The Evolution of European Union Law: From Paris to Lisbon, Sintesi del corso di Diritto dell'Unione Europea

Scarica The Evolution of European Union Law: From Paris to Lisbon e più Sintesi del corso in PDF di Diritto dell'Unione Europea solo su Docsity! The ABC of EU Law From Paris to Lisbon via Rome, Maastricht, Amsterdam and Nice Until shortly after the end of the Second World War our concept of the state and our political life had developed almost entirely on the basis of national constitutions and laws. It took the complete collapse of Europe and its political and economic decline to create the conditions for a new beginning and give a fresh impetus to the idea of a new European order. Since the Second World War have created a confusing mixture of complex organisations that are difficult to keep track of. They coexist without any real links between them. This variety of organisations only acquires a logical structure if we look at their specific aims. They can be divided into three main groups: First group: the Euro-Atlantic organisations : the Euro-Atlantic organisations came into being as a result of the alliance between the United States of America and Europe after the Second World War. It was no coincidence that the first European organisation of the post- war period, the Organisation for European Economic Cooperation (OEEC), founded in 1948, was created at the initiative of the United States. The United States Secretary of State at the time, George Marshall, called on the countries of Europe in 1947 to join forces in rebuilding their economies and promised American help. This came in the form of the Marshall Plan, which provided the foundation for the rapid reconstruction of western Europe. At first, the main aim of the OEEC was to liberalise trade between countries. In 1949, NATO was founded as a military alliance with the United States and Canada. The aim of NATO is collective defence and collective support. It was conceived as part of a global security belt to stem Soviet influence. Following the fall of the Iron Curtain in 1989 and the subsequent dissolution of the Soviet Union, the organisation has increasingly taken on the tasks of managing crisis and promoting stability. NATO has 28 member countries, consisting of 22 European Union (EU) Member States (not Austria, Sweden, Finland, Ireland, Malta and Cyprus) and the United States, Canada, Turkey, Norway, Iceland and Albania. Second group: Council of Europe and OSCE : the feature common to the second group of European organisations is that they are structured to enable as many countries as possible to participate. These organisations include the Council of Europe, which was founded as a political institution on 5 May 1949 and now has 47 members, including all the current EU Member States. Its statute does not make any reference to moves towards a federation or union, nor does it provide for the transfer or merging of sovereign rights. Decisions on all important questions require unanimity, which means that every country has a power of veto. The Council of Europe is therefore designed only with international cooperation in mind. Numerous conventions have been concluded by the Council in the fields of economics, culture, social policy and law. The most important — and best known — of these is the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) of 4 November 1950. The convention not only enabled a minimum standard for the safeguarding of human rights to be laid down for the member countries; it also established a system of legal protection which enables to condemn violations of human rights in the member countries. This group of organisations also includes the Organisation for Security and Cooperation in Europe (OSCE), founded in 1994. The OSCE, which currently has 57 participating states, alongside measures to build up trust between the countries of Europe, includes the creation of a ‘safety net’ to enable conflicts to be settled by peaceful means. Third group: European Union: the third group of European organisations comprises the EU. The feature that is completely new in the EU and distinguishes it from the usual type of international association of states is that the Member States have ceded some of their sovereign rights to the EU and have conferred on the Union powers to act independently. In exercising these powers, the EU is able to adopt European legislation which has the same force as national laws in individual states. The foundation stone of the EU was laid by the then French Foreign Minister Robert Schuman in his declaration of 9 May 1950, in which he put forward the plan he had worked out with Jean Monnet to bring Europe’s coal and steel industries together to form a European Coal and Steel Community (ECSC). This would, he declared, constitute a historic initiative for an ‘organised and vital Europe’, which was ‘indispensable for civilisation’ and without which the ‘peace of the world could not be maintained. The ‘Schuman Plan’ finally became a reality with the conclusion of the founding treaty of the ECSC by the six founding states (Belgium, Germany, France, Italy, Luxembourg and the Netherlands) on 18 April 1951 in Paris (Treaty of Paris). This Community was established for a period of 50 years, and was ‘integrated’ into the European Community when its founding treaty expired on 23 July 2002. The creation of the European Union by means of the Treaty of Maastricht (purpose: to prepare for European Monetary Union and introduce elements of a political union (citizenship, common foreign and internal affairs policy) marked a further step along the path to the political unification of Europe. Although the treaty was signed in Maastricht on 7 February 1992, a number of obstacles in the ratification process (approval by the people of Denmark only after a second referendum; legal action in Germany to have parliament’s approval of the treaty declared unconstitutional) meant that it did not enter into force until 1 November 1993. The treaty referred to itself as ‘a new stage in the process of creating an ever closer union among the peoples of Europe’. There are ‘three pillars’ upon which the European Union is built. The first pillar consisted of the European Communities. The second pillar consisted of cooperation between the Member States under the common foreign and security policy. The third pillar