WWI, WWII and the desire for peace See, e.g., ECSC treaty discussion The rising Soviet threat Global economic growth, development and competitiveness.

Introduction to EU LawCourse E509Winter Quarter 2009

Professor Jane WinnAdjunct Professor Thomas Daemen

Class One – 1/6/09

Administrative Issues and Historical

Overview (Winn / Daemen)

European Union History and

Development

EU History – Why?

WWI, WWII and the desire for peaceSee, e.g., ECSC treaty discussion

The rising Soviet threatGlobal economic growth, development and competitivenessAnd, more recently, the US influence

That said, tremendous disagreement, then and now.

EU History – What (1)Given disagreement about “why,” difficult to understand “what” they intended to createTheoretical options (p. 10)

IntergovernmentalismSupranationalismFederalism

Practical realityNone of these concepts clearly definedLack of agreement about objectives and tactics

What do we know for certain? The treaties:Specifically address economic issuesTouch on social policyReference the potential need for integration

Conclusion still TBD

EU History – What (2)

Taxonomy: “Community” vs. “Union”

EU Public Policy Organizational Structure

Economic Union / Internal Market

1. TEU Titles II-IV

2. 4 freedoms (people, goods, services,

capital)3. Qualified majority

voting (generally)

Common Foreign and

Security Policy 1. TEU Title V2. Safeguard

common values and interests3. Unanimous

voting (generally)

Police and Judicial

Cooperation1. TEU Title VI2. General law enforcement

activities3. Unanimous

voting (generally)

Remember the three keys: voting, voting and voting…See e.g., data retention, EU constitution, etc. etc.

EU History – What (3)Case study: external relations (p. 20)

Once again, confusion and uncertaintyExternal relations role highly controversial Actual role spread across numerous treaties over 50 years

Conclusion TBD

EU History – Treaties (1)

Treaty of Paris (1951)French Foreign Minister Schuman proposal on 5/9/1950Established now expired European Coal and Steel Community (i.e., common market) for six founding members: Belgium, Germany, France, Italy, Luxembourg and the Netherlands

Photo credit: European Commission

EU History – Treaties (2)

Treaty of Rome (1957)Established European Economic Community (EEC)Expanded ECSC common market to other goods/services; eliminated certain customs duties; formed common policy alliance

Photo credit: European Commission

EU History – Treaties (3)

Single European Act (1986)Established mechanisms for completion of EU single market by 1993

Treaty on European Union (1992)Changed name from “EEC” to “EC”Expanded MS cooperation into community structures, creating political “pillar” system and effectively forming the EU

Photo credit: European Commission

EU History – Treaties (4)

Treaty of Amsterdam (1997)Amended and renumbered the EU and EC treatiesChanged articles on TEU

Treaty of Nice (2001)Reformed institutions to address administrative needs resulting from EU enlargement

Photo credit: European Commission

EU History – Treaties (5)Treaty Establishing a Constitution for Europe (2004+)

Replaced existing treaties with a single textCreated “European foreign minister”Streamlined d-making processesRatification proved problematic (e.g., FR and NL “no” votes)See pp. 15-16 agreements

Photo credit: European Commission

EU History – Treaties (6)Lisbon Reform Treaty (2007+)

Wide ranging amendmentsNote differences with constitutional treaty proposal

From “European Union Minister for Foreign Affairs”……to “High Representative of the Union for Foreign Affairs and Security Policy”

Updates legal instruments and processesRatification once again highly controversial

Irish voteCzech Republic/Klaus

Observations from ISSE conference

EU History – The UK DynamicWhy single out the UK?

Anglo-Saxon connectionUseful case study of EU growing tensions

1950s-1970EU v. EFTA (European Free Trade Association)Applications rejected

1970-1980Finally in……but political and economic tensions continue

1980+Uncertainty, uncertainty, uncertainty

EU Growth and Expansion

EU Expansion – The Physical (1)

Photo credit: European Commission; One World-Nations Online

EU Expansion – The Physical (2)See pp. 23-24 for country listings

Do not underestimate the impact of:East Germany2004/2007 expansions

Jargon, jargon, jargon Acquis communautaireEU/EC (earlier slide)European Free Trade Association (Iceland, Norway, Switzerland, Lichtenstein) European Economic Area (no Switzerland)

EU Expansion – The Physical (3)

The future What – or where – is Europe?Morocco?Turkey (2013/2021)?Probably not Switzerland…Others?

