Summary of the book ABC of Eu Law, Sintesi del corso di Diritto dell'Unione Europea

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EU LAW -> 3 groups of organizations 1) OEEC -> OCSE, NATO 2) COUNCIL + Organization for security and cooperation OSCE 3) European Union EU foundation-> Robert Shuman 1950 coal and steel community, 1951 treaty of Paris Treaty of Rome 1992)Treaty of Maastricht: replaced the organization under the same umbrella, the development of the EU started on the basis of 3 pillars: 1) EEC+ECSC+Eurotam 2) Cooperation among members under common foreign and security policy 3) Cooperation among member state in justice and foreign affairs. 1993/2003)Treaty of Amsterdam and Nice: preserving EU’s capacity for effective action 2001: Declaration on the future of Eu, opened the road to a constitution but this process failed in 2004. 2007/2009: Treaty of Lisbon: All previous treaties were replaced by a single text that defines the competences between Eu and member states: • Future common foreign and security policy • New role of the national parliaments • Incorporation of the Charter of Human Rights In this moment the EU union replaced the Europe Community and 3 TREATIES are in force: TEU: Common provisions, Provisions on democratic principles, Provisions on institutions, on enhanced cooperation, General provisions on the Union’s external action and specific provisions on the common foreign and security policy TFEU: The main focus is external action, and it introduced new chapters concerning energy policy, police and judicial cooperation in criminal matters, astronautics, sport and tourism Treaty on Atomic energy Commuinity: The TEU and TFEU have the same legal standing, they do not have constitutional character. Accession criteria: democracy, market, ability to take obligations. Accession procedure: offered at the prospect of the membership, official candidate status, forma accession, negotiation, ratification). Parliament vote with an absolute mayority, Council unanimous approval, Ratification by member states. Withdrawal possibility EU presents -> FUNDAMENTAL VALUES, FREEDOMS, RIGHTS VALUES OF EU TEU, Article 2. EU is founded on the basis of respect for human dignity, freedom, democracy and equality. The Eu is a guarantor of peace and Unity and Equality are the main theme in order to establish an economic order, with the guarantee of an equal treatment among the states. The violation of these principles and values are penalized in the Article 7 of TEU, where the Heads of the State must unanimously determine the existence of a serious violation AIMS OF EU TEU, Article 3, promote peace, well-being, establish and area of security and justice, freedom of movement with respect to external borders control, asylum, immigration. Establishment of an internal market for sustainable development based on balanced economic growth and price stability, full employment, highly competitive social marketing, social progress and quality of life and environment protection. It shall fight against social exclusion and discrimination, promoting social justice and solidarity. Respect the cultural diversity. Promote social justice, security, protection, social and territorial cohesion. Establish an economic and monetary union with a free and fair trade with human rights protection. FREEDOMS OF EU Peace, Unity and Equality bring to Freedom. The 28 states get the freedom of movements between the national borders, including job, establishment, access to services, free movements of good and capital. Freedom of business decision-making. People can change job within Europe according with their interests. the Treaty in particular regards movement of workers, service and freedom of establishment. o Freedom of movement is guaranteed among MSs; freedom for workers, o establishment, of goods and capital. Freedom of competition is supposed to improve consumer options o The accession treaty allows for “old” members to use transitional laws concerning the freedoms for up to 7 years upon a new accession SOLIDARITY It is the corrective of freedom; the advantages are shared fairly btw the member states. NATIONAL IDENTITY National identity of each state is respected. SECURITY The values are related to security. Eu’s external borders protection and also Job security and Business security. Police and judicial cooperation must be consolidated. RIGHTS Human rights declaration. The legal system is based on the rule of law and respect for dignity, freedom and right to self-development of the individuals. In 1969 the CJEU established a body of case law for fundamental rights protection The case of Stauder Judgement. With this case for the first time the European Court of justice recognised the existence of and Eu framework of fundamental rights and applied it. At the beginning the Court developed the safeguards for fundamental rights from a number of treaties. For instance, art.18 TFEU there is the prohibition of national discrimination etc. The European Court on Human Rights (ECHR), helped to shape the substance of the human right in the union and their protection. On this bases the Court recognized a range of freedoms as basic rights secured by the Union Law (protection of family, freedom of opinion, religion etc). Important is the principle of equal treatment. TASKS OF EU (Fields of competence) Economics: creating a common single market, backed up by an economic and monetary union, coordinate the national economic policies so the national one cannot have negative repercussions for the operation of the single market. Stability and Growth Pact was adopted to give MS criteria on how to avoid penalties. CRISIS MECHANISM: a semester cycle in which Eu members coordinate their economic and fiscal policy. Monetary Policy: introduce a single currency in EU and control monetary issues centrally. 