European Union Law: General Schemes and summary of the main Treaties, Dispense di Diritto dell'Unione Europea

Scarica European Union Law: General Schemes and summary of the main Treaties e più Dispense in PDF di Diritto dell'Unione Europea solo su Docsity! EUROPEAN UNION LAW 1. Process of European Integration; 2. Institutions 3. Competences 4. Legal Sources – hierarchy – law making process – and the effect of the EU Law (Treaties, general principles, acts of the EU institutions, international agreements), relationship between EU law and National Law 1. Judicial system (enforcement actions against Member States, preliminary rulings, review of legality); 2. Single Market and fundamental Freedoms (free movement of goods and persons); 3. Competition Law (enterprises, State aids) EU Law has an authonomous legal system methodological and conceptual dimension. Important to remember the relationships between EU LAWS and Domestic Laws EU law can affect lives of citizens of domestic member states and has very important and difficult set of relationship between EU law on one hand and domestic law on the other hand in case both rule the same behaviour. PART 1 THE ORIGIN OF EUROPEAN INTEGRATION  Europe, European Union and Council of Europe (countries and membership: Art. 49 TEU + Art. 4 CoE) do not confuse Art. 49 TEU Article 49 (ex Article 49 TEU) Any European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union. The European Parliament and national Parliaments shall be notified of this application. The applicant State shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the consent of the European Parliament, which shall act by a majority of its component members. The conditions of eligibility agreed upon by the European Council shall be taken into account. The conditions of admission and the adjustments to the Treaties on which the Union is founded, which such admission entails, shall be the subject of an agreement between the Member States and the applicant State. This agreement shall be submitted for ratification by all the contracting States in accordance with their respective constitutional requirements. Art. 4 COE…..  Different concepts  The idea of Europe  Modern nation State  Social market economy, progress, civilisation, culture  European Union  Union: legal standpoint/legal system establishes to face contemporary problems and attain objectives that individual States felt unable to achieve by themeselves  European: European ideal and culture/heritage  The idea of a European Union  Proposals for a “united Europe” (XVII and XIX centuries)  I World War and II World War  Enduring nationalism among European States would constitutes a permanent threat to peace  Market and peace (and then something more than common market…legal and rights integration)  EU Law: Two Dimensions – institutional and normative  ‘International Legal System’ (decentralization of powers) or ‘national legal system’ (centralization of powers)? None of them, but a “supranational legal system”, neither international law nor national law.  Highly specialised: theoretically (scholarship, textbooks, law journals, conceptual and methodological autonomy, vis-à-vis international law and national law) + legally (several areas of EU’s competence) + culturally (EUI, College of Europe). civilization is indispensable to the maintenance of peaceful relations. In taking upon herself for more than 20 years the role of champion of a united Europe, France has always had as her essential aim the service of peace. A united Europe was not achieved and we had war. Europe will not be made all at once, or according to a single plan. It will be built through concrete achievements which first create a de facto solidarity. The rassemblement of the nations of Europe requires the elimination of the age-old opposition of France and Germany. Any action taken must in the first place concern these two countries. With this aim in view, the French Government proposes to take action immediately on one limited but decisive point. It proposes to place Franco-German production of coal and steel as a whole under a common higher authority, within the framework of an organisation open to the participation of the other countries of Europe. The pooling of coal and steel production should immediately provide for the setting up of common foundations for economic development as a first step in the federation of Europe, and will change the destinies of those regions which have long been devoted to the manufacture of munitions of war, of which they have been the most constant victims. The solidarity in production thus established will make it plain that any war between France and Germany becomes not merely unthinkable, but materially impossible. The setting-up of this powerful productive unit, open to all countries willing to take part and bound ultimately to provide all the member countries with the basic elements of industrial production on the same terms, will lay a true foundation for their economic unification. This production will be offered to the world as a whole without distinction or exception, with the aim of contributing to raising living standards and to promoting peaceful achievements. Europe, with new means at her disposal, will be able to pursue the realisation of one of her essential tasks: the development of the African Continent. In this way there will be realised simply and speedily that fusion of interests which is indispensable to the establishment of a common economic system; it may be the leaven from which may grow a wider and deeper community between countries long opposed to one another by sanguinary divisions. By pooling basic production and by instituting a new higher authority, whose decisions will bind France, Germany, and other member countries, this proposal will lead to the realisation of the first concrete foundation of a European federation indispensable to the preservation of peace. ……….  