EU LAW Second Year PPE - Robert Schuetze, Dispense di Diritto Costituzionale Europeo

Scarica EU LAW Second Year PPE - Robert Schuetze e più Dispense in PDF di Diritto Costituzionale Europeo solo su Docsity! EUROPEAN UNION LAW Professor: Robert Schuetze 2022-2023 Notes by DLA Notes by DLA WEEK 7 The Separation of Powers Principle and the EU EU Legislative Powers 21/03/2023-Robert Schuetze EU Legislative Powers “I am not Francesco Cherubini if you have not noticed” The Separation-of-Powers Principle John Locke: Two Treatises of Government The central task of liberal constitutionalism is to establish limits to “the [i]nconveniences of [a]bsolute power”. One of the oldest constitutional devises of limiting absolute power is to split it, that is: to “balance[e] the [p]ower of [g]overnment, by placing several parts of it in different hands”. De Montesquieu: The Spirit of the Laws I “In every government there are three sorts of power: the legislative; the executive in respect to things dependent on the law of nations; and the executive in regard to matters that depend on the civil law. By virtue of the first, the prince or magistrate enacts temporary or perpetual laws... By the second, he makes peace or war. By the third, he punishes criminals, or determines the disputes that arise between individuals. The latter we shall call the judiciary power[.]” De Montesquieu: The Spirit of the Laws II “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, lest the same monarch or senate should enact tyrannical laws, to 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. 2 Notes by DLA Legislative Powers? Two competing conceptions of the notion of legislative power have emerged in the modern era: - The functional conception of legislation. Material legislation = general rules (SoP 1); - The procedural or parliamentary conception of legislation. Formal legislation = acts under the parliamentary procedure (SoP 2). Union “Legislator” Article 289 TFEU: “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 for by the Treaties, the adoption of a regulation, directive or decision by the European Parliament with the participation of the Council, or by the latter with the participation of the European Parliament, shall constitute a special legislative procedure.” 5 Notes by DLA “Ordinary” Legislative Procedure: Article 294: Parliament rejects proposal First reading Council adopts its own p ! Parliament rejects Council po: Parliament amends Coun Second reading Council does not approve all amendments Notes by DLA This is the Parliament: Standing committees are fundamental. Majority vote. 7 Notes by DLA Almost all european union legislations are adopted by the parliament following these early agreements. 10 Notes by DLA Trialogues speed up the legislative process, which usually took from 2 to 3 or more years; trialogues shorten the period of time needed through the early agreements. Special legislative Procedures Special “Parliamentary legislation” (with the consent of the Council); Special “Council legislation” (requiring either the consent or consultation of the Parliament); Difference between “Consent” and “Consultation”? They are not symmetric, in the one on the right the parliament is dominant. Consultation has only a secondary role. Council Legislation: regulations; directives and decisions. 11 Notes by DLA Limited Legislative Powers The Principle of Conferral: “Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.” Original Rome Treaty 12 Notes by DLA General Competence One of these general competencies is hidden in Title VII: ART. 114 TFEU (internal market); The second is at the end of the Treaties: ART. 352 TFEU (internal market). Both provisions deal with the same topic as the internal market was the core project of the EU. ART. 114 TFEU simply says that the EU can legislate in order to create the internal market ART. 114 TFEU aims at removing unconform national laws in the name of harmonizing (conforming) EU Law. But if national laws do not exist? Can still ART. 114 TFEU be used? The ECJ said yes: even if there is no national law. But still, the EU must have some limits in its competencies as the EU is not a state. Treaties. ART. 114 TFEU requires Ordinary Legislative Procedure. ART. 352 TFEU is also known as residual competence. If the EU does not find any specific legislation it can use ART. 352 TFEU. The provision says explicitly that if the EU does not have a specific competence, ART. 352 TFEU allows the EU to act in that area through the Special Legislative Procedure. The EU has used ART. 352 TFEU to issue sanctions against terrorists after 9/11 as there was no specific provision in the Treaties. There is a specific political limit: ART. 352 TFEU is less harmful than ART. 114 TFEU because to apply article 352 TFEU you need the unanimity of the Council. As the membership of the EU gets bigger it is harder to have unanimity of the Council. 15 Notes by DLA 24/03/2023-Robert Schuetze EU Legislative Powers (pt.3) Four Types EU Competences Exclusive: Article 2 (1) TFEU. “When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.” Exclusive Competences (Art. 3): a. customs union; b. the establishing of the competition rules necessary for the functioning of the internal market; c. monetary policy for the Member States whose currency is the euro; d. the conservation of marine biological resources under the common fisheries policy; e. common commercial policy. Exclusive means that the member states are removed from this area. Monetary inclusion is an exclusive competence of the EU. 16 Notes by DLA Shared: Article 2 (2) TFEU: “... The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence…” Shared Competence (Art.4) 1. The Union shall share competence with the Member States where the Treaties confer on it a competence which does not relate to the areas referred to in Articles 3 and 6. 