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Policies and Institutions - Unit 1 and 2

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Manuel Gimenez

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Transcript of Policies and Institutions - Unit 1 and 2

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
Day 1. European Integration
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


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 (RS) on 9 May 1950 proposed a European Coal and Steel Community


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 devastation
1947: GATT; 1948: OECD; 1949: NATO

Monnet: Various unsuccessful attempts for an integration after
the 1948 Congress
(European Movement in The Hague) had solemnly called for unity


Creation of the
Council of Europe (
5 May 1949): governments were jealous of their prerogatives: Consultative Assembly had deliberative powers, Its resolutions could be vetoed (Committee of Ministers)
ECHR, 1953.


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

'Limited, but decisive target': Franco-German coal and steel production 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
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
1957.
Rome Treaty
. European Economic Community (EEC)
Treaties establishing the European Economic Community (EEC) and the European Atomic Energy Community (EAEC)

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

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)
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 Projec
t
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: ECHR + new economic and social rights in MS constitutions
- Principle of subsidiarity: Union action is necessary if more effective than MS acts
- Legislative co-decision: CMi and the European Parliament (EP)
- Luxembourg Compromise: transitory period of ten years
Parallel action by some MS 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



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
France: Close referendum
GB: Parliamentary battle in GB
Germany Constitutional challenge: turned down --> 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


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

Supranationalism versus Intergovernmentalism: dark 70's and 80's
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
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.
It applied
majority voting
into the Council, which the French government stated it could not agree to

On 30 June 1965 Paris recalled its representative in Brussels stating it would not take its seat in the Council
France held this policy for six months until the impact upon its economy forced it back into negotiations.

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
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

Lisbon Treaty: December 1, 2009

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
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 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) - cooperation in criminal matters, asylum, etc. 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 Constitutional treaty - Separated treatment - executive authority : CMi / ECo exclusion of the ECJ (to a large extent)
2. European Communities and their evolution
3. The European Union of Maastricht and Lisbon
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
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.

Other philosophical conceptions of the EU:

1. Gartonian Europe

2. Montesquieuan Europe

3. Schmittean Europe


Point of Departure
: Declaration made by Robert Schuman on 9th May, 1951 that symbolizes the creation of the EU
Regulative ideal
is the inspiration of the current European Union

Real transfer of sovereignty


Intrinsically cosmopolitan
EU citizenship: free movement of persons + non-discrimination on the grounds of nationality

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

Transnationality of 'injustice': An offense in one place is perceived as personal in another place

Cultural, folkloric, Geopolitical evidence
Schuman Declaration

Reaction to the growing influence of the US in Europe - Against USSR

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
' .

Achievement: Overcoming the feared hegemony of France over 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 principle of subsidiarity

Peace = interdependence of nations through commerce
Sovereignty overcome by a federation of states under a transnational rule of law
Right of war only prevails outside the federation for self preservation

'society of societies': Preservation of internal governance + effective external coordination by means of the federation

Certain degree of struggle: industrial, in research and investment, educative
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) inflation: close to that of the three best performing MS 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).
UNIT 2 Principles, structure, and objectives of the European Union
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: How a continent became a Union
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)
Copenhagen criteria: requirements for MS candidates
This trend: 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.

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.
TEU 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 MS: Collaboration: "Respect equality of MS, 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.
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

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 MC 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
- Article 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

1.1 The founding fathers
1.2 The inheritance of WWII and The Schuman Declaration
1.3 The creation of the European Communities (CECA, EURATOM, and CEE)
1.4 The expansion of the European Communities
1.5 The Treaty on European Union: the creation of the European Union
1.6 The evolution of the European Union from Maastricht to Lisbon
1.7 The Treaty of Lisbon: present and future of European institutional architecture

Theme 1: Origin and evolution of the process of European integration
"A ruble heap, a charnel house, a breeding ground for pestilence and hate"

What was the formula?
Structure of the class


1. Philosophical background of the EU
2. Schuman declaration
3. General ideas about the EU
4. Main integration theories
5. EU Enlargements
6. EU Treaty Amendments
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?
Main Integration theories

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


Treaties

Primary source of European Law

They contain the objectives and principles of the Community
Competences of the Community
Structure and function of the institutions
Basis of common policies

What are the
institutions
, what is their structure and their functions?