European Coal and Steel Community (ECSC) (Paris Treaty signed in 1951, and entered into force in 1952, for 50 years, no more in force since July 2002): common production and common market of coal and steal, free competition, no customs duties nor quantitative restrictions on coal and steal, no public subsidies, no discrimination.  Four joint institutions: High Authority (independent members, empowered to adopt binding decisions towards States and undertakings), Assembly (representatives of national parliaments), Council of Ministers, Court of Justice.  EDC (1952 Paris Treaty: army, budget and joint institutions), but rejected by the French National Assembly: never entered into force. PART 1 THE ORIGIN OF EUROPEAN INTEGRATION EEC AND EURATOM TREATIES  Spaak Committee: the failure of EDC pushed again the functionalist method.  European Atomic Energy Community (EAEC) and European Economic Community (ECC): Rome Treaties signed in 1957 and entered into force in 1958 (no temporary limits)  Economic aims/economic liberalism/progressive establishment of a common market and a custom union (EEC=generalist approach): no custom duties among Member States + one external custom tariff + freedoms of movement (goods, persons, services, capital) + free competition + common commercial policy + countervailing social market policies: public intervention in weaker sectors of economy, weaker sections of society, less developed geographical areas (i.e. agriculture, social policy, transports, regional policies).  Through the market (economic aim) greater peace (political aim).  International Law? No, a different legal order. Transfer of sovereign legislative powers (a) individuals at the heart of EEC, not only States (European Court of Justice, van Gend en Loos, 5.2.1963 talking about the EEC: “institution endowed with sovereign rights, the exercise of which affects Member States and also their citizens”, therefore “the Community constitutes a new legal order of international law […] the subjects of which comprise not only Member States but also their nationals”); (b) application of constitutional principles such as supremacy of EEC Law (European Court of Justice, Costa c. Enel, 15.7.1964: “independent source of law that could not, because of its special and original nature, be overridden by domestic legal provisions” and can be invoked directly by individuals) (e-learning).  Parliamentary Assembly and Court of Justice in common with ECSC + independent Council of Ministers and Commission (until 1965 Brussels Treaty, afterwards same institutions for all three Communities).  Location: Strasburg, Luxembourg, Brussels  Institutions  Commission: initiative in law making, control, negotiation with third States; Council: law making, weighted power of vote; Parliament political supervision; Court of Justice: judicial powers.  Institutional and substantive parts  Countervailing trends: own resources (1970), European Council (1974), Parliament with direct elections (1979) Departing from pure intergovernmentalism, the Treaty of Amsterdam introduced a first major shift towards communitarization by transferring the fields of asylum, immigration, external border controls and civil law matters to the I pillar under Title IV. Still, for a transitional period of five years, the competences for the supranational EU institutions were constrained and unanimity voting was kept in the Council. The Council was the dominant actor in the intergovernmental co-operation and has found it easier to prevail in the altered structural environment and to co-opt or sideline actors with competing rationales. The Treaty of Lisbon ended this institutional development by introducing the Community method also in police and judicial co-operation in criminal matters. In the first period after the Area of Freedom, Security and Justice (AFSJ’s) communitarization, scholars assumed a ‘rights-enhancing’ effect to be stimulated by treaty reforms. According to Kaunert and Léonard (2012, p. 1405), for instance, the strengthened role of the EU’s supranational institutions‘has reinforced the liberal character of the EU asylum venue, which renders the adoption of more restrictive asylum provisions less likely’. From this perspective, the period when Member States could enhance their discretion and power was only transitory. The supra-national EU institutions would now play a more powerful role and drive the evolution of different AFSJ sub-policies in a direction not necessarily foreseen or desired by Member States EARLY ENLARGEMENTS and 2001 Nice Treaties; nowadays ‘ordinary legislative procedure’) + appointment in the Commission.  ECB and European system of Central Banks  Parliamentary Ombudsman.  Substantive changes (more broad projects of integrations): not only trade, economic and financial fields, but also social, human and cultural fields of integration (in fact EEC was named European Community)  European citizenship and legal protection of fundamental rights (nowadays art. 6.3. TEU)  New areas of competence with social relevance: culture, education, public health, consumer protection  Economic and Monetary Union: Art. 98 – 124 EC (conditions and stages to introduce a Single European currency euro).  