was composed of a single entity, with the Lisbon Treaty: the Court of First Instance was added which later became the General Court since it is no longer confined to the first instance; but has jurisdiction to hear and determine actions or proceedings brought against decisions of the specialized courts. The Union has, at present, only one specialized court: the ‘Civil Service Tribunal’. The Court of Justice shall consist of one judge from each MS, appointed by common accord of the governments of the MS and only after hearing of an independent advisory panel. Judges are not representatives of the MS and must be completely independent; their term of appointment is of six years. The Court as a formal institution decides as a collective body, which has its own president, however the Court is entitled to set up chambers. The Court will normally sit in chambers composed of three and five judges, but it can exceptionally sit in a Grand Chamber consisting of 15 judges and very exceptionally it can sit in full court. The General Court should also have one judge per MS and it also has its own President, it will generally sit in three or five judges’ chambers and will exceptionally sit as a grand chamber, full court or single judge. Its jurisdiction has always been smaller than that of the Court of Justice, Art. 256 TFEU distinguishes between three scenarios: - Firstly, the general Court will have jurisdiction to hear cases at first instance; - Secondly it will have jurisdiction to hear appeals against decisions of the specialized courts; and - Thirdly it may have jurisdiction for preliminary references. 26 by DLA Decisions of the General Court can be appealed or reviewed, if the appeal is well founded on the grounds of: - lack of competence; - breach of procedure; or - infringement of the law. The Court of Justice will act like a court of cassation or as a court of revision; furthermore the Court of Justice is entitled to review a judgment of the General Court where it acts in its own appellate capacities or where it gives preliminary rulings for a national court. The Court shall be assisted by Advocates General, their number is currently set at eleven, they are appointed as officers of the Court and their duty is to produce an opinion that is not legally binding to the Court. For the General Court, only in exceptional cases the judgment will be preceded by an opinion of the Advocate General. The Civil Service tribunal was, so far, the only specialized court of the Union; it consists of seven judges appointed for six years by the Council. It will normally sit in chambers of three judges but may also sit as a full chamber or as a chamber of five judges when the case is a hard one. It was called upon to adjudicate disputes between the European Union and its civil service, a jurisdiction that until 2005 was exercised by the General Court. Its decisions were subject to appeal on questions of law only to the General Court and, in exceptional cases, to review by the European Court of Justice. It was established in 2005. It was dissolved in 2016, despite the success in its mandate, in favor of doubling the size of the General Court. Court of Justice: Procedures The procedures before the Court of Justice consist of two parts: - A written part; and - An oral part. A case begins when it is brought before the Court a written application, the application will then be served on the defendant and thereafter the Court takes over the initiative and assigns the case to a chamber, while designating a reporting judge and an Advocate General. Thereafter it is decided whether a preparatory inquiry needs to be held and, if yes, the Advocate General will deliver its opinion. 27 by DLA Notes from Professor Cherubini’s classes (Chapters 3 and 4) Parliamentarians of the European Parliament: DO NOT REPRESENT MEMBER STATES, THEY REPRESENT CITIZENS To become a member of the parliament, you have to be a member/citizen of one of the member states. EU citizenship depends on national rules of citizenship. Members of the European Parliament are representatives of EU citizens, not of the states. According to the ECJ, members of the European Parliament cannot receive instructions from the member states, but are bound to represent the will of the people. Commission: The commission is the place in which the most radical kind of interest of the Union is pursued. Art 17/Art 18 TEU In case of approval of the motion of censure: the High Representative shall resign as a member of the commission, so he would not represent anymore the Commission, of which he was vice-president, but anyway he is still going to be the High Representative, because it is a role which is appointed by the European Council and they can take him away. This is probably a little bit of an obsession of the member states for procedures. Because the position of which the High Representative is in charge, so of the Common Foreign Security Policy, which is an Intergovernmental matter, not communitarian. In this case the High representative has a particular role because he is both at the same time. ART 246 TFEU What if there is a motion of censure? - If the whole commission is censured, the commission resigns, and they restart a new commission according to article 217. Because the Commission must resign as a whole body. - Instead, if one single commissioner resigns, is compulsory removed or dies, the vacancy can be filled with a commissioner of the same nationality, after new consultations with the EU parliament, according with the Council. 30 by DLA The Court of Justice of the European Union: ART. 253 TFEU specifies the requirements for the judges: - Qualification for being appointed to the highest judicial offices in the respective countries; - If there are Juris councils of recognised competence. 31 by DLA Chapter 12: Limiting Powers (EU Fundamental Rights) Introduction The protection of human rights is a central task of many modern judiciaries. Fundamental rights set substantive judicial limits to all governmental powers and processes within the Union: they challenge the validity of European Union law. Despite the absence of a bill of rights in the original Treaties, three sources of EU fundamental rights were subsequently developed: - The Unwritten Bill of Rights deriving from the constitutional tradition of the MS; - The European Convention on Human Rights; and - The Charter of Fundamental Rights of the EU. The Unwritten Bill of Rights: Human Rights as “General Principles” The Court’s view evolved with regard to the existence of implied European fundamental rights; the Union’s unwritten bill of rights would be inspired by the constitutional tradition common to the MS. One ingenious way to find an agreement between the various national constitutional traditions was to use international agreements of the MS and, first of all, the ECHR. Human rights express the fundamental values of a society, every society may wish to protect distinct values and to give them distinct levels of protection. According to Article 6 TEU, fundamental rights as guaranteed by the Convention shall constitute general principles of the Union’s law and provide an autonomous standard. Some rights are absolute rights, meaning that they cannot be limited. However, most fundamental rights are relative as they might be limited by public interest. Has the European legal order recognized limits to human rights? There are limitations on limitations of fundamental rights: According to the principle of proportionality, which states that the action of the EU must be limited to what is necessary to achieve the objectives of the Treaties; each restriction of a fundamental right must be proportionate in relation to the public interest pursued. 32 by DLA In its indirect review of acts of the supranational Union, the Convention Court would thus not apply its normal standard: where the Union protected human rights in an equivalent manner to that of the Convention, the European Court of Human Rights would operate in presumption that the States had not violated the Convention by transferring powers to the European Union. This presumption translates in a lower review standard for acts adopted by the EU; the lower standard represented a compromise between two extremes: - No control, as the Union was not a member; and - Full control even in situations in which the MS acted as mere agents of the Union. The present Strasbourg jurisprudence privileges the Union legal order in not subjecting it to the full external review by the European Court of Human Rights. Will the presumption that the Union complies with the ECHR thus disappear with accession? What seems certain is that accession will widen the scope of application of the European Convention to include direct Union action. For example, in situations where the Union institutions had acted directly upon individuals without any mediating MS measures, this Union act could not be reviewed. But this should definitely change once the Union accedes to the Convention. To clarify the status of the European Convention in the Union legal order, the Commission had suggested that an accession to the convention should be pursued, BUT under the original Treaties, the Union lacked the express power to conclude human rights treaties, the Commission thus proposed using the Union’s general competence. Since accession by the Union would have fundamental institutional implications, in the view of the Court only a subsequent amendment of the Treaty could provide the Union with the power of accession. This power has now been granted by the Lisbon amendment: membership of the ECHR is now open to the European Union; However, accession will principally depend on the MS of the Union. 