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Theme 1. EU Law. European Integration

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Manuel Gimenez

on 26 September 2015

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Transcript of Theme 1. EU Law. European Integration

European Council (summit)

European Central Bank

Agencies

European Investment Bank

European Commission

Council of Ministers
(The Council)

Committee of the Regions

Economic and Social Committee

Court of Auditors

Court of Justice
European Parliament

The European Parliament
Theme 1. European Integration Process
1. International Organizations in the European Integration Process
Schuman declaration
1951. ECSC
1952. EDC
1957. Rome Treaty
1966. Empty Chair Crisis
1981. Spinelli Project
1986. Single European Act
1992. EU Treaty
1997. Amsterdam Treaty
2001. Nice Treaty

A step ahead

What the EU is supposed to be

A unique institution – MS voluntarily cede national sovereignty in many areas to carry out common policies and governance

Not a super-state to replace existing states, nor just an organization for international cooperation

Shared values: liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law

Largest economic region in the world

World’s most successful model for advancing peace and democracy (2012 Nobel Peace Prize winner)

World’s largest donor providing assistance to development

1944: Anti-Nazi resistance movements call for “federal union of European peoples” after the war

1948: Transnational NGO, International Committee of the Movements for European Unity, holds international congress
countries.

1950. Schuman Declaration

French foreign minister Robert Schuman on 9 May 1950. It proposed the creation of a European Coal and Steel Community, whose members would pool coal and steel production.

The ECSC (founding members: France, West Germany, Italy, the Netherlands, Belgium and Luxembourg) .

Historical context

In 1950, the nations of Europe were still struggling to overcome the devastation wrought by World War II.

Monnet: Various unsuccessful attempts at integration after the 1948 Congress organized by the European Movement in The Hague had solemnly called for unity.

The European Economic Co-operation, 1948, given coordinating powers was unable to prevent economic recovery in a purely national context.

The creation of the Council of Europe, on 5 May 1949, showed that the governments were jealous of their prerogatives. The Consultative Assembly had no more than deliberative powers. Its resolutions could be vetoed by the Committee of Ministers.

A complete institutional edifice at one go was a pipe dream.

The agreement Schuman - Adenauer, open to all European nations:

'Limited, but decisive target': Franco-German coal and steel production, which would be placed under a common High Authority"
- The merging of economic interests would help to raise the standard of living.
- The High Authority's decisions would be binding on the countries. Its members would be independent, enforceable decisions.

1951. ECSC
Justification? Control over coal and steel. First step of a bigger project

Scope
Single coal and steel market
Free movement of capital and workers
Regulation on: competition, concentration, transport

Principles
Superiority of Institutions: International relations ruled by the principles of equality, arbitration and conciliation (democracy)
Equality among nations
Independence of Community
organs


Power to act. ECSC
High Authority
- Members appointed by agreement between governments
Not national delegates
- Financial independence is assured by the levying of own resources
- High Authority
accountable only to the Assembly
, which could adopt a vote of censure by a qualified majority
- High Authority retained sole right of initiative.

Inter-institutional co-operation: A
Council of Ministers

Decision making: Majority
rather than unanimous decisions.
Surest way of preventing the budding Community being confined to overly technical purposes. Areas where macroeconomic decisions.

European
Assembly
and
Court
of Justice

After ECSC, eternal debate between Intergorvernmentalism and Supranationalism
"A ever closer union among the peoples of Europe"

Wallace: "pendulum"

1952. European Defence Community (EDC)

A plan proposed in 1950 by René Pleven, French Prime Minister, in response to the
American
call for the rearmament of West Germany.

Pan-European defence force as an alternative to Germany's proposed accession to NATO, to harness its military potential in case of conflict with the Soviet bloc.

West Germany, France, Italy, and the Benelux countries.


1952. European Political Community (EPC)
as the army (EDC) needed a foreign policy
The draft
EPC treaty, as drawn up by the ECSC Assembly
(now the European Parliament), would have seen a directly elected assembly ("the Peoples' Chamber"), a senate appointed by national parliaments and a supranational executive.

Proposed by
Spaak
, president of the ECSC Assembly

EPC failed in 1954 when it became clear that
France would not ratify the EDC
, (unacceptable loss of national sovereignty)

Other alternatives: France vs UK, integration vs free trade -> EFTA
Supranationalism versus Intergovernmentalism: dark 70's and 80's
The Fouchet Plan and the Empty Chair Crisis (1966)


The Fouchet Plan was a plan proposed by President Charles de Gaulle of France in 1961. It was written by Christian Fouchet, France's ambassador to Denmark. The idea was to form a new 'Union of States', an intergovernmental alternative to the European Communities. De Gaulle feared a loss of French national influence in the European Communities, which at the time was becoming more and more supranational, so the Plan was an attempt to keep the balance of power in France’s favor.