Europe à la carte (differentiated integration: social policy, no UK + euro: No UK, Denmark and Ireland + possibility not to participate in specific developments of European integration by means of opting- out or of opting-in). NICE TREATY, EURO AND FURTHER ENLARGEMENTS  NICE Treaty signed in 2001 and entered into force in 2003  1st Pillar: ‘co-decision’ and ‘enhanced cooperation’ extended  2nd and 3rd Pillar: no changes  Nice Charter of Fundamental Rights of the EU adopted in 2000 (by Parliament, Commission and Council): not binding  1st January 2002: Euro as a common currency of a group of MS  Not all MS have adopted euro (excluded Denmark, Sweden, Ireland, UK, Croatia, Czech Republich, Poland, Bulgaria, Hungary, Romania)  Enlargement:  2004: 10 new Member States (Cyprus, Malta, Estonia, Latvia, Lithuania, Hungary, Poland, Czech Republich, Slovenia, Slovakia) PART 2 EUROPEAN UNION INSTITUTIONS COUNCIL  Art. 16 TEU + Artt. 237 – 243 TFEU Article 16 TEU 1. The Council shall, jointly with the European Parliament, exercise legislative and budgetary functions. It shall carry out policy-making and coordinating functions as laid down in the Treaties. 2. The Council shall consist of a representative of each Member State at ministerial level, who may commit the government of the Member State in question and cast its vote. 3. The Council shall act by a qualified majority except where the Treaties provide otherwise. 4. As from 1 November 2014, a qualified majority shall be defined as at least 55 % of the members of the Council, comprising at least fifteen of them and representing Member States comprising at least 65 % of the population of the Union. A blocking minority must include at least four Council members, failing which the qualified majority shall be deemed attained. The other arrangements governing the qualified majority are laid down in Article 238(2) of the Treaty on the Functioning of the European Union. 5. The transitional provisions relating to the definition of the qualified majority which shall be applicable until 31 October 2014 and those which shall be applicable from 1 November 2014 to 31 March 2017 are laid down in the Protocol on transitional provisions. 6. The Council shall meet in different configurations, the list of which shall be adopted in accordance with Article 236 of the Treaty on the Functioning of the European Union. The General Affairs Council shall ensure consistency in the work of the different Council configurations. It shall prepare and ensure the follow-up to meetings of the European Council, in liaison with the President of the European Council and the Commission. The Foreign Affairs Council shall elaborate the Union's external action on the basis of strategic guidelines laid down by the European Council and ensure that the Union's action is consistent. 7. A Committee of Permanent Representatives of the Governments of the Member States shall be responsible for preparing the work of the Council. 8. The Council shall meet in public when it deliberates and votes on a draft legislative act. To this end, each Council meeting shall be divided into two parts, dealing respectively with deliberations on Union legislative acts and non-legislative activities. 9. The Presidency of Council configurations, other than that of Foreign Affairs, shall be held by Member State representatives in the Council on the basis of equal rotation, in accordance with the conditions established in accordance with Article 236 of the Treaty on the Functioning of the European Union. TFEU -SECTION 3 THE COUNCIL Article 237 (ex Article 204 TEC) The Council shall meet when convened by its President on his own initiative or at the request of one of its Members or of the Commission. Article 238 (ex Article 205(1) and (2), TEC) 1. Where it is required to act by a simple majority, the Council shall act by a majority of its component members. 2. By way of derogation from Article 16(4) of the Treaty on European Union, as from 1 November 2014 and subject to the provisions laid down in the Protocol on transitional provisions, 26.10.2012 Official EN Journal of the European Union C 326/153 where the Council does not act on a proposal from the Commission or from the High Representative of the Union for Foreign Affairs and Security Policy, the qualified majority shall be defined as at least 72 % of the members of the Council, representing Member States comprising at least 65 % of the population of the Union. 3. As from 1 November 2014 and subject to the provisions laid down in the Protocol on transitional provisions, in cases where, under the Treaties, not all the members of the Council participate in voting, a qualified majority shall be defined as follows: (a) A qualified majority shall be defined as at least 55 % of the members of the Council representing the participating Member States, comprising at least 65 % of the population of these States. A blocking minority must include at least the minimum number of Council members representing more than 35 % of the population of the participating Member States, plus one member, failing which the qualified majority shall be deemed attained; (b) By way of derogation from point (a), where the Council does not act on a proposal from the Commission or from the High Representative of the Union for Foreign Affairs and Security Policy, the qualified majority shall be defined as at least 72 % of the members of the Council representing the participating Member States, comprising at least 65 % of the population of these States. 4. Abstentions by Members present in person or represented shall not prevent the adoption by the Council of acts which require unanimity. Article 239 (ex Article 206 TEC) Where a vote is taken, any Member of the Council may also act on behalf of not more than one other member. Article 240 (ex Article 207 TEC) 1. A committee consisting of the Permanent Representatives of the Governments of the Member States shall be responsible for preparing the work of the Council and for carrying out the tasks assigned to it by the latter. The Committee may adopt procedural decisions in cases provided for in the Council's Rules of Procedure. 