35 by DLA The Incorporation Doctrine: EU Fundamental Rights and National Law Will the fundamental rights of the European Union also bind the MS? The European legal order has accepted that EU fundamental rights may (in certain circumstances) directly apply to the MS. National Court may thus respect national human rights, and yet violate the higher European standard → the Court has invented an ‘incorporation doctrine’ for general principles of the Union legal order. This incorporation doctrine is, however, ‘selective’ in that it only applies in two situations: - The first situation concerns the implementation of European law; - The second situation concerns derogations (exemptions) from European law. The Court expressly confirmed that EU human rights bind national authorities when implementing European law. Incorporation has here been justified on the ground that the MS functionally act as the Union’s decentralized executive branch. The Court has also come to accept a second situation in which human rights are incorporated, this is the case when MS derogate from European law (derogate: do not follow). While it is clear that a national law must first fall within the scope of European law, the relationship between the derogation rationale and the wider scope rationale has never been conclusively resolved. Various meanings here compete with each other: first, the Court may identify the scope of European law with the scope of existing European legislation, secondly, the formulation could refer to the Union’s legislative competences, finally, the Court might wish to include all situations that fall within the scope of the Treaties. 36 by DLA Notes from Professor Cherubini’s classes (Chapter 12) Values and Principles of the European Union The aims of the EU are listed in ART. 3 TEU: - Establish internal market; - Combat social exclusion and discrimination; - Economic and Monetary union; - Protection of its citizens through external action; - Promote values and interests. The values are listed in ART. 2 TEU2: - Dignity; - Freedom; - Democracy; - Equality; - Rule of law; - Tolerance; - Justice; - Solidarity The EU is an international organization, hence it cannot dispose of a full principle of democracy (because the Masters of the Treaties are the MS). Human Rights The starting point for human rights is a judgment in 1959 given by the European Court of Justice: The Stork Case. Community legislation was attacked on the grounds of breaching German fundamental rights. Responding to this issue the Court had two ways to react: 2 “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail”. 37 by DLA The direct effect test was therefore informed by three criteria: - First, a provision had to be clear; - Second, it had to be unconditional in the sense of being an automatic prohibition; and - Third, this prohibition would need to be absolute. To put it simply, in light of the Court’s developments, a provision has direct effect when it is capable of being applicable by a national court, thus direct effect simply means that a norm can be invoked and applied in a court. Where a Treaty provision is directly effective, an individual can invoke European law in a national court, normally this will be against the State and this is called ‘vertical’ effect. The legal effect of a norm between private parties is called the ‘horizontal’ effect. The Court, in Van Gend en Loos and Familiapress v. Bauer, confirmed that Treaty provisions, albeit addressed to MS, might cover private actions. Direct Union Law: Regulations and Decisions When the EU was created, the Treaties envisaged two instruments that were a priori directly applicable: Regulations and Decisions. A Regulation would be an act of direct and general application in all MS. A Decision was originally seen as the executive instrument of the union: it would directly apply to those to whom it was addressed. Regulations Art. 288 TFEU: “A regulation shall have general application. It shall be binding in its entirety and directly applicable in all MS”. Regulations were designed to be an instrument of material legislation: their general application was originally meant to distinguish them from the specific application of decisions. The crucial characteristic of a regulation is thus the openness of the group to whom it applies. Not all provisions of regulations must be general in Character: some provisions may indeed constitute individual decisions and/or, while a regulation is normatively valid in all MS, its concrete application could be confined to a limited number of states. 40 by DLA Would direct applicability of regulations imply their direct effect? No. - Direct Applicability: refers to the normative validity of regulations within the national legal order; - Direct Effect: refers to the ability of a norm to execute itself. Regulations often explicitly call for the adoption of implementing measures, even if there is no express provision MS are under a general duty to implement non-directly effective provisions within regulations. Decisions Article 288 TFEU: “A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them”. Like a regulation, a decision shall be directly applicable and binding in its entirety. A decision was originally not designed to be generally applicable yet, with time, European Constitutional practice developed non-addressed decisions. Decisions that mention an addressee shall only be binding on that person. Depending on whether the addresses are private individuals or Member States, the law distinguishes between: - Individual Decisions: these are designed to execute a Union norm by applying it to an individual situation, but they may still have horizontal effects on other parties; - State-Addressed Decisions: are binding only on MS but still could create rights for private citizens: the Court insisted that the direct effect of a provision depended on the nature, background and wording of the provision. Finally, non-addressed decisions have been officialized by the Lisbon Treaty and have become a widespread constitutional phenomenon. 41 by DLA Indirect Union Law: Directives Article 288 TFEU: “A Directive shall be binding upon each MS to which it is addressed, but shall leave to the national authorities the choice of form and methods”. Directives appear therefore to be binding on states and to lack general application: their general application could indeed only be achieved indirectly via national legislation. The Court confirms that directives could have direct effects and thus entitle individuals to have their European rights applied into national courts. The direct effect test for directives was proven in Van Duyn v. Home Office; here the Court emphasized the distinction between direct applicability and direct effect and sustained that a Member State that fails to implement its European obligations is stopped from invoking that failure as a defense and individuals are consequently entitled to rely on the directives as against the State. Temporarily, the direct effect of directives could only arise after the failure of the state to implement the directive had occurred (implementation period granted to each MS). This normative limitation came to be known as the no-horizontal direct effect rule: the situation just mentioned is one of vertical effect; the Court found that directives could not have horizontal direct effects. This is grounded in four arguments: - First, a directive is binding in relation to MS to which it is addressed; - Second, the direct effect for directives exists to prevent a State from taking advantage of its own failures; - Third, if horizontal direct effect was given to directives the distinction between directives and regulations would disappear; and - Fourth, since directives were not originally published, they must not impose obligations to those to whom they are not addressed. 