covered cooperation between the Member States in the fields of justice and home affairs. Further development came in the form of the Treaties of Amsterdam and Nice, which entered into force on 1 May 1999 and 1 February 2003, respectively. The aim of these reforms was to preserve the EU’s capacity for effective action even in a Union enlarged by a sizeable number of new members. The subsequent criticism from several quarters resulted in the start of a debate on the future of the EU and its institutional set-up. As a result, on 15 December 2001 in Laeken (Belgium), the Heads of State or Government adopted a Declaration on the Future of the European Union, in which the EU undertook to become more democratic, transparent and effective and to open the road to a constitution. The draft of the Treaty establishing a Constitution for Europe was officially submitted to the President of the European Council on 18 July 2003 and adopted, with various amendments, by the Heads of State or Government on 17 and 18 July 2004 in Brussels. The constitution was intended to turn the EU and the European Community as we knew them into a new, single European Union that would be based on a single constitutional treaty. However, this attempt at a constitution failed in the ratification process carried out by the Member States. Following a period of reflection of almost 2 years, a new package of reforms was launched in the first half of 2007. This reform package represented a formal move away from the idea of a European constitution under which all existing treaties would be revoked and replaced by a single text. Instead, a reform treaty was drawn up, which, like the Treaties of Maastricht, Amsterdam and Nice before it, made fundamental changes to the existing EU treaties in order to strengthen the EU’s capacity to act within and outside the Union, increase its democratic legitimacy and enhance the efficiency of EU action overall. In line with tradition, this reform treaty was named after the place where it was signed: the Treaty of Lisbon  main changes: more power for the European Parliament, change of voting procedures in the Council, citizens' initiative, a permanent president of the European Council, a new High Representative for Foreign Affairs, a new EU diplomatic service. The Lisbon treaty clarifies which powers: - belong to the EU Fundamental values of the European Union Article 2 TEU (values of the Union) The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to all Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail. Article 3 TEU (aims of the Union) (1) The Union’s aim is to promote peace, its values and the well-being of its peoples. (2) The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime. (3) The Union shall establish an internal market. It shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. It shall promote scientific and technological advance. It shall combat social exclusion and discrimination, and promote social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child. It shall promote economic, social and territorial cohesion, and solidarity among Member States. It shall respect its rich cultural and linguistic diversity and shall ensure that Europe’s cultural heritage is safeguarded and enhanced. (4) The Union shall establish an economic and monetary union whose currency is the euro. (5) In its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter. [...] The foundations of a united Europe were laid on fundamental ideas and values to which the Member States have subscribed in Article 2 TEU. These fundamental values include respect for human dignity, equality, freedom and solidarity. The EU’s avowed aims are to safeguard the principles of liberty, democracy and the rule of law which are shared by all the Member States, and to protect human rights. These values not only set the standard for countries wishing to join the EU in the future; serious and persistent breaches of these values and principles by a Member State can also be penalised pursuant to Article 7 TEU. First of all, the Heads of State or Government in the European Council must unanimously determine the existence of a serious and persistent breach of the values and principles of the Union. This determination is made by the Heads of State or Government on a proposal by one third of the Member States or by the European Commission, and after obtaining the assent of the Euro-pean Parliament. The Council may then, acting by a qualified majority, suspend certain rights deriving from the application of the EU Treaty and the TFEU to the Member State in question, including voting rights in the Council. On the other hand, the obligations on the Member State in question under the treaties continue to be binding. Particular account is taken of the effects on the rights and obligations of citizens and enterprises. The Eu as guarantor of peace There is no greater motivation for European unification than the desire for peace (cf. Article 3 TEU). In the last century, two world wars were waged in Europe between countries that are now Member States of the European Union. Thus, a policy for Europe means at the same time a policy for peace. The establishment of the EU created the centrepiece of a framework for peace in Europe that renders a war between the Member States impossible. The more European states that join the EU, the stronger this framework of peace will become. Unity and equality as the recurring theme Unity is the recurring theme. The major problems of the present can be mastered only if the European countries speak and act in unison, while preserving their diversity. Unemployment, inadequate growth, security of energy supply and environmental pollution have long ceased to be merely national problems. It is only in the context of the EU that a stable economic order can be established and only through joint European efforts that we can secure an international economic policy that improves the performance of the European economy and contributes to social justice. Without internal cohesion, Europe cannot assert its political and economic independence from the rest of the world, win back its influence on the international stage and regain its role in world politics. Unity can endure only where equality is the rule. No citizen of the Union may be placed at a disadvantage or discriminated against because of his or