What
other sources
of Law do we have?

Soft Law

Not binding

Recommendations and opinions (Art. 288 TFEU)

There are others: Declarations, Actions Programmes, Plans, EC Communications guidelines, Inter-institutional Agreements



Recommendations
Allow the institutions to make their views known and to suggest a line of action without imposing any legal obligation

Opinions

Allow the institutions to make a statement in a non-binding fashion Commission, Council, Parliament, the Committee of the Regions and the European Economic and Social Committee.
While laws are being made, the committees give opinions from their specific regional or economic and social viewpoint.
For example, the Committee of the Regions issued an opinion on how regions contribute to the EU’s energy goals

Declarations
Commitments about the conduct of institutions, ex. to respect values,


Action Plans

Programming legislation: "Environment Action Programme 2020" (7th Environment Programme),
Single Market Programme


Guidelines, Communications

Used to interpret legislation. Guidelines
Opinions

EC frequently uses opinions to inform to undertakings whether they are in compliance with EU Competition Law

Regulations

288 TFEU

Directly applicable
: EC v. Italy, 1973 (Variola v Administratione delle Finanze)
Cannot be transposed or developed, unless instructed

Recent Regulations

01993R2454-20140904: Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code

02009R0479-20140901: Council Regulation (EC) No 479/2009 of 25 May 2009 on the application of the Protocol on the excessive deficit procedure annexed to the Treaty establishing the European Community (Codified version)

Famous Regulations

Brussels 44, Rome I, Rome II,

Regulation (EC) No 1223/2009 of the European Parliament and the Council on cosmetic products (Text with EEA relevance)
Directives

288 TFEU

Outcome: ensure a result
Addressed at MS (not all)
Harmonization of complex matters
Direct effect
Horizontal
Vertical
Term to transpose any directive

Relevant fields:
- Consumer protection, Environment, culture, accounting, IP protection, Pharma, data protection,

Decisions

Binding upon those to which they are addressed
Bechluss: decisions with no addressee



EU International Agreements

288 TFEU
Always under EU Law scope: competence
Implicit v. Explicit competence (Art. 216 TFEU)
Procedure (Art 218 TFEU)

EU and International General Principles of Law

good faith, legality, pacta sunt servanda, stoppel, cooperation (EU), proportionality (EU)





FCSP Acts

Principles
.
Democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law

Decisions in the European Council
on the strategic interests and objectives of the with a specific country or region or may be thematic in approach: duration, and the means

Unanimously on a recommendation from the
CMi
. Implemented in accordance with Treaties

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

Foundational principles: democracy, HR, equality among MS, 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 gender equality"
- Universal values
- "Rights, freedoms and principles in CFREU, same legal value as the Treaties"
- "The EU shall accede to the ECHR"
- "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 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

Article 4 and Article 7 TEU
Respect to MS and Protection of EU values in the MS

Article 4, Respect to MS and Collaboration
- 1. C
ompetences not conferred remain with the MS
- 2. The Union shall respect: equality of MS and their national identities, fundamental structures, political and constitutional, regional and local self-government, essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security
- 3. Sincere cooperation: assist each other in full mutual respect.
MS shall: take any appropriate measure, general or particular, to ensure fulfillment of the obligations arising out of the Treaties; (ii) facilitate the achievement of the EU's tasks and refrain from any measure which could jeopardize its objectives (
Fidelity Principle)

Article 7: Mechanism to protect EU values against MS violations
1. Recommendations after determination of a clear risk of a serious breach (CMi)
2. Determination of a serious and persistent breach (ECo)
3. Decision to suspend certain of the rights deriving from the application of the Treaties to the MS, including voting rights in CMi
4. Variation or repudiation of the measures
5. Voting arrangements in the EP
Competences, Supremacy, Subsidiarity, Proportionality
Introduction
Initially, common policies were fisheries, agriculture and foreign trade

This was abolished by the Lisbon Treaty
Article 5 TEU + 7 TFEU + 13(2) TFEU for the Institutions
Exclusive (Article 3 TFEU) + shared (Article 2.2 TFEU)
Foreign Policy: Article 21 TFEU, is independent

Supremacy of EU Law
No legal basis, but developed by ECJ (Declaration 37 Lisbon Treaty)
controversial status for many Constitutional bodies across the EU