42 by DLA Chapter 6: Nature - Primacy/Pre-emption Introduction Since European law can have direct effect, it might come into conflict with national law in a specific situation. In Europe’s constitutionalism the relationship between European and national law has been described by: - The Principle of Preemption: The problem of Pre-emption consists in determining whether there is a conflict between national measures and the rule of European law. - The Principle of Supremacy: The problem of supremacy concerns the manner in which such a conflict will be resolved. Related to Supremacy, there are two perspectives: - The European perspective: according to which all Union law prevails over all national law; and - The national perspective: according to which the supremacy of European law is relative: some national law is considered to be beyond the supremacy of European law. The European Perspective: Absolute Supremacy Absolute Supremacy is the simplest supremacy format: all law from one legal order is superior to all law from the other, the Union prefers this absolute principle however, the supremacy of European law will not affect the validity of national norms. Within dualist states, the status of European law is seen as depending on the national act transposing the European Treaties; BUT the supremacy of European law may be threatened even in monist states for the supremacy of European law can here find a limit in the state’s constitutional structures. In Costa v. ENEL the Court went against the Italian dualist tradition’s answer and defined that European law would reign supreme over national law, since its executive force must not vary from one state to another: the validity of European laws (both primary and secondary) could not be affected even by the most fundamental norms within states. While the Union doctrine of supremacy had quickly emerged with regard to national legislation, still remained a doubt related to international agreements. 45 by DLA Article 351 TFEU codified the supremacy of prior international agreements of the MS over conflicting European law. BUT the Court clarified that there existed internal limits to the provision: Article 351 TFEU would only allow MS to implement their obligations towards third states. With regard to subsequent agreements, the Court has unconditionally upheld the supremacy of European law over international agreements concluded by the MS after 1958. The European Court, in the Simmenthal II Case, stated that national courts are under a direct obligation to give immediate effect to European law: where nationals' measures conflict with European law, the supremacy of European law would not render them void, but only inapplicable. The executive force of European law thus generally leaves the normative validity of national law intact; national courts are not obliged to break national law, they must only not apply it when a conflict arises. The National Perspective: Relative Supremacy The European Union is a federal union of states, each federal union is characterized by a political dualism in which each citizen is a member of two political bodies. Sometimes the national view on a matter may not correspond to the European view on the same matter. This is the case of Supremacy. The extreme version of the national view can be found in the British European Union Act, while a milder national perspective accepts the supremacy of European law over national legislation but lets it be still relative since it is granted and limited by national constitutional law. This fight on supremacy has traditionally been expressed in two contests: - Human Rights: The theme of human rights has been fought mainly by the German Court, this became known as the ‘so-long’ jurisprudence as the German Court stated that: “so long as the European order had not developed an adequate standard of fundamental rights, the German Constitutional Court would disapply European law that conflicted with fundamental rights guaranteed in the German legal order”. The Union legal order indeed subsequently developed extensive human rights, and the dispute was significantly softened as the German Court promised not to question the supremacy of European law ‘so long’ as the latter guaranteed similar fundamental rights to those recognized by the German Constitution. 46 by DLA - Ultra Vires Control: - It was, again, the German Court to set the tone for the debate on competences: it found that the Union ought not to be able to extend its own competences and thus threatened to disapply European law that it considered to have adopted ultra vires. In Honeywell the German Court confirmed its relative supremacy doctrine however, the Court accepted a presumption that the Union would generally act intra vires, and only for clear and exceptional violations the German Court would challenge the supremacy of European law. 47 by DLA Chapter 10: Judicial Power - Centralized European Procedures Annulment Powers: Judicial Review The most powerful function of a Court is the power to un-make law, the competence and procedure for judicial review is set out in Article 263 TFEU: where an action for judicial review is well founded, the Court of Justice shall declare the acts concerned to be void. The Union may even be subject to compensation for damage caused by the illegal act. Article 263 TFEU is composed by four constituent parts: - Paragraph 1 concerns whether the Court has the power to review particular types of Union acts; It also determines that the Court is entitled to review legislative acts, it can also review unilateral acts of all Union institutions and bodies, but it cannot review acts of the MS. - Paragraph 2 tells why there can be judicial review; - Paragraphs 3 and 4 concern the question of who may ask for judicial review; and - Paragraph 6 tells us when an application for review must be made (within two months). The article doesn’t tell us which articles can be reviewed, it tells instead which cannot: There cannot be judicial review for recommendation and opinions, for acts of the parliament, of the European Council and of other Union bodies not intended to produce legal effect with third parties. Art. 263 TFEU limits judicial review to four legitimate grounds: - Lack of competence (any action beyond the powers conferred to the Union by the Treaties); - Infringement of procedural requirements (such as leaving out an institution that was to be invoked or wrong voting arrangement); - Infringement of the Treaties (infringement of the principles that for the Union are fundamental, such as the principle of proportionality); and - Misuse of Powers (pursuing a different objective from that underpinning the legal competence). 50 by DLA In particular, the proportionality principle has been defined as being the most far-reaching ground for review; in the past the Union developed a proportionality test which analyzes: - Suitability: implies that a measure is suitable for reaching a given objective; - Necessity: means that the act adopted represents the less restrictive mean to achieve a given objective; - Proportionality: concerns the interference with fundamental rights and an excessive effect on the applicants’ interests. The legality of a discretionary Union act will thus only be affected if the measure is manifestly inappropriate. The Treaties distinguish between three types of applicants before the Court: - Privileged Applicants such as the MS, the Parliament, the Council and the Commission (which can always bring an action); - Semi-Privileged Applicants such as the Court of Auditors, the ECB and the Committee of Regions (they might start proceedings for the purpose of protecting their prerogatives); and - Natural or Legal Persons (they must demonstrate that the Union act affects them specifically). The Rome formulation distinguishes between three types of decisions: - Decisions addressed to the applicant; - Decisions addressed to another person; and - Decisions in the form of a regulation → this third decision was put in the wrong form and judicial review was desirable to recognize here an abuse of power Article 230 TFEU was rewritten and private parties could thus challenge a single provision within any legal act. But what was the meaning of direct and individual concern? Pluming Case gave birth to the Pluming test according to which, a private applicant must show that the effects of an act are peculiar to them: the applicant must be singled out as if they were specifically addressed. 51 by DLA The Lisbon formulation amends the Rome formulation and states that: - First, decisions addressed to the applicant can automatically be challenged; - Second, with regard to regulatory acts a private party must prove its direct concern; - Third, for all the other acts the applicant must continue to show direct and individual concern. But what are regulatory acts? The Court seemed to favor the vision according to which regulatory acts are non-legislative general acts. Indirect review can firstly be found in Art. 277 TFEU; an applicant can invoke the illegality of a Union act of general application for a different action under Art. 263 TFEU, the primary object of the review must therefore be a different act. The second form of indirect review of European law may take place under the preliminary reference procedure: individuals can challenge the validity of Union acts in national courts, indirect challenges can be brought against any Union act, on any grounds, by anyone at any time. Remedial Powers: Liability Actions European Treaties envisage an action for damages under Article 340 TFEU, it distinguishes between: - Contractual Liability: governed by national law; and - Non-Contractual Liability: governed by European law. A liability action had to be proceeded by a successful annulment action, this dramatically changed in the Lutticke Case: the proceedings can now be brought against a Union act which has caused damage, the Court clarified that the Union should be represented by the institution or institutions against which the matter giving rise to liability is alleged. Liability action can be brought within a five-year period. The Court distinguished between: Administrative acts: subject to a relatively low liability threshold; Legislative acts: subject to the so-called Schöppenstedt formula: this made Union liability for legislative acts dependent on the breach of a superior rule of Union law which aimed to grant rights to individuals, and the breach of the rule would have to be sufficiently serious. 