Belgium, The Netherlands, and Luxembourg, collectively known as Benelux, were against the Fouchet Plan. They were afraid that the proposal removed too much power from the Commission, the supranational governing body, and would rely heavily on intergovernmentalism.

Hallstein Commission and empty chair crisis
In 1965 president Hallstein put forward the Commission's proposals for financing the Common Agricultural Policy (CAP). The proposals would have allowed the Community to develop its own financial resources, independently of the states, and given more budgetary powers to Parliament. Furthermore though, it applied the majority voting into the Council, which the French government stated it could not agree to.

Finally on 30 June 1965 Paris recalled its representative in Brussels stating it would not take its seat in the Council until it had its way

France held this policy for six months until the impact upon its economy forced it back into negotiations.

Luxembourg compromise: Meetings were held in Luxembourg during January 1966. A member could veto a decision that it believed would affect its national interests – no details what kind of national interests.
However since then it had been used so often it became a veto making unanimity in the Council the norm and was removed under the Single European Act

2. European Communities and their evolution
Supranationalism is the traditional method of the 1st pillar (Lisbon normal method)(Haas):
EC has the monopoly of the initiative
Council: majority vote
EP: Active in co-legislating with Council
ECJ: Uniform interpretation

Intergovernmentalism 3rd pillar (Hoffman):
EC shares its right of initiative
Council: unanimity
EP: Informed or consulted
3. The European Union of Maastricht and Lisbon
4. EU: Principles and Objectives

L’effet naturel du commerce est de porter à la paix. Deux nations qui négocient ensemble se rendent réciproquement dépendantes : si l’une a intérêt d’acheter, l’autre à intérêt de vendre ; et toutes les unions sont fondées sur les besoins mutuels.

Montesquieu, De l’esprit des lois (1748), Book XX, Chapter 2
Bonus: Philosophical Conception of the European Union

It is generally accepted that the modern project of European integration, as conceived by the French bureaucrats Jean Monnet and Robert Schuman and communicated to the German Chancellor Konrad Adenauer, had a preeminently
Kantian inspiration
.

However, reducing the complexity and antiquity of European integration to the figure of Kant constitutes an erroneous oversimplification: the EU is the first anti-hegemonic structure.

Point of Departure: Declaration made by Robert Schuman on 9th May, 1951 that symbolizes the creation of the EU

We will examine other philosophical conceptions of the EU:

1. Gartonian Europe

2. Montesquieuan Europe

3. Schmittean Europe
Regulative ideal
is the inspiration of the current European Union

real transfer of sovereignty

EU citizenship: The cardinal principle of the free movement of persons + essential principle of non-discrimination on the grounds of nationality,

Citizens new rights vis-à-vis the states where they resided

Transnationality of 'injustice'. the fact that an offence in one place is perceived as personal in another place.

Intrinsically cosmopolitan

Cultural, folkloric, Geopolitical evidence
Reaction to the growing influence of the US in Europe

The French attempt to control the growth of Germany to avoid the possibility of another war

Literature of the text: "the hope of a federal-state" in the making of the founding fathers

Renouncement expressed towards the use of preemptive violence by the creation of a Court,
Gartonian Europe (Timothy Garton-Ash)

New form of 'multilevel multilateralism' .

A great achievement of the EU was to overcome the feared hegemony of France over the big three—UK and Germany—by eliminating any potential risk of solitary leadership.

Solid architectural argument

Internationalization consensus —Garton Ash, Posner— More realistic internationalist genesis
Montesquieuan Europe

Commerce and the principle of subsidiarity

identification of peace with the interdependence of nations through commerce. Sovereignty is thus overcome by a federation of states under a transnational rule of law, where the right of war only prevails outside the federation in cases of self preservation.

preservation of internal governance combined with effective external coordination by means of the federation, the creation of a 'society of societies'



Europe needs a certain degree of struggle: industrial, in research and investment, educative
6. The external action of the EU
Structure of the discussion

1. Europe in 1949. A Historical discussion
The Schuman Declaration

2. The creation of the European Communities (CECA, EURATOM, and CEE)
2.1 Creation of the ECSC. A result
Justification
Scope and competences
Structure
2.2 Projects that followed the ECSC
Justification
Scope
Failure: Reasons