Costa v Enel : The EC constituted a new legal order
- Contractual argument
- Necessity to attain the outcomes of the EC
- Contingency of the obligations otherwise
- Presupposes direct effect to EU Law (automatic effect of EU norms when they are clear, precise and unconditional)
- All MS Courts must give immediate effect to EU Law (Factortame)

Subsidiarity and Proportionality, Article 5(3) an 5(4) TEU
- Avoid unnecessary costs, business restriction and limiting innovation: Communication EC(2005)535: dismantling all unnecessary legislation, codification
- Subsidiarity asks EU Law to act only when decisions are better taken at a regional or EU level
- Proportionality ask EU to act only when it is useful, necessary and imposing the lower constraints on individuals

Protocol on application of these principles: use of quantitative indicators

Subsidiarity
- First described in the Spinelli Project (1984)
- Limited to exclusive competence matters.
- Motivation of EU acts is to justify compliance with subsidiarity principle

Proportionality
5(4) TEU
An act of the Union shall not exceed what is necessary to achieve the objectives of the Treaties
Three parts in the analysis of the ECJ: Suitability, necessity, impact on individuals' interests
Also requires a decision on the best legislative instrument: Regulation, Directive

Competences of the EU
Conferral, art 4 TEU
First time, Lisbon, without a real examination: Article 5 TEU + 7 TFEU + 13(2) TFEU for the Institutions
Exclusive (Article 3 TFEU) + shared (Article 2.2 TFEU)
General Clause (4 TEU)
Specificity, Functionality, Irreversibility

Exclusive Competence (2.1 TFEU, 3 TFEU)

MS have no power
Numerus clausus
Custom union, monetary union. International agreements:
when their conclusion is required by a legislative act or necessary to enable the EU exercise internal competence
in so far as their conclusion may affect common rules or alter their scope

Shared Competences (2.2 TFEU, 4 TFEU)
Residual category. Extent of the exercise, possibility to cease
internal market
social policy, limited to the aspects defined in the TFEU
economic, social and territorial cohesion
agriculture and fisheries, excluding the conservation of marine biological resources
environment, consumer protection, transport, trans-European networks, energy
area of freedom, security and justice
common safety concerns in public health matters, limited to the aspects defined in the TFEU
research, technological development and space
development cooperation and humanitarian aid

Supporting, Coordinating, or Supplementary Action (2.5 TFEU)
Binding acts, but not under art 114 TFEU. Never harmonization
protection and improvement of human health
industry, culture, tourism, education, vocational training, youth and sport
civil protection
administrative cooperation

Other Grounds
- Economic, Employment and Social Policy (2.3 TFEU):
http://europa.eu/pol/emu/index_en.htm
http://europa.eu/pol/socio/index_en.htm
http://europa.eu/pol/socio/index_en.htm
- Common Foreign and Security Policy and Defence (2.4 TFEU)
- Article 352 TFEU
unanimity - EP consent
CFSP excluded
- 114 TFEU


Unit 1 Materials

1. Moussis book

Chapter 1. http://www.europedia.moussis.eu/books/Book_2/2/1/index.tkl?all=1&pos=3
Chapter 2. http://www.europedia.moussis.eu/books/Book_2/2/2/index.tkl?al
Chapter 3.1 http://www.europedia.moussis.eu/books/Book_2/2/3/1/?all=1
Chapter 5.1.1 http://www.europedia.moussis.eu/books/Book_2/3/5/1/1/?all=1
Chapter 5.1.2 http://www.europedia.moussis.eu/books/Book_2/3/5/1/2/?all=1
Chapter 7 http://www.europedia.moussis.eu/books/Book_2/3/7/index.tkl?all=1&pos=83

2. Mandatory readings
EU Integation: Intergovernmentalism Versus Supranationalism
Preamble Rome Treaty
From Confederacy to Federation ␣ Thoughts on the Finality of European Integration Speech by Foreign Minister Joschka Fischer at Humboldt University in Berlin, May 12, 2000
The Unmaking of a Constitution: Lessons from the European Referenda
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

Citizenship: Foundational principles of the EU

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
Article 7 TEU
Respect to MS and Protection of EU values in the MS

- Included in Amsterdam:Conceived before eastward expansion
- Modified in Nice after the Haider affair
Haider affair (2000) inclusion of warning in situations of risk
- General application of art 7 to MS, not confined to EU Law