52 by DLA What is the nature of preliminary rulings? They are not appeals, they are discretionary acts of a national court asking for interpretative help, the decision therefore lies entirely within the national court and, once the Court has given a preliminary ruling, this will be binding. Despite being ‘binding’, preliminary ruling is not a decision. A preliminary ruling is a legal precedent that generally binds all national courts → its judgements do not create new legal rules but only clarify old ones. 55 by DLA Chapter 11: Judicial Power - Decentralized National Procedures Introduction National courts are the principal judicial enforcers of European law, each national court must be able to apply European law and to disapply national law when it conflicts. The European system is based on a philosophy of cooperative federalism, the relationship between the Court and national courts is based on voluntary cooperation. The principle of ‘national procedural autonomy’ essentially means that the Union ‘piggybacks’ on the national judicial systems → European rights but national remedies. The core duty governing the decentralized enforcement of European law is the duty of ‘sincere cooperation’, from which the Court has derived two additional principles: - The ‘principle of equivalence’: the procedural conditions governing actions at law intended to ensure the protection of the rights which citizens have derived from the direct effect of [European] law cannot be less favorable than those relating to similar actions of a domestic nature; - The ‘principle of effectiveness’: national rules need to make it possible in practice to exercise the rights which the national courts are obliged to protect. The Consistent Interpretation Principle The Court has created a general duty on national courts to interpret national law as far as possible in light of all European law, this is the duty of consistent interpretation and applies regardless of whether the provisions in question were applied before or after the European act. However, where national law has been implemented, national courts must operate under the presumption that the MS had the intention of fulfilling its obligation. The Court has permitted national courts to limit themselves to the application of interpretative methods recognized by national law, in fulfilling their mandate as union courts, national courts are therefore not required to stretch the medium of national law beyond the breaking point, they are only required to interpret the text in light of European law. National courts are the principal judicial enforcers of European law, each national court must be able to apply European law and to disapply national law when it conflicts. The European system is based on a philosophy of cooperative federalism, the relationship between the Court and national courts is based on voluntary cooperation. 56 by DLA Simmenthal, Case 106/77: The European Court, in the Simmenthal II case, stated that national courts are under a direct obligation to give immediate effect to European law: where nationals measures conflict with European law, the supremacy of European law would not render them void, but only inapplicable. The executive force of European law thus generally leaves the normative validity of national law intact; national courts are not obliged to break national law, they must only not apply it when a conflict arises. Rewe-Zentralfinanz , Case 33/76: ‘Accordingly, in the absence of (European) rules on this subject, it is for the domestic legal system of each Member State to designate the courts having jurisdiction and to determine the procedural conditions governing actions at law intended to ensure the protection of the rights which citizens have from the direct effect of (European) law, it being understood that such conditions cannot be less favorable than those relating to similar actions of a domestic nature”. → The principle of ‘national procedural autonomy’ essentially means that the Union ‘piggybacks’ on the national judicial systems → European rights but national remedies. The core duty governing the decentralized enforcement of European law is the duty of ‘sincere cooperation’. Edis v Ministero delle Finanze, Case C-231/96, [1998] ECR 4951: “Observance of the principle of equivalence implies, for its part, that the procedural rule at issue applies without distinction to actions alleging infringements of [Union] law and to those alleging infringements of national law, with respect to the same kind of charges or dues. That principle cannot, however, be interpreted as obliging a Member State to extend its most favorable rules governing recovery under national law to all actions for repayment of charges or dues levied in breach of [Union] law.” Factortame: “[A]ny provision of a national legal system and any legislative, administrative or judicial practice which might impair the effectiveness of [Union] law by withholding from the national court having jurisdiction to apply such law the power to do everything necessary at the moment of its application to set aside national legislative provisions which might prevent, even temporarily, [Union] rules from having full force and effect are incompatible with those requirements, which are the very essence of [Union] law. It must be added that the full effectiveness of [Union] law would be just as much impaired if a rule of national law could prevent a court seized of a dispute governed by [Union] law...” 57 by DLA Notes from Professor Cherubini’s classes (Chapters 10 and 11) Infringement Procedure: Article 258 TFEU (ex Article 226 TEC): “If the Commission considers that a Member State has failed to fulfill 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.” This case goes in front of the Court of Justice, directly. It is a procedure initiated usually from the Commission, in some rare cases from member states or other institutions. It is a procedure in which an EU institution brings in front of the court a member state for violation of EU Law, in this case are the member states that have infringed EU law, or there is the suspect that they have breached EU law. Letter of formal notice: The commission wants to know what the position of the member state is, so what path they are following. The commission at this stage is not sure that the member state violated EU Law. Since the Commission is not sure if the state violates it or is going to violate it, in this case, they start negotiation with the state, to understand their position, it could also be that they breach EU law on purpose. Reasoned Opinion: In this case instead the Commission is sure that the member state violated EU Law. In this case the state is summoned and is given a length of time in which the measure must be implemented, so the state didn’t implement well EU law (or didn’t at all) and the Commission offers the chance, or better imposes the time frame in which the state should act, a sort of negotiation, because the commission is sure at this point, and gives a term of time by which the measure needs to be implemented. The Commission can have a lot of discerptions in deciding whether they want to bring the case before the ECJ. They might decide that right after the violation they are going to bring the state in front of the court. Or maybe they wait some time, in that case maybe they would just freeze the situation. 60 by DLA The consequences of this are very different in practice, but it is a sort of space among them. If a member state wants to bring a case in front of the court against another member state, they would have to wait for a reasoned opinion from the Commission, so the court before to sentence a state for infringement of EU law, they would need an opinion from the Commission, but in some cases there would be a clear political meaning behind such act. In this the commission has 3 months to give a reasoned opinion, in which if nothing happens, the case goes automatically in front of the ECJ. What if the ECJ sentences that the state did breach EU LAW? Lump Sum: It is an amount that counts the days. Penalty: An amount that is due because of the original violation. If the violation is very specific, for example in the case of the implementation of the directive, which is specific for a member state, and the member state should do the measure of implementation, in this case they would go directly in front of the court. Action for Annulment Depending on the case the question might apply in front of the General Court or to the Court of Justice. - Institutional complains go in front the Court of Justice; - Member states complains go in front of the Court of Justice (only some cases go in front of the General Court); - When the Commission is included, the decision goes in front of the Court of Justice; - The General Court takes the individual complaints (the judgments from the general Court can go in appeal to the Court of Justice). ART 263 TFEU The acts of the European Union go in front of the Court of Justice. The court cannot challenge a simplified agreement of the European Council. You cannot challenge acts that have no effects, because only acts that are legally binding effects can be annulled, only the secondary acts that have an effect. Instead, the primary laws, so the treaties, cannot be challenged, because the EU institutions have to respect, not challenge it, the EU institutions are established by the treaties. 