3. Expansion: European Communities (EEC, Euroatom)
3.1 Rome (EEC) and Euroatom
International context
Principles and justification
Scope
Structure
3.2 The 60's and 70's
Relevant initiatives: Fouchet, Empty Chair crisis, Davignon report, Spinelli Project
3.3 Single European Act (SEA)
Institutional Changes
Reform of the common market
Schengen Agreement

Bonus track
Philosophical inspiration of the EU
Intergovernmentalism vs supranationalism
"A ruble heap, a charnel house, a breeding ground for pestilence and hate"

What was the formula?
1957.
Rome Treaty
. European Economic Community (EEC)
Treaties establishing the European Economic Community (EEC) and the European Atomic Energy Community (EAEC)

Context
Benelux leadership, Spaak, Johan Willem Beyen. Messina Conference, 1955.
Spaak Report:
Set out the broad lines of a future EEC and EAEC
Specific action plan based intergovernmental negotiations at Val Duchesse:
Common market (supranational)
Euratom, (supranational)
Areas where action was considered most urgent (coordinated, intergovernmental)
International context: the Suez Crisis (1956) and the Hungarian Uprising

Scope
Treaty concluded for an unlimited period
It comprises 248 articles plus 22 annexes
Details a customs union,
provides for the drawing up of a common agricultural policy (CAP) and
sets out rules for the
free movement of persons, services and capital
.

Standardisation of competition: provides the rules applicable to undertakings and state aid

Four broad principles:
progressiveness, irreversibility, the prohibition of discrimination, and the open nature of the Community




Structure (EEC shared with Euroatom):
a legislative power (the Assembly), an executive power (the Council and the Commission) and a judicial power (the Court of Justice)

The
Assembly
Representatives appointed in their parliaments according to their own procedures. It discussed the annual general report of the Commission
Enabled to censure the Commission by a majority of two-thirds of the votes

The
Council
Government representatives,
Administered common economic policy and had decision-making power
Decisions: unanimously, by a qualified majority or by a simple majority (in most cases only on a proposal from the Commission, amendable only by a unanimous decision of the Council)

The Commission
Nine members. Collective responsibility, appointed by the governments for a period of four years and selected for their ability and independence
Decisions by a simple majority
It formulated recommendations or delivered opinions
It exercised the powers conferred on it by the Council for the implementation of the rules which the Council laid down






The
Court of Justice
It consisted of seven judges, assisted by advocates general, who were also appointed for six years by their governments

The Court ensured that the law was observed in the interpretation and application of the Treaty.
It assessed the legality of acts of the Council and the Commission
, on grounds of lack of competence, misuse of powers, or infringement of Treaty or of any rule of law relating to its application

Economic and Social Committee
(ESC)
Representatives of the various categories of economic and social activity: producers, farmers, workers, dealers, craftsmen and professional occupations

The way towards... (Davignon and Spinelli)

Davignon Report (1970): Intergovernmentalism
Future foreign policy
of EEC by a council chaired by Étienne Davignon of the Belgian Foreign Office to make proposals on political cooperation.
MS should try to speak with a single voice on international problems
It resulted first in
European Political Cooperation
and later in the CFSP in 1992

The Spinelli Project. Supranationalism
19 June 1983, in Stuttgart. Pure political declaration to
1. Intensify the development of European policies
2. Pursue a common voice in common foreign and security policy
3. Harmonization of non-European criminal policies

First constitutional attempt when the EEC was embroiled in negotiations about the amount of Britain's contribution to the European budget, reforming the CAP...
New institutional Treaty of the EU and not a mere revision (a
Constitutional Treaty)


Going beyond the market...

European Citizenship
Fundamental rights: not only to the classic rights of the ECHR, but also to the new economic and social rights guaranteed by national constitutions

Principle of subsidiarity: Union action is necessary if it proves to be more effective than the action of the Member States

Legislative co-decision: CMi and the European Parliament (EP)
Maintenance of the "Luxembourg Compromise" to prevent majority voting for a transitory period of ten years
Parallel action by some MC to remove physical borders
Signed in 1985 symbolically in the town of Schengen bordering LUX, GER and FR

Originally Intergovernmental treaty between BENELUX, GER and FR; not part of acquis communitaire

Removal of internal borders while strengthening the external borders (so-called Schengen border)

Schengen Agreement

Institutional Changes

Qualified Majority Voting (QMV) in the Council of Ministers (CMi) in many common market issues

Strengthening the European Parliament (EP) by
cooperation
and assent procedures

European Council to be a part of the primary law: Recognition

Explicit aim to build an Economic and monetary union
Expanding the EEC mandate to the areas such as social legislation, environment, R&D
External Policy cooperation
Solidarity clause
Consultations in foreign policy affairs (European Political Cooperation - EPC)
Towards political union?