1999 euro. Social Policy: introduced of a social security system for migrant workers (relating to persons that worked in more than one MS, pensions, health care and unemployment/family benefits) Politics: Union Citizenship (can move freely within EU, can vote and stand as a candidate in local elections, can be protected by diplomatic and consular authorities of any MS, can make petition to European Parliament, has right to be treated by all MS in same way as they treat their nationals) Van Gen&Costa Enel case -> EU CONSTITUTION TASKS: Economic Social Political POWERS Art.2 TFEU Specific conferment. Exclusive/Shared Supportive PRINCIPLES: Subsidiary Poportionality Earning Warning System Institutions Art.3 TEU EP, EC, Council, CJ, Central Bank, Court of Auditors, Advisory bodies SOURCES I- Treaties II- Legislative acts, Non legislative acts, non binding instruments, not legal acts III- Agreement EU/Not EU IV- unwritten Law V- Agreements btw MS MEANS OF ACTION Regulations Directives Decisions Reccomendation/Opinion Resolution/Declaration Action programmes/Publications Legislative procedure Ordinary Special Approval ..... Policy on Judicial cooperation in criminal matters: fight against organized crime, preventing trafficking in human being, prosecuting criminal offense, corruption. 1998, was founded the Europol (european police authority) and in 2003- Eurojust, a team of magistrates and prosecutors from all EU countries investigating and prosecuting serious cross-border crimes. Common foreign and security policy: safeguarding values, interests, independence of EU, strengthening security of EU and members state, granting peace, international security, promoting intern. cooperation, democracy, rule of law, safeguard of basic HR and establishing a common defence) A PROBLEM IS THAT NOT ALL MS ARE PAR OF NATO& WEU. POWERS OF EU The treaties establishing the Eu does not confer to the Union institutions any general power. Eu and its institutions don't have the power to decide on their legal basis and competencies, by there is the principle of specific conferment of powers (art.2 TFEU). The member states choose this method in order to monitoring better the surrounding of their power. The specific conferment of power varies depending on the nature of the tasks. For instance, the Eu treaty explicitly states that matters of national security stay under the exclusive authority of the member state. For this it is important divide the Eu competences and Member states competencies. There are 3 categories of competence: 3 types of competence: 1) Exclusive competence of EU: a measure at Eu level can be more effective than at national level such as customs union, rules for internal market’s function, monetary policy or common commercial policy and common fishery policy. 2) Shared competences between EU & Member States: an action at European level will add more value over action by Member states, EU can exercise competence first and MS exercise their competence to the extent that EU has not exercised, like internal market rules, economic, social&territorial cohesion, agriculture&fisheries, environment, transport, trans-European network, energy, freedom, security&justice, common safety, research&technological development, humanitarian aid) 3) Competence to carry out supportive action: it is limited to providing complementary action of MS, EU cannot harmonize national law in concerned areas, thus MS have freedom to act and responsibility to draft legislation, such as protection and improvement of human health, industry, culture, tourism, education, civil protection, administrative cooperation. Union Treaties confer defined powers to the institution but these powers do not involve the tasks external to the objectives of the treaties and cannot be extended to the detriment of the member states. For exercising these powers, the EU is governed by the subsidiary principle and the proportionally principle. - Subsidiary: EU must act where the object to be pursued can be better attained at Union level. Union institutions must demonstrate that there is a real need for a common action - Proportionally: The choose of the forma and intensity the union rules should be taken are based on this principle that evaluates the need of a specific legal instrument. Principle of subsidiarity and principle