2. Shared competence between the Union and the Member States applies in the following principal areas: (a) internal market; (b) social policy, for the aspects defined in this Treaty; (...) Principle of primacy: the principle is supreme over national jurisdiction. How did the European Union apply shared competences in the past? There are two ways: 1. Old approach to harmonization I Ratti, Case 148/78 “... not entitled to maintain, parallel with the rules laid down by the Directive for imports, different rules for the domestic market. Thus it is a consequence of the system introduced by Directive No 73/173 that a Member State may not introduce into its national legislation conditions which are more restrictive than those laid down in the Directive in question, or which are even more detailed or in any event different, as regards the classification, packaging and labeling of solvents and that this prohibition on the imposition of restrictions not provided for applies both to the direct marketing of the products on the home market and to imported products.” You need first a piece of legislation (first the EU has to legislate) and then the member states can operate. 17 Notes by DLA This is the weakest type of competence of the EU; this is why the EU was much criticized during the pandemic. The EU response was weak, because human health is in this competence. Example: Public Health Article 168(1) and (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.” Conclusion… The Union does not have one type of competence 20 Notes by DLA Limiting Legislative Powers II Why is there any need to limit EU legislative powers even more? The member states lost two battles: - The first one is about the scope of EU powers; - The second one is that a qualified majority voting is always more implemented. Which are the solutions? Subsidiarity and Proportionality EU Subsidiarity Evolution: 1975 “Report on European Union”: Report on European Union (1975) No more than the existing Communities have done so, the European Union is not to give birth to a centralizing super-state. Consequently, and in accordance with the principe de subsidiarité, the Union will be given responsibility only for those matters which the Member States are no longer capable of dealing with efficiently.’ ‘[I]n deciding on the Union’s competence, application of the principe de subsidiarité is restricted by the fact that the Union must be given extensive enough competency for its cohesion to be ensured’ 1984 “Draft Treaty Establishing the European Union” (two versions of the principle); 1986 Single European Act: Environmental Policy and subsidiarity: Single European Act (1987) Article 130r(4) EEC stated: ‘The Community shall take action relating to the environment to the extent to which the objectives referred to in paragraph 1 can be attained better at Community level than at the level of the individual Member States’. 21 Notes by DLA 1992 (Maastricht) Treaty on European Union: Edinburgh Guidelines (1992) ‘[B]oth aspects of the subsidiarity criterion are met: the objectives of the proposed action cannot be sufficiency achieved by Member States’ action and they can therefore be better achieved by action on the part of the Community’. In assessing the insufficiency test, the transnational aspects of a problem as well as the Union’s commitment to creating an internal market should be taken into account. As regards the comparative efficiency test, the Edinburgh Guidelines insist that Community action would need to ‘produce clear benefits by reason of its scale or effects compared with action at the level of the Member States’. 1997 Treaty of Amsterdam; 2009 Lisbon Treaty: Subsidiarity (Maastricht/Lisbon) Article 5 (3) TEU: Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level. The Union should only act only if the member states are not able to do a certain type of action alone (insufficiency test). It only applies to non-exclusive competences, because if member states cannot act you do not need the principle of subsidiarity. This principle looks from the beginning not to be so clear. 22 Notes by DLA The commission needs to rejustify why the draft is aligned with the principle of subsidiarity. Better Subsidiarity Review - Ex ante judicial Review? - “Subsidiarity Court“? - “Clear Statement Rules“ imposed on the Union legislator? - More judicial “activism” (on behalf of the States)? Also the principle of subsidiarity has not been so successful. 25 Notes by DLA Finally: Proportionality Review ... not to crack a nut with a sledgehammer... Article 5(4) TEU: “the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties”. This is one of the most successful principles of the union. Only to the extent that you really need to act; this has been interpreted as for protecting fundamental human rights. Proportionality Article 5(4) TEU: “Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties.” 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.” This principle has 3 sub-steps: 1. Suitability; 2. Necessity; 3. Proportionality. This principle is so successful because the court of justice has taken it very seriously; the problem of the member states is that they take this principle seriously only in the case of individuals. 26 Notes by DLA 27 Notes by DLA European Council The composition of the European Council is as simple as it is exclusive. It consists of the Heads of State or Government of the Member States. The European Council shall meet twice every six months, but can have additional meetings when the situation so requires. These regular meetings follow the seasons: there is a spring, summer, autumn, and winter meeting. It meets much more than 4 times a year. It now meets in Brussels but in the past it usually met in the country of the President of the European Council. Functions: 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) We find these informations in a document called “Presidency Conclusions” Secondary Functions: Constitutional; Institutional; Arbitration. Article 50 TEU: “2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.” 