2. The Council shall be assisted by a General Secretariat, under the responsibility of a Secretary General appointed by the Council. The Council shall decide on the organisation of the General Secretariat by a simple majority. 3. The Council shall act by a simple majority regarding procedural matters and for the adoption of its Rules of Procedure. C 326/154 EN Official Journal of the European Union 26.10.2012 Article 241 (ex Article 208 TEC) The Council, acting by a simple majority, may request the Commission to undertake any studies the Council considers desirable for the attainment of the common objectives, and to submit to it any appropriate proposals. If the Commission does not submit a proposal, it shall inform the Council of the reasons. Article 242 (ex Article 209 TEC) The Council, acting by a simple majority shall, after consulting the Commission, determine the rules governing the committees provided for in the Treaties. Article 243 (ex Article 210 TEC) The Council shall determine the salaries, allowances and pensions of the President of the European Council, the President of the Commission, the High Representative of the Union for Foreign Affairs and Security Policy, the Members of the Commission, the Presidents, Members and Registrars of the Court of Justice of the European Union, and the Secretary-General of the Council. It shall also determine any payment to be made instead of remuneration. To ascertain whether the provisions of an international treaty extend so far in their effects it is necessary to consider the spirit, the general scheme and the wording of those provisions. The objective of the EEC Treaty, which is to establish a Common Market, the functioning of which is of direct concern to interested parties in the Community, implies that this Treaty is more than an agreement which merely creates mutual obligations between the contracting states. This view is confirmed by the preamble to the Treaty which refers not only to governments but to peoples. It is also confirmed more specifically by the establishment of institutions endowed with sovereign rights, the exercise of which affects Member States and also their citizens. Furthermore, it must be noted that the nationals of the states brought together in the Community are called upon to cooperate in the functioning of this Community through the intermediary of the European Parliament and the Economic and Social Committee. In addition the task assigned to the Court of Justice under Article 177, the object of which is to secure uniform interpretation of the Treaty by national courts and tribunals, confirms that the states have acknowledged that Community law has an authority which can be invoked by their nationals before those courts and tribunals. The conclusion to be drawn from this is that the Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals. Independently of the legislation of Member States, Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. These rights arise not only where they are expressly granted by the Treaty, but also by reason of obligations which the Treaty imposes in a clearly defined way upon individuals as well as upon the Member States and upon the institutions of the Community. With regard to the general scheme of the Treaty as it relates to customs duties and charges having equivalent effect it must be emphasized that Article 9, which bases the Community upon a customs union, includes as an essential provision the prohibition of these customs duties and charges. This provision is found at the beginning of the part of the Treaty which defines the 'Foundations of the Community'. It is applied and explained by Article 12. The wording of Article 12 contains a clear and unconditional prohibition which is not a positive but a negative obligation. This obligation, moreover, is not qualified by any reservation on the part of states which would make its implementation conditional upon a positive legislative measure enacted under national law. The very nature of this prohibition makes it ideally adapted to produce direct effects in the legal relationship between Member States and their subjects. The implementation of Article 12 does not require any legislative intervention on the part of the states. The implementation of Article 12 does not require any legislative intervention on the part of the states. The fact that under this Article it is the Member States who are made the subject of the negative obligation does not imply that their nationals cannot benefit from this obligation. ……. It follows from the foregoing considerations that, according to the spirit, the general scheme and the wording of the Treaty, Article 12 must be interpreted as producing direct effects and creating individual rights which national courts must protect. THE DIRECT EFFECT OF SECONDARY LAW  Regulations and decisions: vertical and horizontal direct effect (as to decisions: dictly effective against whomever they are addressed)  And directives?  Art. 288 TFEU: no direct effect (normally) due to Member States discretion in their implementation  When do directives have direct effect? Deadline passed without implementation or incorrect implementation + clear, precise and unconditional obligations (Van Duyn case (1974))  Why can directives have direct effect? Binding force (more effectively enforced if individuals can rely on them) + estoppel argument (Van Duyn case (1974) / Ratti case (1979))  Vertical/horizontal distinction (Marshall case (1986))  Why not horizontal? Not addressed at individuals + difference with regulations (Faccini Dori case (1994))