EU Expansion – The PoliticalRemember earlier slidesPre-Single European Act

Initial success: From ECSC to competition to CAP Rising tensions: French boycott, Luxembourg Accords“Eurosclerosis” (1960s-early 1980s)

Single European Act (1986)Established mechanisms for completion of single market by 1993Led to wide-ranging policy, political and institutional change

Post-Single European Act EU expansion into new policy areas confirmed by TEU, Amsterdam, and Nice

TodayWill CT/RT votes result in retrenchment?Member States reasserting “their” rights?

Class Two – 1/13/09

Institutions and Community Legal

System (Daemen)

EU Institutions

Institutions: Overview

European Court of Justice

European Commission: Appointed officials EU “executive branch”

and enforcement authority

Wide-ranging power to initiate and enforce legislation

Representation in flux; divided by subject matter

Subject to limited parliamentary oversightEuropean Parliament:

Elected officials Supervises various EU

activities Role in legislative process

varies Representation in flux Shares budgetary

responsibility with Council

Council of the EU: “Council of Ministers” but

not the “Council of Europe”

Consists of MS ministers who help establish EU political objectives and coordinate with national policies

MS take turns holding “Council Presidency”

Voting rules depend on subject matter (highlight QMV)

European Court of Justice: Based in Luxembourg One judge from each MS Ensures EU legal

compliance and proper treaty interpretation

Remember: Reform Treaty, Reform Treaty, Reform Treaty

Institutions: Commission

Photo credit: European Commission

http://ec.europa.eu/commission_barroso/index_en.htm

Institutions: Commission (2)

Institutions: European Parliament

Photo credit: European Commission

Institutions: Council

Institutions: Council (2)

Institutions: ECJAs will see in case presentations, ECJ plays an extremely important role

Note Member State criticisms and UK effort to narrow the ECJ’s role

Procedure: 4 step process(i) Written proceedings(ii) Investigation / preparatory work(iii) Oral hearing(iv) Judgment

JurisdictionLegal: ensure proper interpretation and application of Treaty mandatesFactual: limited to fact patterns involving Treaty issuesGeographic: limited to Member States (though consequences far exceed)Note distinction between direct and indirect actions (discussed in greater detail in subsequent classes)

Institutions: MiscellaneousEuropean Central Bank

Manages the Euro and EU monetary policy

European Court of AuditorsSupervises EU expenditures

European OmbudsmanReceives, investigates and addresses inquiries about EU institutions

European Investment BankProvides financial support for EU developing regions

European Police Force (“Europol”)Facilities pan-EU police cooperation

Economic and Social CommitteeCoordinates “civil society” with EU institutional activity

And many more…

Sources of EU Law

EU Law: The GoalsUnderstand these goals, and the rest of the course is

easy:

EC Treaty, Preamble“DETERMINED to lay the foundations of an ever closer union among the peoples of Europe,RESOLVED to ensure the economic and social progress of their countries by common action to eliminate the barriers which divide Europe”

EC Treaty, Article 2 “The Community shall have as its task, by establishing a common market and an economic and monetary union and by implementing common policies or activities . . . to promote throughout the Community a harmonious, balanced and sustainable development of economic activities. . . .”

EC Treaty, Article 10“Member States shall take all appropriate measures . . . to ensure their fulfillment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community’s tasks. They shall abstain from any measure which could jeopardize the attainment of the objectives of this Treaty.”

EU Law: The Sources (1)Treaties

See day one discussionRemember: frameworks, not details, though scope has expanded considerably over the yearsNote 1: Language, language, languageNote 2: Protocols and declarations

Secondary legislation

Remember: Member States remain autonomous countries; there is no intrinsic right to EU-initiated secondary legislationAgain: language, language, language Art. 249, EC Treaty, governs

EU Law: The Sources (2)Regulation“[S]hall have general application. It shall be binding in its entirely and directly applicable to all Member States.”