of proportionality can check compliance(conformità) by national parliaments through the EARLY WARNING SYSTEM, where the Parliament takes a position with a EU proposal. This proposal can be amended or withdrawn. THE INSTITUTIONS OF EU Art.13 TEU: Union should have an institutional framework to promote values, serve interests and objectives on its citizens and member states. The European Institution are: - European Parliament - European Council - Council - European Commission - Court of Justice of EU - European Central Bank - Court of Auditors These must act within the limits of the powers conferred on in Treaties, practicing mutual sincere cooperation. In the TFEU there are provisions relating European Central Bank, Court of Auditors and other institutions. European Parliament, Council and Commission must be assisted by an Economic and Social Committee and committee of the regions. EUROPEAN PARLIAMENT (1958) Strasburg • Represents people of Member states • Parliamentarians elected every 5 years. Direct election since 1979. • 705 members (751 with UK), Austria 16. Italia 73. • President elected every 2,5 years. David Sassoli (PD). • +14 vice-presidents and 5 questors • Not executive power • Role of co-legislator with Council • It can put forwards amendments and get them accepted by the Council • Budget decision (Treaty of Lisbon -> multiannual financial plan) • Assent International agreements and Accession Treaties • Supervisory power is growing • Political group organize the work in the Parliamentary • Political Parties • Once a month there is a plenary session in Strasbourg but additional session may be held, or emergency sessions for current major issues. • shorter sessions are held in Brussels (1-2 days) • Absolute majority of votes is usually sufficient for a decision to be taken, but for a whole range decision to be adopted, absolute majority of all Members of Parliament. • Meeting for Parliament’s Secretariat-General to be based in Luxembourg STRUCTURE It is not part of the government of the EU (made by Council and Commission). Democratic gap. The number of seats is allocated on the basis of the Member States population size. The Min. number of seats per MS is 6 and max. 96. list of the members of the commission and a qualified majority in the Council can appoint the High Representative of the Union for Foreign Affairs and Security Policy. The new president of the commission and council reach an agreement on the candidates for the High Representative. The Parliament must give its assent with simple majority. Council-> President and members of commission by qualified majority High Representative -> president, Council and assent of Parliament with a simple majority Bruxelles a strasburgo riunioni settimanali commissari COURT OF JUSTICE (Court) It is an independent authority that supervises all the Eu system, composed by 27 judges, 11 advocates appointed by heads of governments, 6 years in charge. All the Judicial work is carried out on two levels: - Court of Justice as the highest judicial authority in matters of Eu Law. - General Court - +Specialised court for civil service cases attached to the GC. TASKS General: to ensure that the law is observed in the interpretation and application of the Treaties. It involves the area of monitoring, interpreting and shaping Eu law. Court works with legal advice and adjudication. The first one is provided in the form of binding opinions on agreements. The second one, regards matters that in the Member States would be assigned to different type of court. CJ acts like constitutional court, administrative curt, labour, fiscal and civil court. The General Court (Tribunal) It is a constituent of the CJEU but It presents its own registry and procedure. Their cases (originally juts a limited number) are identified by a Tribunal, in the CJEU by a Court. TASKS actions for annulment and actions for failure brought by a natural and legal person against the Eu, or action brought by member states against commission. EUROPEAN CENTRAL BANK All the European System of Central Bank is composed by the ECB and the central bank of the member states. The ECB is based in Frankfurt and its main task is to maintain stability of the European currency and control the amount of currency in circulation. Numerous legal provisions guarantee its independence, the ECB doesn’t take instruction by the Eu body in exercising its power. Tasks: maintain the stability of the Eu currency, control the amount of currency in circulation, implementing and defining the monetary policy of Eu, printing banknotes and coins. COURT OF AUDITORS It is composed by 27 members (member states), appointed for 6 years by the Council. The members elect the President for 3 years. Tasks: examine revenue and expenditure, manage the finance and can public it doing an annual report. (official journal of the EU). ADVISORY BODIES - European Economic and Social Committee: the purpose it to represent the various economic and social groups, in the Eu institution. 