her nationality. Discriminatory treatment on the grounds of gender, race, ethnic origin, religion or beliefs, disability, age or sexual orientation must be combated. All Union citizens are equal before the law. As far as the Member States are concerned, the principle of equality means that no state has precedence over another, and natural differences such as size, population and differing structures must be considered only in accordance with the principle of equality. The fundamental freedoms Freedom results directly from peace, unity and equality. Creating a larger entity by linking 28 states affords at the same time freedom of movement be yond national frontiers . This means, in particular, freedom of movement for workers, freedom of establishment, freedom to provide services, free movement of goods and free movement of capital. The principle of solidarity Solidarity is the necessary corrective to freedom, for inconsiderate exercise of freedom is always at the expense of others. Solidarity between members as a fundamental principle  share both the advantages, i.e. prosperity, and the burdens equally and fairly among its members. Respect for national identity The national identities of the Member States are respected. The idea is not for the Member States to be ‘dissolved’ into the EU, but rather for them to contribute their own particular qualities. The need for security Particularly since the attack on the United States of 11 September 2001 and the growing number of increasingly vicious terrorist attacks in Europe, the fight against terrorism and organised crime in Europe has also been in the spotlight again. Police and judicial cooperation continues to be consolidated, and protection of the EU’s external borders intensified. However, security in the European context also means the social security of all citizens living in the EU, job security and secure general economic and business conditions. In this respect, the EU institutions are called upon to make it possible for citizens and businesses to work out their future by creating the conditions on which they depend. The fundamental rights The history of Europe has for more than 200 years been characterised by continuing efforts to enhance the protection of fundamental rights. Starting with the declarations of human and civil rights in the 18th century, fundamental rights and civil liberties have now become firmly anchored in the constitutions of most civilised states. This is especially true of the EU Member States, whose legal systems are constructed on the basis of the rule of law and respect for the dignity, freedom and the right to self-development of the individual. There are also numerous international conventions on the protection of human rights, among which the ECHR is of very great significance for Europe. It was not until 1969 that the CJEU established a body of case-law to serve as a framework of fundamental rights. The starting point in this case-law was the Stauder judgment , in which the point at issue was the fact that a recipient of welfare benefits for war victims regarded the requirement that they give their name when registering for the purchase of butter at reduced prices at Christmas as a violation of their human dignity and the principle of equality. Although the Court of Justice came to the conclusion, in interpreting the Union provision, that it was not necessary for recipients to give their name so that, in fact, consideration of the question of a violation of a fundamental right was superfluous, it finally declared that the general fundamental principles of the Union legal order, which the CJEU had to safeguard, included respect for fundamental rights. This was the first time that the Court of Justice recognised the existence of an EU framework of fundamental rights of its own. Initially, the Court developed its safeguards for fundamental rights from a number of provisions in the treaties. This is especially the case for the numerous bans on discrimination which, in specific circumstances, address particular aspects of the general principle of equality. Examples are the prohibition of any discrimination on grounds of nationality, preventing people being treated differently on the grounds of gender, race, ethnic origin, religion or beliefs, disability, age or sexual orientation, the equal treatment of goods or persons in relation to the four basic freedoms (freedom of movement of goods; freedom of movement of persons; the right of establishment; and freedom to provide services, freedom of competition and equal pay for men and women. The four fundamental freedoms of the Union, which guarantee the basic freedoms of professional life, can also be regarded as a Union fundamental right to freedom of movement and freedom to choose and practise a profession. Explicit guarantees are also provided for the right of association, the right to petition and the protection of business and professional secrecy. The Court of Justice has steadily developed and added to these initial attempts at protecting fundamental rights through Union law. Prominent among the latter is the ECHR, which helped to shape the substance of fundamental rights in the Union and the mechanisms for their protection. On this basis, the Court has recognised a number of freedoms as basic rights secured by Union law: right of ownership, freedom to engage in an occupation, the inviolability of the home, freedom of opinion, general rights of personality, the protection of the family (e.g. family members’ rights to join a migrant worker), economic freedom and freedom of religion or faith, along with a number of fundamental procedural rights such as the right to due legal process, the principle of confidentiality of correspondence between lawyer and client. Particular value is also attached to greater transparency, which means that decisions should be taken as openly as possible, and as closely as possible to the citizen. An important aspect of this transparency is that any EU citizen or legal person registered in a Member State may have access to Council or Commission documents. With all due respect to the achievements of the CJEU in the development of unwritten fundamental rights, this process of deriving ‘European fundamental rights’ had a serious disadvantage: the Court of Justice was confined to the particular case in point. It was therefore