- lack of definition of "serious risk", Article 7(1) and of definition of "persistent breach": Not contingent, but systemic

-
Fundamental Rights Agency
: monitors MS

Clear clash with article 4(2) TEU:

- 2. The Union shall respect: equality of MS and their national identities, fundamental structures, political and constitutional, regional and local self-government, essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security
Articles 4 and 7 TEU and EU competences
Feb 10 and Feb 12

Complex equilibrium: EU must respect fundamental national values of all MS. MS must respect EU fundamental values. Candidate countries agree to respect these values upon accession negotiations

Article 7 TEU enables the EU to control the violation of EU fundamental values as it happens with candidates to join the EU and the Copenhagen Criteria

Main topics
• Copenhagen Criteria and with article 7 TEU
• Mechanisms of article 7 TEU
• Relation between article 4.2 TEU and article 7 TEU
• Analyze the mechanism of article 42.7 TEU, article 4.3 TEU and 222 TFEU

Useful questions to answer
How many different procedures does Art 7 TEU contain?
What are the measures that can be taken under each of them?
Is expulsion contemplated?
Is the EU able to scrutinize MS situations that go beyond EU law?
If MS are supposed to collaborate "sincerely" (Article 4 TEU), are they entitled to trigger Article 7 TEU?
If MS are to be respected in "national identity" measures, is there a tension between national identity and Article 7 TEU?
Is the Fundamental rights agency the Watchdog of the EU?
Direct Effect

Introduction
Creation of new rights and obligations from EU Treaties
Those can be invoked directly before MS courts
Based on art. 267 TFEU

Alternative: art. 258 TFEU

Direct effect in
FCSP
is questionable




Self executing

VGEL:
Clear, unconditional and with no further legislative intervention
Only against the State
Only negative actions

Reyners case: No discrimination, even if the MS should have taken actions to dismantle discrimination

Defrenne v. Sabena
Also against corporations
Also positive actions
Avoid MS ignoring the principles

EU Remedies
National, but no less favorable than internal
Sufficient to guarantee EU rights: Unibet Case


Fully applicable to primary norms:
Treaties
(tax discriminations, free movement of workers, Competition...)

Fully applicable to
decisions
and
regulations


Questionable for
directives
(Faccini Dori)
Denying direct effect would be incoherent (hierarchy)
Vertical
effect:
Van Duyn case: when additional actions are needed
Term to transpose the directive
Horizontal
effect:
Degree of State control:
Paradoxical
Foster test
Is this compatible with Defrenne case?
What happens if a directive includes general principles of EU law?
...and if a Regulation is based on a directive?
Supremacy Principle

Introduction
Costa V. Enel.
No mention in the Treaties
Lisbon: Declaration 17
Although EU Law prevails over constitutions, but the ECJ avoids conflict
France, Germany deny




Definition

Justification


Because it was an Agreement (contractuarian)
Because otherwise, the Union would not work (funcional)
Because otherwise, the Union would not be effective (analytical)

Application in time

Simmenthal: Irrespective of the date of the domestic law (para. 21)
Winner Wetten (2010): How to adapt to EU Law?

Adjudicatory Body at a domestic level
Simmenthal
B & others case (Sep, 2014)
Larsy (2001): also administrative bodies
Power given to the national judge
In the merits (Simmenthal, Cilfit)
Procedurally: interim decision (Factortame)
Res judicata (Luccini, 2007)
Justification


Principle of Conferral
Mandate: MS shall avoid actions that are not compatible with the treaties
MS Powers: Shall abide to comply with EU Law (Opinion 1/91)

Scope
Refusal to apply (Simmenthal) does not mean declaring the norm null
Supremacy covers all EU norms,
Originary
or
Secondary
Supremacy reaches to
all MS norms
(any hierarchical level)

Proceedings before the ECJ (Art. 258 to 260 TFEU)

Jurisdiction
Preemption: Kompetenz - Kompetenz
Article 19 TEU
Article 5.2 Conferral

Supremacy and EU Countries

France

Semoules (Conseil d'Etat) vs. Café JAcques Vabres (Cour de Cassation)
Followed by acceptance: Nicolo
Based on the French Constitution and not in Costa v. Enel: It denies supremacy over the constitution itself

Germany

"Identity lock"
23.1 German Constitution
Limitations: Fundamental Rights, competence, constitutional identity
Solange cases: "I would not exercise jurisdiction as long as the EU gives sufficient guarantees"


Indirect Effect

Interpretation in light of the outcome of the norm
Von Colson: Fidelity Principle 4(3) TFEU
Marleasing
: interpreting the Spanish Civil Code in light of EU norms, whenever possible.