350 members, appointed for 5 years from the Council, divided into 3 groups of employers, workers and other part of civil society. They work closely to the committees of Eu parliament. They are important because they are involved in certain circumstances of the legislative process in order to take into account the divergent viewpoints. - Committee of Regions of the European Union: advisory function. 350 members representatives of regional and local authorities of Eu members. The Council can consult the committee in different fields: education, health, transport etc. - European Investment Bank: provides loans and guarantees in all economic sectors to promote the development of less-developed regions, creating new job and assisting project of common interests for the member states THE LEGAL ORDER OF THE EUROPEAN UNION (sources) The constitution of the EU can be brought to life only through Union law, which unites Europe by law. It is based on the common economic and social life of the people of the member states governed by the UE law. The UE institutions regulate and shape regulations, directives and decisions with legal instrument that bind the members state and its citizens, according rights and obligations. The Legal Sources of Union Law: is the will to preserve peace and closer economic ties. PRIMARY SOURCE OF UNION LAW (I source) The treaties that set the constitutional framework of the EU are: - Maastricht, Amsterdam, Nice and Lisbon, that contain Eu objectives, organization and modus operandi. - Charter of Fundamental Human Rights of the EU - The Union law defines the relationship between EU and member states, that have to ensure the fulfilment of the obligations arising from the treaties (Principle of Cooperation). They must facilitate the achievement of the EU’s task and ignore any measure that can endanger the attainment of objectives of Treaties. II SOURCE : EU LEGAL INSTRUMENT The Eu Law is made by the European institutions through the exercising of the power that consists in Legislative Acts (adopted by ordinary legislative procedure) and Non legislative Acts (adopted by delegated acts). - Legislative Acts: Regulations, Directives, Decisions - Non legislative Acts: Simple legal instruments, delegated acts, implementing acts - Non-binding instruments: recommendation and opinions. - Acts that are not legal acts: Interinstitutional agreements, Resolutions, declarations and action programmes. III SOURCE: AGREEMENT OF EUR WITH NON-MEMBER COUNTRIES These agreements are: • Association agreements, that are close economic cooperation and financial assistance from EU for the concerned country. There are three types of this group of agreement: - special link between Member States and non. For instance, the EU-ACP partnership agreement between EU and 70 States in Africa/Caribbean/Pacific which recently converted into a set of economic partnership agreements, giving ACP countries free access to European Internal market. - Agreements as preparation for accession to the Union for the establishment of customs unions. - Agreement on the European Economic Area (EEA) these brings the remaining countries in the European Free Trade Association into the internal market and by requiring them to incorporate 2/3 of EU’s legislation, approaching the accessions. Non legislative Acts(regulations/directives/decision), are published in the series C=communication). Other directives addressed; decisions are notified to those to whom they are addressed Non-binding instrument, no obligation to publish in the official Journal (Notices). EU’S LEGISLATIVE PROCESS The Treaty of Lisbon reorganized and restructured the Legislative Procedure. The Council and the Parliament have power of co-decision in which legislative acts are adopted by the European Parliament with the participation of the Council. SPECIAL LEGISLATURE PROCEDURE-> decision by one with the participation of the other APPROVAL PROCEDURE-> EP have the final decision on the entry into force of a legal instrument, it can’t propose amendments, it can only accept or reject SIMPLIFIED PROCEDURE-> Legal act are adopted by simple majority of an union institution without a commission proposal. It is usually used for the adoption of non-binding instruments (like recommendation and opinions). ORDINARY LEGISLATURE PROCEDURE 1) Formulation: A simple majority of the commission approves a proposal draws up the Commission. Then, the proposal is sent simultaneously to the Council and the Parliament. 2) Parliament: there is a plenary session for discussing the proposal. The result is an opinion of acceptation or rejection. Then, Parliament sent its position to the Council. 4) 3) Council: if approves the parliament position, the act is adopted. If they reject the proposal, the Council sends its position to the Parliament that has 3 months to approve it, reject it or make amendments. 5) If the Parliament accept it, the act is adopted in the form proposed by the Council. 