30 Notes by DLA The Parliament: Composition Article 14 (2) TEU: “The European Parliament shall be composed of representatives of the Union’s citizens. They shall not exceed seven hundred and fifty in number, plus the President. Representation of citizens shall be degressively proportional, with a minimum threshold of six members per Member State. No Member State shall be allocated more than ninety-six seats. The European Council shall adopt by unanimity, on the initiative of the European Parliament and with its consent, a decision establishing the composition of the European Parliament, respecting the principles referred to in the first subparagraph.” European Council: Decision- Making How will it decide? The decision-making process within the European Council is shrouded in secrecy for its meetings are not public. The default principle is set out in Article 15 (4) TEU: “Except where the Treaties provide otherwise, decisions of the European Council shall be taken by consensus.” The President This is an innovation of the Lisbon Treaty. The president is going to serve for only 2.5 years. The President of the European Council: (a) Shall chair it and drive forward its work; (b) Shall ensure the preparation and continuity of the work of the European Council in cooperation with the President of the Commission, and on the basis of the work of the General Affairs Council; (c) Shall endeavor to facilitate cohesion and consensus within the European Council; (d) Shall present a report to the European Parliament after each of the meetings of the European Council. The President of the European Council shall, at his level and in that capacity, ensure the external representation of the Union on issues concerning its common foreign and security policy, without prejudice to the powers of the High Representative of the Union for Foreign Affairs and Security Policy. 31 Notes by DLA The actual president of the European Council is Charles Michel. He also represents the EU outside. Commission There is competition between the Commission and the European Council as in the case of the Sofagate1. Commission: “Elections” Two- stage process with the appointment of the President… should the latter be the “leader” of the strongest political formation? On 2 July 2019, von der Leyen was proposed by the European Council as the candidate for president of the European Commission. She was then elected by the European Parliament on 16 July. (Up to 2019 it was not the task of the European Council to elect the president of the Commission, but it was the task of the European Parliament). In some sense the European Council is able to elect the president of the Commission. Second stage: Commission as a collective body.... The Parliament should also elect all the whole commission. 1 For further information see: Sofagate - Wikipedia. 32 Notes by DLA The college is composed of 27 members each with a specific task. Josep Borell works both for the Council as High Representative and for the Commission as Vice president. The President of the Commission decides “who gets what”. Internal Commission Structure The Commission is organized into policy departments, known as Directorates-General (DGs), which are responsible for different policy areas. DGs develop, implement and manage EU policy, law, and funding programmes. In addition, service departments deal with particular administrative issues. Executive agencies manage programmes set up by the Commission. There are about 35 thousand people working for the Commission. 35 Notes by DLA What are “EU Agencies” for? What are the functions of European Agencies? Their primary function is to assist the Commission in its task to ‘ensure’ and ‘oversee’ the application of European law. Some EU Agencies are entitled to adopt binding decisions and thus apply European law directly. Other EU Agencies are charged to prepare draft legislation for the Commission. Many EU Agencies are simply information satellites: they are tasked to help the Commission in monitoring a policy area and to collect and coordinate information FRONTEX is the biggest Agency. 36 Notes by DLA Commission Powers Article 17 TEU (1) TEU: “The Commission shall promote the general interest of the Union and take appropriate initiatives to that end. It shall ensure the application of the Treaties, and of measures adopted by the institutions pursuant to them. It shall oversee the application of Union law under the control of the Court of Justice of the European Union. It shall execute the budget and manage programmes. It shall exercise coordinating, executive and management functions, as laid down in the Treaties. With the exception of the common foreign and security policy, and other cases provided for in the Treaties, it shall ensure the Union’s external representation. It shall initiate the Union’s annual and multiannual programming with a view to achieving inter institutional agreements.” 1. Power to make initiatives: Legislative “Involvement” Article 17 (2) TEU: “Union acts may only be adopted on the basis of a Commission proposal, except where the Treaties provide otherwise.” Is the Commission that needs to make the Legislative proposal. 2. Application of the treaties (administrative function) Executive Function Art. 105(1) TFEU: “[T]he Commission shall ensure the application of the principles laid down in Articles 101 and 102. On application by a Member State or on its own initiative, and in cooperation with the competent authorities in the Member States, which shall give it their assistance, the Commission shall investigate cases of suspected infringement of these principles. If it finds that there has been an infringement, it shall propose appropriate measures to bring it to an end.” 3. Role as Policeman in the EU (quasi-judicial function) Judicial “Involvement” Art. 258 TFEU: “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.” 37 Notes by DLA 29/03/2023-Robert Schuetze Recap of Yesterday Class Summary (Executive) Law-Making Powers The advent of the legislating executive “constitutes one of the most important transformations of constitutionalism”. In many constitutions this was NOT envisaged, and hence “legislative power” needed to be “delegated”... The rise of the executive exercising legislating function is something connected to the beginning of the 20th century. Legislative power to be used and exercised should have been delegated. US Comparison The start of the American ‘administrative state’ has been dated to 1887, a hundred years after the birth of the United States. The industrializing nation required ever more technical legislation. Yet, nineteenth century constitutionalism opposed the idea of a delegation of legislative powers away from Congress... 