61 by DLA General grounds: - Infringement of the treaties. Specific Grounds: - Lack of competences: When an authority or institution is not acting within its competences. For the principle of conferral, you violated the core of your existence, as far as the member state give power it can work, but since you did something which you had no legal basis to do, you should not have done it, the conferral it is strictly on the purposes on which it is given. - Infringement of an essential procedural requirement: It can be prosecuted when EU institutions don’t follow a procedural step indicated in the treaties, because an act comes from the power in the treaties. The court can prosecute ex officio. In the case of such a violation because it is one of the most serious violations. - Misuse of power. 62 by DLA The Union embraced the constitutional technique of teleological interpretation for the first time in the controversy surrounding the first Working Time Directive: Article 153 TFEU (former wording): The Union is entitled to “encourage improvements, especially in the working environment, as regards the health and safety of workers”; the UK strongly contested this teleological reading, BUT the Court backed up the Union legislator, his teleological reasoning held as follows: “There is nothing in the wording of Article [153] to indicate that the concepts of "working environment", "safety" and "health" as used in that provision should, in the absence of other indications, be interpreted restrictively, and not as embracing all factors, physical or otherwise, capable of affecting the health and safety of the worker in his working environment, including in particular certain aspects of the organization of working time. The Court generally accepts the teleological interpretations and, more than that, it itself interprets Union legislation in a teleological manner. A classic case in this context is Casagrande: the Union had adopted legislation to facilitate the free movements of persons in the internal market, it contained a provision related to the rights of children of being admitted to a State educational courses under the same condition of the nationals of the host state; the Court held that the article “refers not only to rules relating to admission, but also to general measures intended to facilitate educational attendance” → this represents a teleological interpretation which allows the maximization the useful effect behind the Union Law. The general competences of the Union The Union’s legislator enjoys two general competences: - Article 114 TFEU: Harmonisation Competences; - Article 352 TFEU: Residual Competences. 65 by DLA The Harmonisation Competences: The EU is entitled to adopt measures for the approximation of national laws “which have as their object the establishment and functioning of the internal market” → Three arguments opposed the constitutionality of this law: 1. It could theoretically not be used to create new European rights as it should only harmonize existing national rights; 2. It should theoretically further the creation of a single European market but supplementary certificates prolonged the compartmentalisation of the market; 3. Two MS had legislation concerning a supplementary certificate → the Court concentrated on the question as to whether Article 114 required the pre-existence of diverse national laws this was not the case since in Spain v Council, Case 350/92 it held that EU law aimed to prevent the heterogeneous development of national laws leading to further disparities which would be likely to create obstacles to the free movement of medicinal products within the Union. The existence of constitutional limits appeared in Germany v. Parliament and Council (Tobacco advertising): European law banned the sponsorship and advertising of tobacco products, Germany argued that the Harmonising principle could only be used to promote the internal market and this was not the case. The Court surprisingly accepted the argument and annulled a European law on the basis that it went behind the Union’s Harmonisation power. The Court thus insists on three constitutional limits of the harmonization power: 1. An EU law must harmonize national laws; 2. A simple disparity in national law will not be enough to trigger the Harmonisation competences; 3. Union legislation must actually contribute to the elimination of obstacles to free movements or distortions of competition. 66 by DLA Residual Competences: Art. 352 TFEU states that “If action by the Union should prove necessary, within the framework of the policies defined in the Treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament, shall adopt the appropriate measures.” The competence may be used to adopt executive as well as legislative acts, it can be used in a policy cycle title on which the Union is already given a specific competence or to develop a policy area that has no specific title within the Treaties. Are there conceptual limits to Article 352? The provision expressly establishes two textual limitations: 1. Measures based on this Article shall not entail harmonization of the MS’ laws or regulations in cases where the Treaties exclude such harmonization; 2. It cannot serve as a basis for attaining objectives pertaining to the common foreign and security policy. In addition to these two, the Court recognized a third limitation: 3. Article 352 TFEU can thus not be used to effect qualitative leaps that constitute big changes to the constitutional identity of the EU. This was confirmed in Opinion 2/94 ECHR Accession: Article (352) is designed to fill the gap where no specific provision of the Treaty confer on the [Union] institutions express or implied powers to act, if such powers appear nonetheless to be necessary to enable the [Union] to carry out its functions with a view to attaining one of the objectives laid down by the Treaty. (...) Accession to the Convention would, however, entail a substantial change in the present [Union] system for the protection of human rights in that it would entail the entry of the [Union] into a distinct international institutional system as well as the integration of all the provisions of the Convention into the [Union] legal order. The Court thus held that the accession of the Union to the ECHR constituted an amendment with fundamental constitutional implications, and not a small informal one. Despite these conceptual limits, the Article’s only real bound seems to lie in the political safeguard of the unanimous voting of the Council (but some MS have established prior parliamentary authorization mechanisms for Article 352). 67 by DLA Two views are possible: 1. According to a first view, Article 193 TFEU will not constitutionally prevent the Union legislator from adopting specific legislative acts that totally preempt all matters within their scope. This first view therefore only deposits a strong presumption against field preemption codified in Article 193; while the Union legislator faces no absolute constitutional limitation to exhaustively harmonize a specific environmental issue; 2. By contrast, a second view argues that Article 193 TFEU refers to every single piece of European legislation, but the legislator will never be able to occupy a field, thus each Union act must thus leave a degree of legislative space to the national legislators. Article 193 would then always entitle national legislators to complement the common European standard. Coordinating competences – Article 5 TFEU The Member States shall coordinate their economic, employment and social policies within arrangements as determined by this Treaty, which the Union shall have competence to provide. The constitutional character of coordinating competences remains largely undefined, we may solely deduce that the EU has competence to provide arrangements for the MS to exercise their competences in a coordinating manner; the Union coordination effort may include the adoption of guidelines and initiatives to ensure coordination. Complementary competences – Article 6 TFEU In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas. Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas shall not entail harmonization of Member States’ laws or regulations. Article 6 lists seven areas: - Protection and improvement of human health; - Industry; - Culture; - Tourism; 70 by DLA - Education, vocational training, youth and sport; - Civil protection; - Administrative cooperation. Example of public health: Article 168(1) TFEU and Article 168(2) TFEU: “Union action, which shall complement national policies, shall be directed towards improving public health, preventing physical and mental illness and diseases, and obviating sources of danger to physical and mental health. (...) The Union shall encourage cooperation between the Member States in the areas referred to in this Article and, if necessary, lend support to their action. It shall in particular encourage cooperation between the Member States to improve the complementarity of their health services in cross-border areas.” The contours of this competence type are largely unexplored by jurisprudence. However, after the Lisbon reform, it appears to be a defining characteristic of complementary competences that they “do not entail harmonization of Member States’ laws or regulations”. The formulation suggests the Union’s intent to guarantee legislative space to the Member States. Legislative Procedures: Ordinary and Special The Treaties distinguish between an ordinary and a special legislative procedure. Article 289 TFEU states that: 1. The ordinary legislative procedure shall consist in the joint adoption by the European Parliament and the Council of a regulation, directive or decision on a proposal from the Commission. This procedure is defined in Article 294. 2. In the specific cases provided by the Treaties... shall constitute a special legislative procedure. 3. Legal acts adopted by legislative procedure shall constitute legislative acts. 71 by DLA According to the ordinary legislative procedure, the Parliament and the Council act as co-legislators with symmetric procedural rights, while, according to special legislative procedures, the institutional equality of the Parliament with the Council is abandoned. The TFEU recognizes two variants: The Ordinary Legislative Procedure Constitutional Text: Formal Procedure Defines five stages and two additional stages: 1. Proposal Stage: the Commission enjoys the exclusive right to submit a legislature proposal; 2. First Reading: the proposal goes to the European Parliament which will act by a majority of its votes cast, it can reject, approve or amend the proposal. The bill then moves to the Council which will act by a qualified majority and might agree (bill is adopted) or disagree and provide its position to the Parliament. 3. Second Reading: the amended bill lies for the second time in Parliament which may positively approve the Council’s position, may reject it or may propose amendments to the Council’s position. In the last case, the bill goes back to the Council which might adopt all of Parliament’s amendments (act is adopted) or might not approve it and thus the bill enters into the conciliation stage. 4. Conciliation Stage: The Union legal order delegates the power to draft a joint text to a committee composed of members representing the Council and members representing the Parliament which co-decides by a qualified majority; where the committee does not adopt a joint text, the bill has failed. 72 by DLA The definition thus clarifies that subsidiarity is only to apply within the sphere of Union’s non-exclusive powers and builds on two tests: 1. The national sufficiency test: the Union only acts where the objectives of the proposed action could not be sufficiently achieved by the MS; and 2. The comparative efficiency test: the Union should not act unless it can better achieve the objectives of the proposed action. Procedural standard: Subsidiarity as a Political Safeguard of Federalism The Protocol aims at establishing a system of monitoring to the application of the principle: each Union institution is called upon to ensure consistency with the principle and, in particular, it must forward draft legislatures to the national parliaments. Lisbon Protocol – Article 6 states that any national Parliament or any chamber of a national Parliament may, within eight weeks from the date of transmission of a draft legislative act, in the official languages of the Union, send to the Presidents of the European Parliament, the Council and the Commission a reasoned opinion stating why it considers that the draft in question does not comply with the principle of subsidiarity. It will be the duty of each national Parliament or each chamber of a national Parliament to consult, where appropriate, regional parliaments with legislative powers. Lisbon Protocol – Article 7 states that each national Parliament shall have two votes, shared out on the basis of the national Parliamentary system. In the case of a bicameral Parliamentary system, each of the two chambers shall have one vote. Where reasoned opinions on a draft legislative act’s non-compliance with the principle of subsidiarity represents at least one third of all the votes allocated to the national Parliaments in accordance with the second subparagraph of paragraph 1, the draft must be reviewed: this is called the yellow card mechanism and is strengthened in relation to proposals under the ordinary legislative procedure, albeit here only a majority of the votes allocated to the national Parliament will trigger it (orange card mechanism), where one of the chambers of the Union legislator finds that the proposal violates the principle of subsidiarity, the proposal is rejected. First application: Monti II Regulation → Commission's Proposal for a Council regulation on the exercise of the right to take collective action within the context of the freedom of establishment and the freedom to provide services. 75 by DLA Substantive Standard: Subsidiarity as a Judicial Safeguard of federalism Few judgements address the Principle of subsidiarity, in United Kingdom v Council (Working Time), Case C-84/94, the United Kingdom claimed ‘that the [Union] legislature neither fully considered nor adequately demonstrated whether there were transnational aspects which could not be satisfactorily regulated by national measures, whether such measures would conflict with the requirements of the [Treaties] or significantly damage the interests of Member States or, finally, whether action at [European] level would provide clear benefits compared with action at national level’. The Court offered an interpretation of subsidiarity that has structured the judicial vision of the principle ever since: it held that, once the Council has found that it is necessary to improve the existing level of protection as regards the health and safety of workers and to harmonize the conditions in this area while maintaining the improvements made, achievement of that objective through the imposition of minimum requirements necessarily presupposes Community-wide action, which otherwise, as in this case, leaves the enactment of the detailed implementing provisions required largely to the Member States. Judicial review of the exercise of that discretion must therefore be limited to examining whether it has been vitiated by manifest error or misuse of powers, or whether the institution concerned has manifestly exceeded the limits of its discretion. One exception is represented by Article 276 TFEU: “The European Union shall have no jurisdiction to review the validity or proportionality of operations carried out by the police or other law-enforcement services of a Member State or the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security”. Fedesa, Case 331/88: “[T]he principle of proportionality is one of the general principles of [Union] law ... When there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued”. 76 by DLA Notes from Professor Schütze’s classes (Chapter 7) “Ordinary” Legislative Procedure: Article 294 TFEU: 77 by DLA Chapter 9: Executive Powers Introduction The executive power is identified with the task of executing laws, and thus with the power to “govern” that is: to lead and to direct the political community. The executive power is indeed the center of impulse and decision Industrial societies required a ‘motorized legislator’, and this secondary legislator was to be the executive: the advent of the legislating executive indeed constitutes one of the most important transformations of constitutionalism. In the administrative State the executive power thus gains a third power: the power to adopt delegated legislation. A modern treatment of executive power should then include three core functions of the executive: - the political power to govern; - the legislative power to adopt executive norms; and - the administrative power to enforce legislation. Governmental powers: The Union’s dual executive The government is that part of the executive that is charged with providing leadership and direction and, depending on whether there exist one or two organs charged with political leadership, we speak of a monist or dualist government. The EU has a dual executive: - The European Council and The Commission are indeed entitled to govern the Union. 80 by DLA The Legal Instruments of Political Leadership What policy instruments do the two institutions have? The European Council → With the 2007 Lisbon Treaty, the European Council has finally become a formal institution of the European Union and started a substantive development in which the European Council has become the political backbone of the European Union. The European Council shall meet twice every six months but can have additional meetings when the situation so requires. These regular meetings follow the seasons: there is a spring, summer, autumn, and winter meeting. They are held in Brussels. 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 has its own President, who will be an additional member. The President of the Commission shall also be a formal member, but neither him nor the president of the European Council enjoy a voting right. Decision Making in the European Council: 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 Article 15 (4) TEU: “Except where the Treaties provide otherwise, decisions of the European Council shall be taken by consensus.” The general rule for decisions of the European Council is unanimity of all MS. However, there are some instances within the Treaties in which the European Council may act by a qualified majority. 81 by DLA President of the European Council: The permanent President (which originally was not permanent but rotating) is elected by the European Council, the period of office will be a term of two and half years. 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. The President of the European Council: - Shall chair it and drive forward its work; - 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; - Shall endeavor to facilitate cohesion and consensus within the European Council; - Shall present a report to the European Parliament after each of the meetings of the European Council. The functions and powers of the European Council are described in Art. 15 TEU. Primary Function: - Executive Function (cf. Article 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) Secondary Functions: - Constitutional: In limited areas, the European Council is given the power unilaterally to ‘bridge’ the procedural or competence limits established by the Treaties. - Institutional: It can influence the composition of the European Parliament, as well as that of the European Commission. - Arbitration: The European Council is here empowered to suspend the legislative procedure to arbitrate between the Council and a Member State claiming that the draft European law ‘would affect fundamental aspects of its criminal justice system’. 82 by DLA The Commission acts as a college and shall act by a majority of its members The Commission’s Rules of Procedures distinguish between: - Oral: requires decision by the College. The oral procedure stipulates a commission meeting which is private and should take place at least once a week, to save time during the meetings the Commission Agenda will typically be divided into A-items and B-items, the Commission is entitled to dispense with a physical meeting and decide by means of a written procedure, decisions are generally taken by tacit consensus but also majority vote is possible. - Written: requires decision by the College. According to the written procedure a draft text is circulated to all members and each commissioner is entitled to make known any reservation. - Empowerment: entitle the Commission to delegate power to individual officers or to the director-general. - Delegation Procedure: entitle the Commission to delegate power to individual officers or to the director-general. Agencies The Union has created European Agencies to assist the Commission, they are created by secondary union law and have primarily the function to assist the Commission, any agencies are simply information satellites. They are distinguished between: - Executive Agencies: are subordinate to the Commission, have a limited lifetime and consist in a Steering Committee and a Director. - Independent Agencies: will typically consist of a management Board composed of one representative for each MS and one representative of the Commission, they will be headed by an Executive Director who will be independent in the execution of his duties. 85 by DLA The Informal Procedure(s) of Government Both institutions are cooperating in the joint tasks of government: - Many of the major policy initiative within the Union originate in the Commission, yet are addressed to the European Council → Upward Cooperation (Commission proposes, European Council acts) Example: ‘Europe 2020’; - Where the EU Council has formally endorsed a general policy initiative, it may subsequently charge the Commission with the elaboration of specific policy initiatives → Downward Cooperation (European Council “invites” the Commission to act) Example: ‘Stockholm Programme’. With the Commission being elected by the European Parliament, the possibility arises that the political orientation of the latter may differ from that of the European Council → cohabitation. Law-making Powers: Delegated and Implementing Acts The advent of the legislative executive indeed “constitutes one of the most important transformations of constitutionalism”. In many constitutions this was NOT envisaged, and hence “legislative power” needed to be “delegated” (ex: USA). Executive legislation may thereby derive from two sources: 1. It can be based on ‘autonomous’ regulatory competence granted by the constitution; or 2. It may be delegated to the executive on the basis of primary legislation. European Treaties allow for autonomous and delegated regulatory powers of the Commission. The Union legislator alone would not be able to legislate on all the matters falling within the scope of the Treaties… BUT would there be constitutional controls around delegated powers? Yes, since they create “distortions” in the (original) Separation of Powers: 1. Every delegation of power away from the intergovernmental Council to the supranational Commission would have a significant unitary effect. 86 by DLA 2. Every delegation away from the directly elected European Parliament to the indirectly elected Commission would have a significant anti-democratic effect. Constitutional Safeguards: Judicially, the Court of Justice has endorsed a “non-delegation” doctrine: the European legislator is constitutionally prohibited from delegating essential political choices to the executive. Yet even within these substantive limits, the European legislator has traditionally been unwilling to delegate power without some political control: it insisted on the establishment of committees as political safeguard of federalism; this political safeguard has become known as “Comitology”. The Lisbon Treaty changed the regime and distinguished between a delegation of legislative power (i.e. to amend primary legislation, subject to safeguards established in Article 290 TFEU) and a delegation of executive power (i.e. to implement primary legislation, subject to the safeguards established in Article 291 TFEU). The Delegation of ‘Legislative’ Power: Article 290 TFEU Article 290 (1) TFEU: “A legislative act may delegate to the Commission the power to adopt non-legislative acts of general application to supplement or amend certain non-essential elements of the legislative act.” 4 Conditions: “legislative”, “Commission”, “general application”, “non-essential”. Supplementing: this is meant to add certain types of details, adding further rules to pieces of legislation; Amending: this is the core of article 290, changing the primary act of the legislation. 87 by DLA Constitutional Safeguards for Implementing Legislation Who is to control the exercise of executive or “implementing power”? Who is the Union’s executive and who should control these delegations? Article 291 TFEU: “Where uniform conditions for implementing legally binding Union acts are needed, those acts shall confer implementing powers on the Commission, or, in duly justified specific cases and in the cases provided for in Article 24 and 26 TEU, on the Council”. → the provision thus envisages the Commission and the Council as possible recipients of delegated implementing power; Article 291 (1): “Member States shall adopt all measures of national law necessary to implement legally binding Union acts. [...]”. Article 291 (2): “Where uniform conditions for implementing legally binding Union acts are needed, those acts shall confer implementing powers on the Commission [...]”. Article 291 (3): “[…] the European Parliament and the Council... shall lay down in advance the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers”. → This last paragraph represents the new comitology system and distinguishes between two procedures: - The advisory procedure: Committee’s opinion is only advisory; - The examination procedure: Committee has veto power which, in case of negative opinion, allows the Commission to refer the draft act to an ‘appeal committee’ for re-deliberation. Both procedures require the Commission to be assisted by a Committee composed of representatives of the MS and it will have to submit drafts to a committee. 