6) If the Parliament rejects it, the process end without the adoption of the act. 7) If the Parliament makes amendments, they are sent to the Council, that has other 3 months for deciding if approve it or reject it (and then start the conciliation procedure), and to the commission. CONCILIATION PROCEDURE: it is initiated by the President of the Council according with the President of the European Parliament. Central is the Conciliation Committee, composed by 28 representatives from council and parliament. Its task is reaching agreement on a joint text by a qualified majority within 6 weeks. It acts like a mediator of the positions btw parliament and Council, if there is no agreement the act is not adopted. THIRD LECTURE: If the committee approves the text, the European Parliament and Council have 6 weeks for adopting the act. The President of the Parliament has to sign the text and then, there is the publication. This co-decision procedure is really important because it put the Parliament and the Council in an equal position inside the legislative process. SPECIAL LEGISLATIVE PROCEDURE It is made by the Council acting unanimously for a proposal done by the commission after consulting the Parliament, or by the Parliament adopting a legal act after obtaining the approval of the Council. There are two kind of bridging clauses for switching to the special legislative procedure in some policy areas: the general bridging clause that applies to all policy area with the unanimity of the Council and the specific bridging clause applied to specific policy areas. APPROVAL PROCEDURE In this case the proposal can only be adopted with the approval of the Parliament. The Parliament cannot propose any amendments, it can only accept or reject the proposal. This procedure can be special or simplified for adopting binding, non-legislative acts. PROCEDURE FOR ADOPTING NON-LEGISLATIVE ACT It is simplified procedure in which an Eu institution adopts a legal act with its own powers. It is applied for binding legislative acts and non-binding legislative acts, (recommendation and opinion). PROCEDURE FOR ADOPTING DELEGATED ACTS AND IMPLEMENTING ACTS Parliament and Council confer legislative and implementing powers on the Commission. The adoption of delegated acts is carried out by the commission on the basis of a special authorization provided by the Parliament. The subject of the delegation consists only in the amendment of certain non-essential elements of a legislative act. These acts cannot compromise the purpose of a legislative act because must only supplement a legislative act. Moreover, the delegation of power may be given a limitation of time or it may be revoked. THE ADOPTOIN OF IMPLEMENETING ACTS Parliament and Council are the main Eu legislator, they control the exercise of implementing powers and the adoption of the implementing acts by the Commission. Parliament and Council have access to the delegated acts and lies with the member states in case of implementing acts, in line with their responsibility. For this, the Eu legislator laid down some rules for control and exercise the implementing powers. There are two comitology procedures: - Advisory procedure, with a committee that delivers not binding opinions - Examination procedure, where the comitology committee votes on the commission draft for implementing measures by a qualified majority. If it is approved, the committee adapt the measures, if not, the committee may submit a new draft. In this case there is there a second instance in the examination procedure: the appeal committee, where the purpose is to reach a compromise btw the commission and the representatives of the member states. If there is no decision, the committee can adopt the draft. EU SYSTEM OF LEGAL PROTECTION It recognizes the right of the individual to effective judicial protection of the right derived from Eu law. The right is codified in the Article 47 of the Charter of Fundamental Rights, guarantee by the Court of Justice and General Court that compose the Eu legal system. Treaty of infringement proceedings (Court of Justice) This procedure established if a member state has failed to fulfil an obligation, it is conducted by the Court of Justice. The initiative is usually taken by the commission or one-member state and the Court of Justice decides where the treaties has been infringed. If the Court highlights one infringement, at first the state offending state has to take measures needed to conform, and if it fails, it has to pay a penalty (financial implication), or lump-sum fine. VS MEMBER STATE DOES NOT COMPLAIN AN OBLIGATION Action for annulment The aim is to get the judicial control of the action of the Union institution and bodies and provide to citizen the access to EU justice. The Action for annulment can be lodged against all measures of the Union institution and bodies which produce binding effect that damage the interest of the other. Citizens only can do it but just if against decision personally addressed on them. They are conducted in the Court of Justice or the General Court that may declare the instrument void (not valid) with retroactive effect (or solely from the date of the judgement). However, the treaty of Lisbon presents another category of acts against