The Common Market
Slimmer version of internal market
Definition: space without internal frontiers with free movement of goods, services, persons and capital
Had to be completed by 31/12/1992
It did
not
include obligations to create EMU and an extensive economic and tax harmonisation

Goods (TEC, Arts. 23-31) – mainly removal of NTBs
Persons (TEC, Arts. 39-48) – mutual recognition of qualification, removal of discrimination
Capital (TEC, Arts. 56-60) – removal of restriction on cross-border movement of capital
Services (TEC, Arts. 49-55) – cross-border provision of services without need of settling at the recipient’s state territory – problematic due to diverging legal requirements



Supranationalism versus Intergovernmentalism: dark 60's and 70's

Relevant initiatives
The Fouchet Plan and the Empty Chair Crisis (1966)
In 1961, President de Gaulle proposed the
Fouchet Plan
It was written by Christian Fouchet, France's ambassador to Denmark to form a new 'Union of States', an intergovernmental alternative to the European Communities.
De Gaulle feared a loss of French national influence in the European Communities, which at the time was becoming more and more supranational
Benelux, were against the Fouchet Plan, fearing that the proposal removed too much power from EC

Hallstein Commission and empty chair crisis
1965 president Hallstein: Commission's proposals for financing the Common Agricultural Policy (CAP) that would have allowed the Community to develop its own financial resources, independently of the MS, and given more budgetary powers to Parliament
majority voting
into the Council, which the French government stated it could not agree to

June 1965 Paris recalled its representative in Brussels from the Council
France held this policy for six months. The impact upon its economy forced it back

Luxembourg compromise
: January 1966. A member could veto a decision that it believed would affect its national interests – no details what kind of national interests.
Since then it was used so often it became a veto making unanimity in the Council the norm
1986. Single European Act
Supranationalism
Loss of control of decisions
Key actors?
EC has the monopoly of the initiative
Council: majority vote
EP: Active in co-legislating with Council
ECJ: Uniform interpretation
Why is it criticized?
Automatic, Lack of legitimacy


Intergovernmentalism
Cooperation
Key actors?
EC shares its right of initiative
Council: unanimity
EP: Informed or consulted
Critique? Artificial and inaccurate
What are the basic theoretical frameworks of European Integration?
1.Supranationalism
2. Intergovermentalism
Federalism

Functionalism
Neofunctionalism: Spill-over Functionalism: focuses on human welfare needs, not political conflicts and law, and that individuals aggregated into interest groups as the main actors in integration
Self sustaining integration: triggers endogenous economic and political dynamics leading to further cooperation


Creation of the European Union: Maastricht Treaty

Introduction
Need to reach consensus in a range of controversial issues (supranational vs intergovernmental, solidarity, foreign policy cooperation, social policy…)

Two IGCs convened in 1991 reflect the new dimensions proposed
-Conference on political union
-Conference on economic and monetary union (EMU)

Most controversial points
- New spheres of influence for the Community/Union (foreign policy, monetary union, social policy…)
- Institutional balance (strengthening the EP)
- Citizenship
- Variable geometry: closer cooperation or enhanced cooperation:
lack of unity, fragmentation vs reaching unity, consensus.

Consolidation of a
single
structure
, different rules depending on subject matter:
1. European Communities (EEC changed to EC)
2. Common foreign and security policy (CSFP)
3. Justice and home affairs (JHA)

Ratification process

Denmark rejected the Treaty in referendum in June 1992
Declarations guaranteeing subsidiarity and Danish opt-outs
Successful referendum in 1993
Close referendum in FR
Parliamentary battle in GB
Constitutional challenge in GER
German constitutional court turned down the challenge but stated the ‘kompetenz-kompetenz’ principle



Consolidation of the European Union:
Amsterdam Treaty

Introduction
Purpose: Reform scope of the EU: rights and social rights
Aimed at gaining legitimacy:
Article 1, Openess

Stronger foreign policy


Main changes
Respect of HR, ECHR, democracy and rule of law

Extension
Pillar 1
. The EU will now be able to
legislate on immigration, civil law or civil procedure
,
when necessary for the free movement of persons
Intensified Intergovernmental cooperation in the police and criminal justice

Integration of Schengen

Foreign Policy
Introduced a
High Representative for EU Foreign Policy

name and a face on EU foreign policy
Shared with the Presidents of the Council and EC

Reforms concerning the
codecision procedure
, affecting its scope - most legislation was adopted by the codecision procedure

Pro-comunitate interpretation (Pupino case)
Eastern Integration:
Nice Treaty

Introduction
Purpose: Making the EU adaptable to eastern countries: 15 countries in 1995
Germany: Greater population should have higher vote weighting in the Council
France insisted that the symbolic parity be maintained

Charter of Fundamental Rights of the European Union (2000)

Main changes
No changes in pillar structure

New rules on closer co-operation:
Enhanced cooperation
: lowered the requirements

Formal rules for the application of sanctions against a Member State

Reform of the QMV
Expanded:
Weighing votes in the CMi and composition and members of the EC
Modified voting bias upon population: Small MS had gained relevance (architecture designed for 6 countries)
Voting legislative initiatives of the EC: majority of MS
Other legislative initiatives: 2/3 majority
Plus 62% of the population when requested by a MS
Treaty Establishing a Constitution for Europe: Rome 2004

Introduction
Constitution: Act defining the limits and conditions to the exercise of power in a political entity

"Treaty for a constitution...", it actually was an international Treaty

Laeken (European Council, December 2000):
Necessity to address the entire EU system
Convention
instead of IGC: Appointment of a group of experts (IGC favors the Council)

Three stages: Listening stage, examination stage, proposal stage

Structure

448 Articles - 36 Protocols proposed to the Council in July 2003
PREAMBLE
Part I BASIC OBJECTIVES AND VALUES OF THE EU
Part II THE CHARTER OF FUNDAMENTAL RIGHTS OF THE UNION
Part III THE POLICIES AND FUNCTIONING OF THE UNION
Part IV — GENERAL AND FINAL PROVISIONS + PROTOCOLS AND ANNEXES
It included a binding norm on Human Rights: ECHR (2000)
Definitive supranational legislative process
Clarity in horizontal (within the EU) and vertical (EU vs MS) exercise of power

Discuss the risks identified by Prof Fischer in his Speech

Discuss the advantages and disadvantages of using a Convention for the development of the Constitutional Treaty

Discuss the reasons for its failure

Lisbon Treaty: December 1, 2009

Introduction and justification
States and stakeholders were unwilling to give up the steps given towards the Constitution. In 2007 the ICG considered what changes would be necessary to successfully reform the treaties
A Reform treaty had to include amendments to the TEU and EC Treaty (renamed TFEU). The Union should have legal personality and substitute the "Community"
Minister for foreign affairs: High Representative for FASP
No flag, anthem of Motto
It is unclear if the so called Constitution was actually one, but it is clear that the changes introduced to it in Lisbon did not change its nature

Approval
The 2007 Lisbon IGC allowed for scant public deliberation, as there was little desire to reopen Pandora's box.
Ireland rejected the Treaty in a first referendum

Content
Formal architecture: 7 Articles amending the TEU and the ECTreaty (TFEU).
Less clear structure (no constitutional appearance, though it contains some constitutional provisions).

TEU - intended to embrace constitutional principles of the EU...
Title I - Common Provisions
Title II - Democratic Principles
Title III - Provisions on the Institutions
... but that needed to show that it did not simply replicated Part I of the Constitutional Treaty:
Competence matters +hierarchy of norms + budgetary planning (Part I of the Constitutional Treaty were included in the TFEU)

TFEU: 7 Parts
Part I - Principles: Competences and general application
Part II - Citizenship
Part III - Policies and internal actions (24 titles) - Including cooperation in criminal matters, asylum, etc. Also: Freedom, Security and Justice
Part IV - Association with other territories
Part V - Foreign relations
Part VI - Institutional and budgetary provisions
Part VII - General and Final Provisions

CFSP - Replicates the structure of the Constitutional treaty - Separated treatment - executive authority : Council and European Council and exclusion of the ECJ (to a large extent).
Economic and Montetary Union: MU stages

First stage
: (December 31, 1993)
Greater convergence of economic policies and closer cooperation between central banks:
creation of an environment of greater consistency between
monetary practices (
framework of the European Monetary System [Decision 64/300])
Directive on the complete liberalisation of capital movements in July 1990
Frozen composition of the
ECU basket on 1 November 1993
European Council of Madrid on 15-16 December 1995, decided that “euro” would be the currency in Third stage

Second stage
(1st January 1994, 31 December 1998)
Avoid excessive public deficits
Independence of MS central banks: Prohibited ECB from granting governments overdraft facilities or any other type of credit facility and from purchasing public sector debt instruments directly
Rules: Council Regulation of the excessive deficit procedure (EDP) [Regulation 479/2009, last amended by Regulation 220/2014].

Third stage
Outcome: high degree of convergence by reference to four specific criteria
(a) a rate of inflation which is close to that of the three best performing Member States in terms of price stability;
(b) deficit not exceeding 3% of GNP and total government debt not greater than 60% of GNP;
(c) durability of convergence: long-term interest rate levels;
(d) observance of the normal fluctuation margins provided for by the Exchange Rate Mechanism of the European Monetary System for at least two years (Article 140 TFEU, ex Article 121 TEC and Protocol on the excessive deficit procedure).





Plan Fouchet (EDC)
EPC
Plan Pleven
Davignon Report (1970)
EPC -> SEA
CFSP (Maas)
Amsterdam
- Constructive abstention
- Common strategies (thru joint actions)
- Common positions

Petersberg tasks -> Title V TEU

Structure of the discussion

1. Europe in 1949. A Historical discussion
2. The creation of the European Communities (CECA, EURATOM, and CEE)
3. Expansion: European Communities (EEC, Euroatom)
Bonus track
Philosophical inspiration of the EU
Intergovernmentalism vs supranationalism

4. Birth of the European Union

Maastricht Treaty
International context
Scope and structure
Economic and Monetary Union: Stages

Expansion towards the East
Amsterdam Treaty and Nice Treaty
Scope and structure
Main changes

5. The project for a Constitution
Justification
Structure of the constitution
Ratification process and reasons for its failure

6. Lisbon Treaty
Context
Ratification process (CIG in Lisbon)
Content of the Treaty. The new structure
Structure of the discussion

1. Europe in 1949. A Historical discussion
2. The creation of the European Communities (CECA, EURATOM, and CEE)
3. Expansion: European Communities (EEC, Euroatom)
Bonus track
Philosophical inspiration of the EU
Intergovernmentalism vs supranationalism
4. Birth of the European Union
Maastricht Treaty
Economic and Monetary Union: Stages
Expansion towards the East
Amsterdam Treaty and Nice Treaty
5. The project for a Constitution
6. Lisbon Treaty

7. EU External Action
External action in the treaties: where to find it
Common Commercial Policy
Signature of International Treaties
An approach to the CFSP

8. Human Rights in the EU
Introduction to the principles of the EU (arts 1 to 12 TEU)
Human Rights in the early Communities
Development by the ECJ
The CFREU
Article 6 TEU
Problems to join the ECHR

The Preamble to the draft Constitutional Treaty: "Our Constitution is called a democracy because power is in the hands not of a minority but of the greatest number" Thucydides
Foundational principles of the EU: Democracy, HR, equality among MS, collaboration, solidarity







Point of departure


Progressive recognition of non economic values in the Treaties: Article 1 Maastricht, Article 67 TFEU creating
AFSJ
(included in Amsterdam), also
Copenhagen criteria: requirements for MS candidates
This trend is described in new
Article 1 TEU
- "new stage in the process of creating an ever closer union among the peoples of Europe".
- "decisions are taken as openly as possible and as closely as possible to the citizen".

FIRST.
The
TEU

proclaimed some universal values
:
Article 2 TEU
, Values + Article 6, Article 10
- "human dignity, freedom, democracy, equality, the rule of law and respect for human rights"
- "pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men"

SECOND.
In
Human Rights
: ECJ Caselaw -> CFREU (2000) -> Art 6(3) TEU -> ECJ Opinion 2/2013

THIRD.
The TEU also clarified the
Objectives
of the EU (Article 3 and Article 4)
- "uphold and
promote its values
and interests and contribute to the protection of its citizens"
- "
contribute

to peace,
free and fair trade, eradication of poverty, protection of human rights"
Article 4, Respect to MC: Collaboration: "Respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government".

Article 4(3): Fidelity principle

Relevance of Article 7

FORTH.
The TFEU also first clarified EU
competences

Articles 3-5 TFEU
- "The limits of Union competences are governed by the principle of conferral".
- "governed by the principles of subsidiarity and proportionality".

FIFTH
. Additionally, relevant principles of EU Law, necessary to understand the EU:
Supremacy, Direct Effect
Human Rights in the EU
Initially no room for HR in the Treaties

Stork v. High Authority (1959)

Fast evolution (Van Gend en Loos and Costa v. Enel, 1963-64): Protection of HR for market integration

Yet, a secondary role (Stauder, Van Eick cases)

Internatioale Handelgesellschaft (1970): Affirmed that EEC lacked a HR policy and competences. Thus, in case of conflict, German fundamental rights would prevail (also in Italy, Frontini v. Ministero delle Finance, 1974)- the case allowed for the development of rigorous FR doctrine. In Solange II, 1986) German Constitutional Court concluded that the level of protection at EC level was identifiable to German protection

Nold case: 2 different sources:
(i) constitutional traditions and
(ii) international treaties

1977 -> joint declaration of the institutions

1996 - > Opinion 1/94 -> refusal of the ECJ to allow signature of the ECHR

- What is the value of ECHR today?