40 Notes by DLA US Non-Delegation Doctrine Look at this video: Can Congress Sub-Delegate Legislative Powers? [No. 86]. Field v Clark (1892): “That Congress cannot delegate legislative power to the President is a principle universally recognised as vital to the integrity and maintenance of the system of government ordained by the constitution.” “death” after New Deal Schechter Poultry v United States (1935): “The Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested. We have repeatedly recognized the necessity of adapting legislation to complex conditions involving a host of details with which the national Legislature cannot deal directly. . .” If you want someone to act immediately, you cannot leave the matter to the legislature since the legislature took so long. Executive Agencies 41 Notes by DLA Delegations tilt balance of power Delegations in the EU Yes, but 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; 2. Every delegation away from the directly elected European Parliament to the indirectly elected Commission would have a significant anti-democratic effect. These are two elements of the tilting balance of powers in the EU. 2 Constitutional Regimes We have two constitutional regimes. The Union legal order distinguishes between: Delegation of “legislative” power that is: the power to amend primary legislation; Delegation of “executive” power that is: the power to implement primary legislation. The two regimes are set out in Articles 290 and 291 TFEU. 42 Notes by DLA The Court Commission v. Parliament & Council (Agency Fees), Case 427/12: “The EU legislature has discretion when it decides to confer a delegated power in the Commission pursuant to Article 290(1) TFEU or an implementing power pursuant to Article 291(2) TFEU’. And while this legislative discretion was subject to judicial review the Court would limit its review to ‘manifest errors of assessment”. 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. Amend or Supplement 45 Notes by DLA 31/03/2023-Robert Schuetze Political Safeguards under Article 290 TFEU Legislative acts shall explicitly lay down the conditions to which the delegation is subject; these conditions may be as follows: - The European Parliament or the Council may decide to revoke the delegation; - The delegated act may enter into force only if no objection has been expressed by the European Parliament OR the Council within a period set by the legislative act (VETO). Some countries have argued that in order to revoke the delegation you need to have the same authority. You need both to agree. This has been unsuccessful because the parliament does not have time to check on the executive. 46 Notes by DLA One of the countries that have followed that logic is the US: US Comparison Immigration and Naturalisation Service v Chada (1983): Immigration and Naturalisation Act authorized the Attorney General to suspend the deportation of an alien, where “extreme hardship” would occur… - The House of Representatives vetoed the suspension… US Supreme Court: unilateral veto is unconstitutional. ... a good question: But if a delegation of legislative power is subject to the political control of the legislature, who is to control the exercise of executive or “implementing power”? Delegation of “Executive” or “implementing” Power: 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” What is implementing power? Basically administrative power. ... so...who is the Union “executive” and who should control these delegations? 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.” Member states control the delegated powers. 47 Notes by DLA The idea to execute laws is what is most connected with the idea of the executive. Administrative Powers In administering there are two ways: 1. (Federal) Centralisation Model According to the “centralization model”, the administration of federal law is left to federal administrative authorities. In order to enforce its law, the Union thus establishes its own administrative infrastructure (United States). This model has been adopted in the United States of America. No-Commandeering I New York v United States: “States are not mere political subdivisions of the United States. State governments are neither regional offices nor administrative agencies of the Federal Government.” Having retained a “residuary and inviolable sovereignty”, the Union cannot “compel the States to enact or administer a federal regulatory program”. While federal legislation is supreme over State legislation, the States – as corporate entities – are not “subordinate” to the Union. No-Commandeering II Printz v. United States, 521 U.S. 898 (1997): Can the Federal Government force the State executive to apply federal law? 50 Notes by DLA - No. 2. (Federal) Decentralization Model The “decentralization model” leaves the execution of federal law to the Member States of the Union. The Union’s executive competences are here smaller than its legislative competences. This system of decentralized execution is called “executive federalism”, and has traditionally been adopted in the Federal Republic of Germany. German Constitution The central pillar of Germany’s executive federalism is Article 83 of the German Constitution (GC): “The States shall execute federal laws in their own right unless this Constitution does provide or permit otherwise.” While there are indeed constitutional exceptions, the decentralized enforcement of federal law thus represents the constitutional rule. 