Kükücdevecy: Fundamental rights in the directive whose direct effect is invoked

Incidental Horizontal Effect
Exclusion effect vs. substitution effect

Article 267 (ex Article 234 TEC)
The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning:
(a) the interpretation of the Treaties;
(b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;

Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.

Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.
Article 258

(ex Article 226 TEC)

If the Commission considers that a Member State has failed to fulfil an obligation under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations.

If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice of the European Union.
Approach to the European Institutions
1951. ECSC, EEC and SEA
Jan 20 and Jan 22

• Discuss the different international projects considered after WWII. The European Defense Community, the European Political Community, the Council of Europe. Other international initiatives: NATO, USSR, GATT Agreement.

• Discuss the context, content and consequences of the Schuman Declaration

• Discuss the purpose, scope and institutions (main characteristics and powers) of the European Coal and Steel Community

• Discuss the purpose, scope and institutions (main characteristics and powers) of the European Economic Community and Euroatom

• Analyze the empty chair crisis and the Luxembourg compromise

1.4 The Expansion of the Communities
Jan 27 and Jan 29

Purpose: critically analyze the different stages of the European integration process. In each of the major treaties that have preceded the Lisbon Treaty:

• Discuss the main changes (scope, institutions, policies) introduced to the European Communities with the Single European Act

• Discuss the main changes (scope, institutions, policies) introduced to the European Communities with the Maastricht Treaty

• Analyze the Three Pillar Structure of the European Union designed by the Maastricht Treaty

• Discuss the three stages of the Economic and Monetary Union

• Discuss the main changes (scope, institutions, policies) introduced to the European Union in the Amsterdam Treaty

• Discuss the main changes (scope, institutions, policies) introduced to the European Union in the Nice Treaty

1.5 and 1.5 Constitution and the Lisbon Treaty
Jan 27 and Jan 29

Purpose: failure of the Project for a Constitution. Lisbon: present and future of European institutional architecture

Discuss the main changes (scope, institutions, policies) introduced to the European Union by the Project for a Constitution

Discuss the reasons leading to the failure of the Project for a Constitution

Discuss the main changes (scope, institutions, policies) introduced to the European Union by the Lisbon Treaty

2.1 and 2.2
Feb 3 and Feb 5

Purpose: Analyze what the principles and objectives of the European Communities were, and their evolution. On Friday, how some human rights were necessary to fully implement the objective of a single market: human rights policy, lack of competence, CFREU, Article 6 TFEU

• Foundational values of the original Communities and evolution
• Articles 1 to 12 TEU
• Principles of the EU:
freedoms, respect to national identity, primacy, legal personality
• Citizenship of the EU
• Early ECJ cases: Stauder, InterHandel, Nold
• Competence to join the ECHR
• Status of the Charter for Fundamental Rights of the EU
• Incorporating a human rights policy in the European Union


Assignment: Read the early cases,Chapter 11.1 to 11.4, 11.7 to 11.9, Press report 180/2014
Articles 4 and 7 TEU and EU competences
Feb 10 and Feb 12

European competences were not clearly defined by the Treaties prior to the Lisbon Treaty, when five basic categories consolidated.
Understand how the current external EU competences for the signature of international treaties is defined (article 3.2 TEU)

Main topics
• Exclusive competences of the EU
• Exclusive external competences of the EU, both pre and post-Lisbon
• Shared competences of the EU
• Supporting, coordinating and supplementary competences of the EU
• Economic, employment and social policy competences of the EU
• Flexibility clause of article 352 TFEU

Useful questions to answer

Flexibility Clause
Article 352 TFEU

If action by the EU should prove necessary, within the framework of the policies defined by the Treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers
CMi (Unanimity) on EC proposal with EP consent: adopt the appropriate measures
More extensive set of objectives: the Union (and not the Community) objectives
Controversial given the latitude with which the earlier provision was interpreted