Charter of Fundamental Rights of the European Union
Convention system, 2000
Joint declaration by
Foundational principles of the EU: democracy, HR, equality among MC, collaboration, solidarity

Article 2 TEU, Values + Article 6 (
Human rights -> next discussion
)
- "Respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities".
- "pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men"
- Universal values
- "Rights, freedoms and principles set out in the CFREU, with the same legal value as the Treaties".
- "The EU shall accede to the ECHR. Such accession shall not affect the Union's competences as defined in the Treaties".
- "Fundamental rights shall constitute general principles of the Union's law".

Requirement for new members: Art. 49 TEU Amsterdam
Relevance of ECJ Opinion 1/94: lack of competence
This is a declaration; but yet, there is no specific competence for general regulations:
External: Art 21 TFEU
Internal:
-Articles 8-11 TEU are mainstream clauses
- Non discrimination (Art 19 TFEU)

Article 3, Objectives
- "uphold and promote its values and interests and contribute to the protection of its citizens".
- "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"
- "strict observance and the development of international law, including the United Nations Charter"
- European values
- Internal and external perspective


Foundational principles of the EU: Title II


Article 9
All activities: citizen equality + Citizenship (additional to MS)

Article 10
EU: Representative democracy
Citizens are represented at the EP
MS -> EC and CMi, democratically accountable national system
Political parties at European level

Article 11
The institutions shall facilitate participation, open dialogue with civil society
EC shall carry out broad consultations
Citizen Initiative

Article 12
National Parliaments:
Informed by the EU of draft legislative acts
Examining respect of subsidiarity
Evaluating AFSJ
Treaty revision
Interparliamentary cooperation

Foundational principles of the EU: Notion of citizenship created in Maastricht

Citizenship
Currently: articles 20 - 25 TFEU
+ Citizenship (additional to MS): right to move, study, etc.
Political rights

Equality
One of the principles in articles 2 and 3 TEU

Norms have existed since 1957, regarding labor market
This regulation lasted for decades
Amsterdam added discrimination on other grounds (sex...) art 19 TFEU

Critique: there is a general mandate to protect HR externally, but there is no general mandate to protect HR internally
Structure of the discussion

1. Europe in 1949. A Historical discussion
2. The creation of the European Communities (CECA, EURATOM, and CEE)
3. Expansion: European Communities (EEC, Euroatom)
Bonus track
Philosophical inspiration of the EU
Intergovernmentalism vs supranationalism

4. Birth of the European Union
Maastricht Treaty
International context
Scope and structure
Economic and Monetary Union: Stages

Expansion towards the East
Amsterdam Treaty and Nice Treaty
Scope and structure
Main changes

5. The project for a Constitution
Justification
Structure of the constitution
Ratification process and reasons for its failure

6. Lisbon Treaty
Context
Ratification process (CIG in Lisbon)
Content of the Treaty. The new structure
EU External Action

External action in the treaties: where to find it
Concern over decades: Consistency
The EU shall be a global actor (art. 3 TEU art 205 TFEU)
Principles: Art 21 TEU (it includes CFSP)
Part V TFEU (except CFSP, TEU)
Limitation: principle of conferral
Example: art 75 TFEU vs art 215 TFEU
Extension: implied powers (ERTA case = Common Transport Policy), now art 47 TEU/216 TFEU
External competences can be shared with MS

Common Commercial Policy

Legal personality (art. 47 TEU, plus 335 TFEU)
Art 206 TFEU. Conclusion of agreements in the domain of tariffs
Ordinary legislative procedure for the conclusion of international agreements
Problem with trade in services, TRIPS and foreign direct investment: solved in Lisbon
TTIP and the problem of giving consent competence to the EP

Signature of International Treaties
Art 271 TFEU: competence to sign agreements of association / partnership / collaboration / neighbouring
Art 212 TFEU: humanitarian aid, cooperation, etc
External dimension of internal policies
Implied powers
Example: environment -> Climate change
social policy, energy policy
Border check, asylum, immigration (AFSJ)

An approach to the CFSP

Creation of the CFSP and principles according to the Treaties
Another external competence of the EU. Established in Maastricht
Objectives and instruments (Article 24 TEU)
Safeguard the common values, fundamental interests and the independence of EU
Strengthen the security of the EU and its MC in all ways
Preserve peace and strengthen international security
Promote international cooperation
Develop and consolidate democracy, rule of law, human rights, fundamental freedoms