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”; ((Federal) Decentralization Model) Direct effect: the member states need to implement law. but where “uniform conditions for implementing legally binding Union acts are needed”, the Union shall adopt the executive act. ((Federal) Centralisation Model) a bit of both... The European Union appears to combine both federal models: It partly adopts the American solution in which the Union’s legislative and executive spheres coincide; but unlike American federalism, the Union’s executive powers are subsidiary to the administrative powers of the Member States (b). 51 Notes by DLA Centralised Enforcement: Union’s Executive 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 (very) few areas indeed. BUT: Article 114 TFEU and Article 352! 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.” Germany v Council (Product Safety Directive), Case C-359/92: 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. Article 352 TFEU: And an even more general legal basis for the adoption of administrative measures may be available to the European Union: Article 352 TFEU. The article allows the Union to “adopt the appropriate measures”, where this is necessary to attain one of the objectives set out in the Treaties. This power includes the competence to adopt administrative decisions. Administrative Infrastructure: Agencies! 52 Notes by DLA Decentralized Administration Member states are under the duty of loyal cooperation. Obligation on National Administrations National Administrative Autonomy (1) One expression of the principle of national procedural autonomy may be seen in the European “no-commandeering” rule. A Union decision may arguably never “command” national executive officers directly. The formal addressee of a state- addressed decision always remains the Member State as such. 55 Notes by DLA National Administrative Autonomy (2) But even if the Union cannot penetrate into the administrative structures of its Member States, the procedural autonomy of the Member States is not absolute. National administrative rules are subject to the constitutional principles of equivalence and effectiveness. The principle of equivalence: The principle of equivalence ensures that national remedies for the enforcement of EU rights cannot be less favorable than similar actions under national law. The principle, however, does not improve the substance of the national remedies. Decentralized Enforcement (2) This choice in favor of the decentralized application of European law has two consequences: 1. First, administrative decisions taken by the national authorities implementing European law may only be valid in the national territory; 2. Second, because the authorities that execute European law are national authorities, it is national administrative law that governs the case. To prevent that, the general way the EU has applied is: Mutual Recognition 56 Notes by DLA Mixed Administration The Union and the state administrations collaborate in reaching a joint decision. 57 Notes by DLA 1831 Belgian Constitution “Les traités de commerce et ceux, qui pourraient grever l’Etat ou lier individuellement des Belges, n’ont d’effet qu’après avoir reçu l’assentiment des Chambres. Nulle cession, nul échange, nulle adjonction de territoire ne peut avoir lieu qu’en vertu d’une loi.” 1871 German Imperial Constitution “Insoweit die Verträge mit fremden Staaten sich auf solche Gegenstände beziehen, welche nach Artikel 4 in den Bereich der Reichsgesetzgebung gehören, ist zu ihrem Abschluss die Zustimmung des Bundesrates und zu ihrer Gültigkeit die Genehmigung des Reichstages erforderlich.” Belgian and German adopts the principle/doctrine of parallelism. The doctrine of parallelism has been defined in the following terms: “The [Union] may within the limits of its powers and jurisdiction, enter into obligations by concluding agreements or contracts with a third State, an international organization or a national of a third State.” Article VI US Constitution This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land[.] U.S. Constitution, Article II-Section 2 (Clause 2) “[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur[.]” Where is the “House”? Federalist No.75 (Hamilton) “Accurate and comprehensive knowledge of foreign politics; a steady and systematic adherence to the same views; a nice and uniform sensibility to national character; decision, secrecy, and despatch, are incompatible with the genius of a body so variable and so numerous.” 60 Notes by DLA New Deal “Internationalism” “The result is that our constitutional law today makes available two parallel and completely interchangeable procedures, wholly applicable to the same subject matters and of identical domestic and international legal consequences, for the consummation of intergovernmental agreements.” The “Congressional-Executive Agreement” In parallel to the “treaty-making procedure” in Article II, American constitutionalism thus recognizes an “agreement-making procedure” in Article I. Congressional agreements are here concluded under the “ordinary” legislative procedure set out in that Article I – Section 7. This gives the House of Representatives an equal share, with the Senate, in the conclusion of international agreements. Treaty–Making in the EU Humble Beginnings The European Union was not seen to have so much power in external relations. Treaty-Making = Commission + Council - Luns Procedure (1964); - Westerterp Procedure (1973); - “Stuttgart Declaration” (1983). Treaty Amendments until Lisbon. With the Lisbon Treaty all these have radically changed. Why is this important? The European Union has a monistic relations in international law. The Union legal order adopts –again like the United States– a monist stance vis-à-vis international treaties; and a Union treaty will thus be “equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provisions[.]” What is the democratic legitimation behind this form of “external legislation”? 61 Notes by DLA Monism and Dualism What is the monist approach to EU law? Monist States make international law part of their domestic legal order. International law will here directly apply as if it were domestic law. By contrast, dualist States consider international law separate from domestic law. 62 Notes by DLA 3. Conclusion Phase: Council & Parliament (except for CFSP). Council Conclusion: The Council shall act by a qualified majority throughout the procedure. However, it shall act unanimously when the agreement covers a field for which unanimity is required for the adoption of a Union act as well as for association agreements and the agreements referred to in Article 212 with the States which are candidates for accession... Article 218 (6) TFEU Except where agreements relate exclusively to the common foreign and security policy, the Council shall adopt the decision concluding the agreement: (a) after obtaining the consent3 of the European Parliament in the following cases: (i) association agreements; (ii) agreement on Union accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms; (iii) agreements establishing a specific institutional framework by organizing cooperation procedures; (iv) agreements with important budgetary implications for the Union; (v) agreements covering fields to which either the ordinary legislative procedure applies, or the special legislative procedure where consent by the European Parliament is required. CFSP (Common Foreign Security Policy): Article 36 TEU: “The High Representative of the Union for Foreign Affairs and Security Policy shall regularly consult the European Parliament on the main aspects and the basic choices of the common foreign and security policy and the common security and defense policy and inform it of how those policies evolve. He shall ensure that the views of the European Parliament are duly taken into consideration.” 3 Consent simply means that the Parliament can say “yes or no” to the international agreement. 65 Notes by DLA Union Succession? Can the Union be bound by agreements that it has not formally concluded? The counter-intuitive answer is positive: under European law, the Union can be bound by agreements of its Member States where the former has succeeded the latter. This is possible if it is an exclusive competence of the Union. International Fruit and the GATT: 66 Notes by DLA 05/04/2023-Robert Schuetze Union Succession? Can the Union be bound by agreements that it has not formally concluded? The counter-intuitive answer is positive: under European law, the Union can be bound by agreements of its Member States where the former has succeeded the latter. This is possible if it is an exclusive competence of the Union and if all the member states need to be patriot in the agreement. International Fruit and the GATT: Beyond Treaty-Making Unilateral Acts towards Third States. Among the sources of EU law, unilateral acts are that part of the EU’s secondary legislation other than conventions and agreements. They are adopted autonomously by the EU institutions in accordance with the founding treaties. - Declaration and “Positions”; - “CFSP” Missions; - Protective Tariffs and Duties; - Anti-Terrorist Measures Procedure depends on whether “normal” competence (legislative procedure) CFSP. 67 Notes by DLA Common Foreign & Security Policy Article 24 TEU here grants the Union “competence in matters of common foreign and security policy [that] shall cover all areas of foreign policy and all questions relating to the Union’s security, including the progressive framing of a common defense policy that might lead to a common defense”. The CFSP also includes the CFDP: Common Security & Defence Policy The Common Security and Defence Policy (CSDP) is seen as “an integral part” of the CFSP. What is the scope of the CSDP? The latter “shall provide the Union with an operational capacity”, which the Union may use “on missions outside the Union for peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter”. CFSP – Substantive Decisions European Security Strategy4: The European Security Strategy is the document in which the European Union clarifies its security strategy which is aimed at achieving a secure Europe in a better world, identifying the threats facing the Union, defining its strategic objectives and setting out the political implications for Europe. Restrictive Measures (=Sanctions): against “rogue states” or individuals, especially terrorists. 4 EUROPEAN SECURITY STRATEGY. 70 Notes by DLA European “Missions” (civilian/military missions): the extra territorial action of the EU. Example: 71 Notes by DLA Common Commercial Policy This is the external expression of the Union’s internal market. The Union is here tasked to represent the common commercial interests of the Member States on the international scene and to contribute to “the harmonious development of world trade”. CCP Competence Under Article 207 TFEU, the Union is entitled to adopt (unilateral) legislative acts, and to conclude international agreements. The scope of the CCP covers all matters relating to trade in goods and services, commercial aspects of intellectual property, and foreign direct investment. Only the EU should trade with SuperPowers and the CCP is an exclusive competence of the EU. Decision-Making Ordinary “treaty-making procedure: Commission + Council + Parliament BUT: Unanimity: - in the field of trade in cultural and audiovisual services, where these agreements risk prejudicing the Union’s cultural and linguistic diversity; - in the field of trade in social, education and health services, where these agreements risk seriously disturbing the national organization of such services and prejudicing the responsibility of Member States to deliver them. 72 Notes by DLA Budget: This is an unilateral decision of the EU. 75 Notes by DLA Development Aid: ACP6 Countries On the basis of Article 217 TFEU, the Union has concluded two major development agreements ‘associating’ former colonies: the Lome Convention(s)7 and the Cotonou Agreement8. Since the 1973 accession of the United Kingdom, the regional scope of these conventions covers a number of African, Caribbean and Pacific countries (ACP countries). 8 La Convenzione di Cotonou è un accordo bilaterale tra l'Unione europea e il gruppo degli stati dell'Africa, dei Caraibi e del Pacifico, firmata a Cotonou, in Benin, il 23 giugno 2000. La convenzione prende il posto della precedente Convenzione di Lomé nel gestire i rapporti di cooperazione allo sviluppo tra i paesi ACP e i paesi dell'Unione europea. 7 La Convenzione di Lomé è stato lo strumento di gestione del partenariato tra Comunità europee/Unione europea e Paesi ACP dal 1975 al 2000. La Convenzione fu firmata a Lomé nel febbraio 1975 ed è stata rinnovata più volte. Sarebbe più corretto parlare di Convenzioni di Lomé, al plurale, poiché la Convenzione è stata rinnovata diverse volte: Lomé II (1980), Lomé III (1985), Lomé IV (1990), Lomé IV bis (1995). Nel 2000 la Convenzione è stata sostituita dalla Convenzione di Cotonou. 6 African, Caribbean and Pacific ex colonies. 76 Notes by DLA European Development Fund 1 EDF 1959-64 (EEC Implementing Convention) 581 2 EDF 1964-70 (Yaoundé I Convention) 666 3 EDF 1970-5 {Yaoundé II Convention) 843 4 EDF 1975-80 {Lomé I Convention) 3,124 5 EDF 1980-5 {Lomé II Convention) 4,754 6 EDF 1985-90 {Lomé III Convention) 7,754 7 EDF 1990-5 {Lomé IV Convention) 10,800 8 EDF 1995-2000 (Revised Lomé IV Convention) 12,967 9 EDF 2000-7 {Cotonou Agreement) 13,500 10 EDF 2008-13 (Revised Cotonou Agreement) 22,682 11 EDF 2014-20 (Revised Cotonou Agreement) 29,089 TT Notes by DLA ... yet: There are two exceptions to this rule. First, Article 2 TFEU specifically isolates the Union’s CFSP competence from its ordinary competence categories – an arrangement that suggests a sui generis competence. Second, Article 3 (2) TFEU provides a source of exclusivity for the conclusion of international agreements that goes beyond the competence areas listed in Article 3(1) TFEU. CFSP Competence? We might find a first key to this question in Article 24 TEU dealing with the nature of the CFSP competence. The provision declares that ‘[t]he adoption of legislative acts shall be excluded’ within the CFSP area. What will this mean? If the reference to ‘legislative acts’ were given a formal meaning, that is: referring to acts adopted under a legislative procedure… Then Article 24 TEU would state the obvious contrast, if the formulation is given a material meaning, then Article 24 TEU signaled the exclusion of generally applicable CFSP norms. Subsequently Exclusive Competences Article 3(2) TFEU “The Union shall also have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or in so far as its conclusion may affect common rules or alter their scope.” 80 Notes by DLA 14/04/2023-Robert Schuetze Nature of External Competences Article 3(2): Three Situations These three situations correspond to three famous cases... Situation 1: where conclusion of an international agreement “is provided for in a legislative act”. This corresponds to the “Opinion 1/94 (WTO) Doctrine”. Situation 2: where this “is necessary to enable the Union to exercise its internal competence”. This codify the “Opinion 1/76 Doctrine” › Situation 3: where the Union has adopted internal legislation. This codifies the “ERTA Doctrine”. ERTA 1: Parallel Doctrine; ERTA 2: where the Union has adopted internal legislation; in this case the member states lose their powers regarding that competence. 81 Notes by DLA European Court: subsequent exclusivity Union Competences? Dual Federalism: Union | States 82 Notes by DLA Reasons 1. Mixed agreements would allow the Union and its Member States to complement their competences; 2. The uncertainty surrounding the nature of the treaty-making powers of non-state actors under international law; It was not very clear what the value of an international agreement inside an international organization was. 3. Member States insist to participate in their own name so as to remain “visible” on the international scene. It is much easier for third states to negotiate with the Commission only (Pure Union agreement). Mixed agreements bind the European Union and all the member states. Mixed agreements must be ratified by 27 states and the European Union (tot.28); 27 National Parliaments + the European Parliament (super democratic). [You basically need unanimity, and this is why the Union does not like the mixed agreements very much] 85 Notes by DLA Problems The widespread use of mixed external action evinces a remarkable Union tolerance towards the Member States’ international powers, as the practice of mixed agreements entails a significant anti-Union consequence: ratification by all Member States requires UNANIMITY! Coordination: Internal EU solution For the Union legal order has employed the duty of cooperation to facilitate the (autonomously) exercise of the Union’s external competences. This facilitating role has been expressed in a positive and a negative manner: The positive aspect of the duty of cooperation may demand that the Member States act as “trustees of the Union interest”. By contrast, the negative aspect of the duty of cooperation can place a limit on the Member States’ exercising their shared external competences. Positive Aspect: Member States as “Trustees of the Union” Problem: only “States” can participate in some international organizations (e.g. UN, ILO, and previously: ECHR) Solution: Opinion 2/91: “In this case, cooperation between the [Union] and the Member States is all the more necessary in view of the fact that the former cannot, as international law stands at present, itself conclude an ILO convention and must do so through the medium of the Member States.” The member states must act in line with the EU. Negative Aspect: “Reverse” Subsidiarity Problem: due to the various procedural obstacles in the Union treaty-making power, the Member States might be much quicker in exercising their shared competence. Solution: Court has imposed specific obligations on the Member States. These obligations limit the exercise of their shared powers, and thus – to some extent – mirror and invert the principle of subsidiarity. 86 Notes by DLA Commission v Luxembourg, Case 266/03 The adoption of a decision authorizing the Commission to negotiate a multilateral agreement on behalf of the [Union] marks the start of a concerted [Union] action at international level and requires, for that purpose, if not a duty of abstention on the part of the Member States, at the very least a duty of close cooperation between the latter and the [Union] institutions in order to facilitate the achievement of the [Union] tasks and to ensure the coherence and consistency of the action and its international representation. Commission v Sweden, Case 246/07 “...that Member States are subject to special duties of action and abstention in a situation in which the Commission has submitted to the Council proposals which, although they have not been adopted by the Council, represent a point of departure for concerted [Union] action” Sweden in an area of shared competence had a different approach. Can Sweden have the same right to voice its own opinion in an area of international agreements? Member states are obliged to abstain to make their opinion known in an area of international agreements. Commission v Germany, Case C-620/16 You cannot, because you would undermine the uniform representation of the EU. 87 Notes by DLA 1947 GATT: 2 Choices The GATT makes a fundamental distinction between tariff barriers and non-tariff barriers with only the former being a legitimate instrument of protectionism. Secondly, within the class of non-tariff barriers, the GATT draws an important distinction. It here distinguishes between two types of national measures, namely: ‘internal’ measures and ‘border’ measures. World Trade and GATT The most important provisions are Article I and Article II. [China was admitted to the WTO and the US now wants to reform GATT] The General Agreement on Tariffs and Trade (GATT) covers international trade in goods. The workings of the GATT agreement are the responsibility of the Council for Trade in Goods (Goods Council) which is made up of representatives from all WTO member countries. Regional Exception: Article XXIV GATT The [Members] recognize the desirability of increasing freedom of trade by the development, through voluntary agreements, of closer integration between the economies of the countries parties to such agreements. Accordingly, the provisions of this Agreement shall not prevent, as between the territories of [Members], the formation of a customs union or of a free- trade area or the adoption of an interim agreement necessary for the formation of a customs union or of a free-trade area. 90 Notes by DLA Degree of Economic Integration Difference between: - Free Trade Agreement: You made an agreement inside the free trade area; - Custom Union: You have a common and external tariff with the external world. Origins of the EU Common Market Spaak Report (1956) By establishing a common market we shall construct an enormous economic space in which the conditions for a common economic policy will be created. The latter will— built by the unity of powerful forces of production... These aims can be achieved through a unification of diverse markets; and a better division of labor will here not only prevent a misuse of production forces but the greater security in the production of goods will also allow us to close production processes that are run without regard to their costs. 1957 Rome Treaty: Aim Ex-Article 2 EEC The Community shall have as its task, by establishing a common market and progressively approximating the economic policies of Member States, to promote throughout the Community a harmonious development of economic activities, a continuous and balanced expansion, an increase in stability, an accelerated raising of the standard of living and closer relations between the States belonging to it. 91 Notes by DLA 1957 EEC Treaty: Structure Preamble ZIA IE ATEO ZIA e RE tento AMOS ORNATO RON ETICI LIO ROSI pat RL attenti UNTER e e atte Zoo UR ta ERRE ER NET RT UL IENT A Bo Sane Title IV. The European Investment Bank Title IV. Transport lt: tei tire o) LOL IE Motel RE LTAVA PaTatattaereo) te Gettin TAV Re 92 Notes by DLA Part II is all about the internal market; Competition rules are set by Part III. Common Market: The “Core” Idea The EEC would thereby go well beyond the idea of a ‘Free Trade Area’ and a ‘Customs Union’, because the EEC was from the start committed to ‘the abolition, as between Member States, of obstacles to freedom of movement for persons, services and capital’. The European common market would indeed aim at the establishment of all four fundamental freedoms, which, once established, would transform the national markets into ‘an enormous economic space in which the conditions for a common economic policy will be created’. The essential core is four fundamental freedoms. Degree of Economic Integration Difference between: - Free Trade Agreement: You made an agreement inside the free trade area; - Custom Union: You have a common and external tariff with the external world. 95 Notes by DLA Methods of Integration Positive and Negative Integration To create a ‘European’ market, the EEC Treaty had adopted a dual strategy. Negative Integration strategy: You remove the obstacles. The Community was, first, tasked to ‘free’ its (future) common market from national barriers to trade in goods, persons, services, and capital. This strategy of negative integration was complemented by a— second— strategy: positive integration. Positive Integration strategy: The EU replaces the different national standards with a common line of thought. Harmonization of National standards. TFEU Treaty in Internal Market The Internal Market is so central in the EU. As a matter of fact, it is Title I. Why is Title III (Agriculture and Fisheries) before Title IV (Persons, Services and Capital)? Because the Agriculture agreement was signed in 1950. 96 Notes by DLA The Free Movement of Goods I TFEU Treaty in Internal Market Article 30 and Article 110 are fundamental ones. The Customs Union Article 28 TFEU “The Union shall comprise a customs union which shall cover all trade in goods and which shall involve the prohibition between Member States of customs duties on imports and exports and of all charges having equivalent effect, and the adoption of a common customs tariff in their relations with third countries.” 97