90 by DLA Excursus: Delegating ‘Implementing Powers’ to Agencies While the Union legal order heavily draws on agencies to implement Union policies, it has traditionally not permitted the delegation of discretionary powers to them, this principle was established in Meroni, Case 9/56: “The consequences resulting from a delegation of powers are very different depending on whether it involves clearly defined executive powers ... or whether it involves a discretionary power, implying a wide margin of discretion which may, according to the use which is made of it, make possible the execution of actual economic policy. A delegation of the first kind cannot appreciably alter the consequences involved in the exercise of the powers concerned, whereas a delegation of the second kind, since it replaces the choices of the delegator by the choices of the delegate, brings about an actual transfer of responsibility”. Thus, delegation to bodies “outside” the institutional framework, such as agencies, is possible only if no discretionary power is given to the agency. BUT in a more recent case UK v. Parliament and Council (ESMA), the Court seemed to accept the idea of agency discretion as long as that discretion was circumscribed, precisely delineated and amenable to judicial review in the light of the objectives established by the delegating authority. 91 by DLA Administrative Powers I: Centralized Enforcement With regard to the enforcements of federal law, federal unions may follow one of two constitutional models: - Centralization Model: (example: US) the administration of federal law is left to federal administrative authorities; - Decentralization Model: (example: Federal Republic of Germany) the execution of federal law is left to the MS of the Union. Which model does the Union follow? Article 291 (1) TFEU: “Member States shall adopt all measures of national law necessary to implement legally binding Union acts”; but where “uniform conditions for implementing legally binding Union acts are needed”, the Union shall adopt the executive act. → primarily the MS are called to execute European law, but the execution by the Union constitutes a subsidiary option. The Scope of the Unions’ Administrative powers The Union is based on the principle of conferral, but where are the Union’s executive powers? The vast majority of its competences were originally “legislative” competences; and executive powers were expressly attributed in few areas indeed two competences provide the Union with general administrative competences: Article 114 TFEU: The Union’s internal market competence under Article 114 TFEU allows the Union to adopt “measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States”. The power to adopt “measures” appeared to include the power to adopt individual decisions. But how could an administrative decision ‘harmonize’ national laws or administrative decisions? In Germany v Council (Product Safety Directive), Case C-359/92 was clarified that in certain fields, and particularly in that of product safety, the approximation of general laws alone may not be sufficient to ensure the unity of the market. Consequently, the concept of "measures for the approximation" of legislation must be interpreted as encompassing the [Union]'s power to lay down measures relating to a specific product or class of products and, if necessary, individual measures concerning those products. 92 by DLA Excursus: Enforcement in National Courts The Consistent Interpretation Principle Simmenthal, Case 106/77: The European Court, in the Simmenthal II case, stated that national courts are under a direct obligation to give immediate effect to European law: where nationals measures conflict with European law, the supremacy of European law would not render them void, but only inapplicable. The executive force of European law thus generally leaves the normative validity of national law intact; national courts are not obliged to break national law, they must only not apply it when a conflict arises. Rewe-Zentralfinanz , Case 33/76: ‘Accordingly, in the absence of (European) rules on this subject, it is for the domestic legal system of each Member State to designate the courts having jurisdiction and to determine the procedural conditions governing actions at law intended to ensure the protection of the rights which citizens have from the direct effect of (European) law, it being understood that such conditions cannot be less favorable than those relating to similar actions of a domestic nature”. → The principle of ‘national procedural autonomy’ essentially means that the Union ‘piggybacks’ on the national judicial systems → European rights but national remedies. The core duty governing the decentralized enforcement of European law is the duty of ‘sincere cooperation’. Edis v Ministero delle Finanze, Case C-231/96, [1998] ECR 4951: “Observance of the principle of equivalence implies, for its part, that the procedural rule at issue applies without distinction to actions alleging infringements of [Union] law and to those alleging infringements of national law, with respect to the same kind of charges or dues. That principle cannot, however, be interpreted as obliging a Member State to extend its most favorable rules governing recovery under national law to all actions for repayment of charges or dues levied in breach of [Union] law.” Factortame: “[A]ny provision of a national legal system and any legislative, administrative or judicial practice which might impair the effectiveness of [Union] law by withholding from the national court having jurisdiction to apply such law the power to do everything necessary at the moment of its application to set aside national legislative provisions which might prevent, even temporarily, [Union] rules from having full force and effect are incompatible with those requirements, which are the very essence of [Union] law. It must be added that the full effectiveness of [Union] law would be just as much impaired if a rule of national law could prevent a court seized of a dispute governed by [Union] law...” 95 by DLA The liability Principle Francovich and others v. Italy: the European Court proclaimed the existence of a European remedy for breaches of European law, in certain situations the state must be able to be sued, where the state was liable to compensate for losses caused by its violation of European law. The Court made the principle of state liability dependent on the fulfillment of three conditions: 4. The first of those conditions is that the result prescribed by the directive should entail the grant of rights to individuals. 5. The second condition is that it should be possible to identify the content of those rights on the basis of the provisions of the directive. 6. Finally, the third condition is the existence of a causal link between the breach of the State's obligation and the loss and damage suffered by the injured parties. Those conditions are sufficient to give rise to a right on the part of individuals to obtain reparation, a right founded directly on [European] law. → strict liability as any breach of an identifiable European right would lead to State liability. Brasserie du Pecheur: the Court introduced a much more restrictive principle of liability since here it stated that “in such circumstances, [European] law confers a right to reparation where three conditions are met: the rule of law infringed must be intended to confer rights on individuals; the breach must be sufficiently serious; and there must be a direct causal link between the breach of the obligation resting on the State and the damage sustained by the injured parties.” “55. (...) the decisive test for finding that a breach of [Union] law is sufficiently serious is whether the Member State or the [Union] concerned manifestly and gravely disregarded the limits on its discretion. 56. The factors which the competent court may take into consideration include the clarity of the rule of law breached, the measure of discretion left by that rule to the national or Community institution, whether the infringement or damage caused was intentionally or voluntary, whether any error of law was excusable or inexcusable, the fact that a position taken by the [Union] institution may have contributed towards the omission (...)” the reference to ‘sufficiently serious’ breaches was thus added here by reference of the discretion that MS enjoy. Kobler Case, finally determined that the principle of state liability for breaches of European law extended to wrong judicial decisions. 96 by DLA Notes from Professor Schütze’s classes (Chapter 9) Executive Powers: A good start to understand what Executive Powers are is by analyzing from a negative to a positive definition. Three “core” functions in modern times: 1. To ”govern”, that is to lead; This is a highly political power. 2. To “legislate”, that is to create rules; Most of the time there are delegated pieces of legislation given to the executive. 1 and 2 have in common the fact that you take a decision. 3. To “enforce”, that is to apply rules. 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; In this case we mean that there is only one institution which is enforced with the executive function: The president. Dualist Executive: Great Britain & France. In the European Union we have a kind of semi-presidential or semi-parliamentary system, with a dualist executive: 97