Analyze the institutional framework of the CFSP and define the different decision instruments used

Lisbon Treaty: CFSP has now a larger framework of the Union’s external action
Effectiveness increased by entrusting the
HR
with the mission to implement the strategies and decisions taken by the ECo and the CMi.
HR
is supported by the European External Action Service (EEAS) and the Political and Security Committee (PSC)

- ECo given a formal role in outlining the principals for CFSP including an agenda
- CMi given the responsibility defining common positions and decide on joint actions
- EC given formal right to initiate in CFSP Required consultation to EP

Specific legal instruments: joint actions / common positions (
unanimity in CMi)


A History of Foreign Policy Coordination in the EU

European Political Community (
EPC
I) and European Defense Community (EDC) in 1953 original attempts (ECSC) to coordinate foreign policy and create a joint military.
Fouchet Plans
(1961/62, de Gaulle) to create a “Europe of States”.
The European Political Cooperation (EPC II) originated in 1970s the predecessor of European Council.
- Initiated byPompidou Created “summitry” Structurally follows organization of Council of Ministers (Coreper, shared President etc) minimum biannual meetings outside of the treaties and intergovernmental
- Throughout 1970s EPC II worked relatively well.
SEA
- EPC is reformed and officially recognized by the SEA treaty reforms within Title III: “the Member States, being members of the European Communities, shall endeavor jointly to formulate and implement a European foreign policy.”
- Title III was not officially incorporated as some MC refused to implement QMV.
- After SEA EPC II remained intergovernmental, voluntary and non- binding.

Role of the different institutions and instruments


Role of the Various Institutions
- ECo →Defines the Principals and general guidelines for CFSP
- CMi → Main decision making body within the general guidelines set by the European Council (unanimity with implementation by QMV, FA Council, chaired by HR-VC)
- COREPER → Liaison. Meets 1 per week.
- Working Groups: Senior diplomats plus EC representative. Work in specialized areas of expertise (geographical or topical) to prepare the work of COREPER and Council

Instruments
- Amsterdam: Principles and Guidelines, Common Strategies, Joint Actions, Common Positions.

- Lisbon
Decisions:
(1) on the strategic objectives and interests of the EU: Highest level of decision. Conclusions of meetings of the EuropeanCouncil. Declarations of the HR-VC
European Security Strategy, EU Strategy Against Proliferation of Weapons of Mass Destruction (2003), EU Counterterrorism Strategy (2005), EU Internal Security Strategy (2010)
(2) on common positions,
Usually regarding specific countries (Cuba, Zimbabwe)
(3) on joint actions, both entail specific commitments by the MC.
Usually appointment of EU Special Representatives and financial commitments
(4) on the implementing arrangements for common positions and actions.

Human Rights in the EU
Initially no room for HR in the Treaties


Article 6 (1)
- "rights, freedoms and principles set out in the CFREU, with the same legal value as the Treaties".
- "The EU shall accede to the ECPHR. Such accession shall not affect the Union's competences as defined in the Treaties".
- It will not extend the scope of EU Treaties
- Fundamental rights shall constitute general principles of the Union's law": Just because religious freedom is guaranteed, the EU is not competent to regulate religion
- Content: wider array of rights and freedoms possibly than any other human rights treaty
- Rights to human dignity (1-5)
- Freedoms (6-19)
- Equality (20-26)
- Citizen's rights (39-46)
- Justice (47-50)
- Also, it protects cultural and ecologic "interests"Protection
- Social rights: certain rights are missing (decent pay, work) and others are to be recognised in accordance to national MS Laws (marriage, health care)

Standard of protection of FR
-
Autonomous interpretation
of FR in light of broader EU principles
- Article 53: no undermining of the protections of other International Treaties or constitutions
- Artivle 52(7): judicial interpretation coherent with
explanatory notes
of the CFREU and with ECHR (Article 52(3))
- Article 52(4): Interpretation in harmony with national constitutional traditions: Since there are differences among the systems, the E
CJ seems to delegate it to MC courts
(Omega case C-36/02)

Article 6(2)

- Imposes additional external obligations (ECHR)
- Participation in ECHR control bodies
- Bosphorus case 45036/98 (2005): EU Law is only subject to ECHR when application of FR is "manifestly deficient" (still applicable?)

Article 6(3)
- Reference to ECHR and Constitutional traditions
- General principles of Law: non discrimination, non retroactivity, proportionality, legitimate expectations
- [Kadi case C-402/2005]: Placed in the list of terrorists of the UN Security Council, but it violated his EU Fundamental Rights
- The CFREU is built upon these

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