Article 114 TFEU harmonization of rules for the internal market (26 TFEU)

EP + CMi = adopt measures for the approximation of the provisions which have as their object the establishment and functioning of the internal market

2. No fiscal provisions

3. EC proposals (para 1) concerning health, safety, environmental protection and consumer protection, will take as a base a high level of protection

9. EC / MS may bring the matter directly before the ECJ
Article 42(7) TEU
The mutual defense clause
Included in the Lisbon Treaty

It forms a legal obligation between the MS without any transfer of competences to the EU

Identical obligation for all EU MS: it obligates them to provide aid and assistance in case one of them is attacked

Flexibility: it could also be applied on the basis of a common understanding between the MS to other types of serious threats, as detailed in the framework of international norms concerning the use of force and, in particular, Article 51 of the UN Charter

The political context for the application of the provision, and the threat affects the character of assistance expected

Emphasises solidarity. Incentive for the further intensification of the common defence policy

No immediate implications for the EU's military structures

NATO's common defence forms the core of defence cooperation for the majority of the MS

Fidelity, Mutual Defence, Solidarity among MS

Existence of several forms of obtaining mutual protection:

- Art. 4(3) TEU - Fidelity Clause

- Art. 42(7) TEU - Mutual Defence

- Art. 222 TFEU - Solidarity Clause

Art. 222 TFEU - Solidarity Clause

1. Terrorist attack /natural / man-made disaster to EU/MS: mobilisation of all instruments, including the military to:

(a) prevent the terrorist threat; protect institutions and civilians; assist a MS in its territory, at the request of its authorities;
(b) assist MS in the event of a natural or man-made disaster

2. MS shall assist it at the request of its political authorities in coordination by the CMi

3. Implementation: CMi decision adopted on a joint proposal by EC and HRVC. EP informed.

Joint Opinions: CMi + the Political and Security Committee + CFSP structures + Committee of Article 71 TFEU

4. ECo: regularly assess EU threats to take effective action



Fidelity, Mutual Defence, Solidarity among MS

Existence of several forms of obtaining mutual protection:

- Art. 4(3) TEU - Fidelity Clause
- Art. 42(7) TEU - Mutual Defence
- Art. 222 TFEU - Solidarity Clause

- Art. 4(3) TEU - Fidelity Clause

3. Sincere cooperation: assist each other in full mutual respect.
MS shall: take any appropriate measure, general or particular, to ensure fulfillment of the obligations arising out of the Treaties; (ii) facilitate the achievement of the EU's tasks and refrain from any measure which could jeopardize its objectives (
Fidelity Principle)

Explanation
- Mere obligation not to breach EU Law would not be enough
- Applies to institutions and MS, both negative and positive
-
Feb 16 Supremacy, Direct Effect,

Subsidiarity and Proportionality

Critically evaluate the relevance of the principle of Supremacy of EU Law, how it originated, how it is regulated today and what the approaches of national highest courts are to this principle.
Also examine how European integration motivated the necessity to implement some principles that would ensure the accuracy and efficiency of any actions at a European level. These are the principles of subsidiarity and proportionality:

• Define the supremacy principle. Discuss its origin and its main features
• Define and describe the principles of subsidiarity and proportionality before and after the Maastricht Treaty
• Analyze how direct effect is an application of supremacy principle
• Analyze the direct effect of regulations and directives

Subsidiarity and Proportionality, Article 5(3) an 5(4) TEU

- Avoid unnecessary costs, business restriction and limiting innovation: Communication EC(2005)535: dismantling all unnecessary legislation, codification
- Subsidiarity asks EU Law to act only when decisions are better taken at a regional or EU level
- Proportionality ask EU to act only when it is useful, necessary and imposing the lower constraints on individuals

Protocol on application of these principles: use of quantitative indicators

Subsidiarity
- First described in the Spinelli Project (1984)
- Limited to exclusive competence matters.
- Motivation of EU acts is to justify compliance with subsidiarity principle

Proportionality
5(4) TEU
An act of the Union shall not exceed what is necessary to achieve the objectives of the Treaties
Three parts in the analysis of the ECJ: Suitability, necessity, impact on individuals' interests
Also requires a decision on the best legislative instrument: Regulation, Directive
Full transcript