which legal person can move, that are the regulatory acts. VS ONE MEASURE OF THE UNION INSITUTION THAT PRODUCE A DAMAGE ON CITIZEN Complaints for the failure to act art.265 Legal protection against the European Parliament/Council/Commission etc. The body that has infringed the Treaty by neglecting to take a decision required of it. It conducted on the Court of Justice, General Court that they can just declare it unlawful. PROTECTION VS COUNCIL/PARLIAMENT/COMMISSION Action for Damages art. 268 Citizens and Member states can take action against a fault committed by EU staff. They declare a damage received by the EU staff and conduct it on the Court of Justice, that decides the compensation in base of: Unlawful act done by UNION institution or a member’s staff where a rule of union law that confers rights have been infringed. Actual harm must have been suffered There must be a causal link between act and damages Intent or negligence do not have to be proved VS EU STAFF In the CJEU can be brought disputes between EU and its stuff member have to be solved by the specialized court for the civil service attacked to the General Court 5) Art. 41; freedom of goods. The direct application has also to be done in the principle of equal pat for men and women, prohibition of discrimination and freedom of competition. Secondary legislation: Secondary legislation is used to make changes to law if the existing Acts. It is used to fill in the details of Acts (primary legislation). These details provide practical measures that enable the law to be enforced and operate in daily life. The question of direct applicability arises in relation to directives and decisions addressed to Member States. In general, the direct effect of Union Law is important because improves the position of the individual by turning the freedoms of the common market into rights that may be enforced in a national court of law. It is one of the pillars of the Eu legal order. (In generale, l'effetto diretto del diritto dell'Unione è importante perché migliora la posizione dell'individuo trasformando le libertà del mercato comune in diritti che possono essere applicati in un tribunale nazionale. È uno dei pilastri dell'ordine giuridico dell'UE). Primacy of Union Law over national law What happens if a provision for Union Law brings rights and obligations to union citizen but it is in conflict with the national law? The only way is granting Union Law primacy and allow to substitute all national provisions that diverge from the Union. This is important in order to guarantee uniformity and the function of the EU system. However, the international law does not become part of a country’s legal order until it is incorporated, in this case, the issue is solved just on the bases of international law. However, there is different relation among international low and Eu Law. The Eu Law is not part of any national order, so every issue about law conflicts can be solved just on the basis of the Eu legal order. The Court made two observations regarding the relationship btw Union and National law: - Member states have transferred sovereign right set a community created by them and subsequent unilateral measures would be inconsistent with the concept of Union Law. - Principle of treaty that no member states can call into question the status of Union Law as a system uniformly and generally applicable. Union law has also primacy over any conflicting law of the Member States. No national laws may be introduced unless it is compatible with the union law. In general, the Court confirmed the principle of primacy also with regard to the relationship between Union Law and National constitutional law. However, in Netherlands, the primacy of union law over national statute law is expressly laid down in the constitution. (Italy initially refused the primacy of Eu Law). In order to avoid conflicts, all states bodies should initially draw the law based on the interpretation of national law in line with the Union law. Von Colson case: equal opportunities job ->Therefore, the Court of Justice ruled that the national courts were obliged to interpret and apply national legislation in civil matters in such a way there were effective penalties for discrimination on the basis of gender. The CJ attributes the legal basis for the interpretation of national law in line with Union Law to the general principle of sincere cooperation. Under this article Member states must take all the measures to ensure the fulfilment of the obligations arising out of the Eu Treaty or resulting from action taken by the Union Institutions. One form of interpretation of national law in accordance with Union law is the interpretation in accordance with directives, under which member states are obligated to implement directives. The interpretation of national law in accordance with the directives ensures that there is conformity with the directives at the level at which law is applied and ensure uniformity of eu law application among all the member states. However, national law may not be never interpreted contra legem.