Recommendations and Opinions“[S]hall have no binding force.”

TEC Art. 249

Plus (1), there are many non-Treaty policy instruments (e.g., resolutions, conclusions, etc.) Plus (2), there are many specialized second/third pillar instrumentsPlus (3), the Reform Treaty modifies this approach

EU Law: The Sources (3)International agreements

Legal personality: EU v. CommunityHaegemann: class discussion (Saza Osawa; Theodore Shultz; Katherine Bond)RT will further expand this powerIs all of this good, bad, or neutral?

European Court of JusticeTreaties are frameworks, ECJ interprets and fills-in the blanks… …which in turn leads to treaty/legislative changeNote broad scope of Arts. 220 and 230 (p. 80)

Human RightsGradual inclusion of human rights principles

EU Law: Administrative and Procedural Law Observations

Judicial reviewBroad ECJ interpretation of right to judicial reviewSee, e.g. Johnston (access to employment), Kuhner (general review of all decisions that impact individual rights)

Confidentiality and privilege“Dawn raids,” documents and privilege Compare AM&S with AKZO

ProportionalityTheme across EU law: take the least intrusive approachSee, e.g., EC Treaty Art. 5: EU efforts must be proportional and not exceed specific aims

EU Legislative Procedures

Legislation: Legal Basis (1)Remember: Member States remain autonomous countries; there is no intrinsic right to EU-initiated secondary legislation

EU Legislative and Policy Efforts Legal Basis / Structure

Economic Union / Internal Market

1. TEU Titles II-IV

2. 4 freedoms (people, goods,

services, capital)3. Qualified majority

voting (generally)

Common Foreign and

Security Policy 1. TEU Title V2. Safeguard

common values and interests3. Unanimous

voting (generally)

Police and Judicial

Cooperation1. TEU Title VI2. General law enforcement

activities3. Unanimous

voting (generally)

Legislation: Legal Basis (2)The critical issue: voting, voting, voting and the ability to “win”

Examples:

Case 68/86, UK v. Council (hormones)Result: UK request for unanimity rejectedCase 155/91, Commission v. Council (waste)Result: COM request for QMV rejectedCase 84/94, UK v. Council (working hours)Result: UK request for unanimity rejectedCase 295/90, EP v. Council (student residencesResult: EP request for cooperation – not consultation – upheldCase 300/89, Commission v. Council (dioxide)Result: COM request for QMV and EP cooperation rejected

…and soon to come, data retention!

High-level conclusion about ECJ precedent: when in doubt, give EP (and democratic principles) a chance

Legislation: Procedures (1)Consultation

EP consulted/asked for its opinionEP’s limited role led to concerns about “EU democratic deficit”

CooperationEnhanced EP role b/c rejection requires Council unanimityEffectively displaced by codecision

AssentEP assent requiredVery blunt (up/down, no amendments), so use limited to particularly significant issues

CodecisionUsed for most modern EU law-makingCOM, EP, Council share legislative power

Who decides?Certain treaty requirements, but plenty of “gray area”But remember, COM generally initiates

Legislation: Procedures (2)

Photo credit: European Commission

Codecision

Legislation: Procedures (4)Why so many procedures?

Historic happenstance Competing stakeholdersCompeting goals, e.g., realization of internal market v. democratic idealsUS complexity + significant additional nuance Don’t forget CT and RT efforts

Does any of this really matter? Let’s look at a current hot topic…

Legislation: Procedures (5)

• TEC articles 95 and 251

Treaty Basis

• Codecision

Resulting Legislative Process

• Directive adopted, but only after major influence from EP, civil society, national authorities, etc.

Practical Consequences

• TEU articles 30, 31 and 34

Treaty Basis

• Third pillar process

Resulting Legislative Process

• Not adopted?• Adopted with very

different terms?

Practical Consequences

Actual DR procedure:

Alternative DR procedure: