Dia 1

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Constitutional Principles of EC/EU Law,
Institutional Reforms of the Union/Summary
lecture Part I 6. October 2008, 6. lecture EU
Law I Institutional Law of the EU
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Overview lecture 6

• Constitutional Principles depending on which
  players involved
• - EC and Member States
• - Among EC institutions
• - EC law and citizens
• The Constitutional Treaty, the Reform Treaty and
  differences to EC/EU Treaty
• Summary Part I

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Legal sources of the constitutional future

• EC/EU Treaty (last changes by Treaty of Nice and
  Accession Treaties)
• Constitutional Treaty 2004 http//eur-lex.europa
  .eu/JOHtml.do?uriOJC2004310SOMENHTML
• Reform Treaty 2007 http//www.consilium.europa.eu
  /cms3_fo/showPage.asp?id1317
• Divides into TEU and TFEU

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(No Transcript)
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Constitutional Principles between EC and Member
States

• The EC as constitutional system and autonomous
  legal order and democracy
• Direct effect and supremacy of EC law
• Sincere cooperation, Art.10 EC
• Principle of attributed competences, Art.5
  (subpara.1)
• Subsidiarity and proportionality principle, Art.5
  EC (other subparas.)

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Constitutional Principles between EC and Member
States

• The EC as constitutional system and autonomous
  legal order
• Van Gend and Loos, Costa and ENEL emphasising
  the principles of autonomous legal order,
  supremacy and direct effect

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Constitutional Principles between EC and Member
States

• Constitutional system based on common principles,
  see Art.6 EU
• Based on liberty, democracy, rule of law, and
  full protection of human rights
• Art.46 EU confirms for Art.6 EU jurisdiction in
  regard to action of the institutions

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Constitutional principles autonomous legal order

• Autonomous legal order attributed with own
  competences and executing an effective (effet
  utile) system of law which binds MS and
  individuals
• Effet utile general interpretation method
  connected with direct and indirect effect of EC
  law, obligation to fully apply and give effect to
  EC law Art.10 EC

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ECJ on rule of law and democracy

• ECJ
• the fundamental democratic principle that the
  people should take part in the exercise of power
  through the intermediary of a representative
  assembly
• EU based on the rule of law, separation of
  powers, independent judiciary, with legal review
  of EU measures

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ECJ on rule of law and democracy

• ECJ and CFI The European Community is based on
  the rule of law, the EC Treaty constitutes a
  constitutional charter and creates a new legal
  order, which established a complete system of
  legal remedies and procedures to permit the Court
  of Justice to review the legality of acts of the
  institutions.
• Cases Opel Austria CFI Case T-115/94
• Les Verts ECJ Case 294/83

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Constitutional Principles between EC and Member
States

• The Constitutional Treaty and Reform Treaty on
  democracy and rule of law
• In Art.3 TEU about the Unions values
• values of respect for human dignity, freedom,
  democracy, equality, the rule of law and respect
  for human rights, including the rights of persons
  belonging to minorities. These values are common
  to the Member States in a society in which
  pluralism, non-discrimination, tolerance,
  justice, solidarity and equality between women
  and men prevail.

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Constitutional Principles of EC/EU law Supremacy
of EC law

• Reflected by jurisdiction Van Gend and Loos and
  Costa and ENEL, in the Constitutional Treaty in
  Art.I-6 but excluded from Reform Treaty with
  reference to existing case law in annexed
  Protocol
• Supremacy Primacy of European law and supersedes
  conflicting national law

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Constitutional Principles of EC/EU law Direct
effect of European law

• Art.249 (2) EC clarifies the direct application
  of regulation/direct effect of regulations
• Direct effect of primary law fundamental
  freedoms (esp. non-discrimination, Art.39 EC) Van
  Gend and Loos
• Direct effect of directives under certain
  circumstances (non-implementation, precise and
  clear) see case law

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Constitutional Principles of EC/EU law EC and MS

• Direct effect
• Individual can rely in court on a provision whose
  interpretation (wording, scheme and scope) gives
  rise to direct effect
• (giving rights to individual)
• Vertically individual v. state
• Horizontally? individual v. individual

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Constitutional Principles of EC/EU lawSincere
cooperation Art.10 EC

• - applies to relations between the Communitys
  institutions,
• - to the relations of the Community with
  its Member States and,
• - between Member States and the Community.

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Constitutional Principles of EC/EU law Art.10 EC

• Duties are
• - all appropriate measures to ensure the
  fulfilment of Community obligations
• - abstain from any measure which might jeopardise
  the attainment of Treaty objectives.

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Constitutional Principles of EC/EU law Art.10 EC

• Justified the establishment of MS state liability
• The interpretation of national law in the light
  of European law (indirect effect)
• Reflected in Art.I-5 CT and Art.4 (3) TEU
• The duties are now spelt out in this provision
• Linked to respecting equality of Member States

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Principle of attributed competences, Art.5 EC
(subpara.1)

• Community needs a justification when it acts
• Closely connected with the principle of rule of
  law and democracy, subsidiarity and
  proportionality
• RT in Art.4 (1) , Art.5 (1 and 2) TEU
• RT strengthens this principle

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Principle of subsidiarity and proportionality,
Art.5 EC

• Proportionality closely connected with the rule
  of law
• Limits the powers of both the Community and
  Member States to act and has a decisive
  procedural aspect (see act of annulment).
• Problem of legal definition of subsidiarity
• Protocol on subsidiarity and proportionality
• Avoidance of centralisation, restricts the
  exercise of powers
• RT Art.5 (3) and (4) TEU

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Proportionality test Questions

• Is the measure suitable to achieve a legitimate
  aim?
• Is the measure necessary to achieve that aim, are
  less restrictive means available?
• Does the measure have an excessive effect on the
  applicants interests?

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Constitutional Principles of EC/EU law among EC
institutions

• Institutional Balance, Art.7 EC
• RT Art.13 (2) TEU
• Sincere Cooperation, Art. 10 EC
• RT Art.4 (2) TEU

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Constitutional Principles of EC/EU law among EC
institutions

• Institutional balance
• Reflected between EC and EU Art.3 EU and 5 EU
  single institutional framework ensuring
  consistency and continuity of activities
• Problem of clear definition without clear
  separation of powers legal principle reflected
  in Art.7 EC

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Constitutional Principles of EC/EU law

• Institutional balance
• Division between judicial, executive and
  legislative powers, checks and balances
• Checks and balances restrain institutions and
  allow them to control each other
• examples in legal review and control mechanism
  such as EP towards Commission

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Constitutional Principles of EC/EU law

• Institutional balance
• Argument used to strengthen the role of the EP
• Helping to determine the correct legal base
• RT Art.13 (2) TEU, linked to sincere cooperation

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Constitutional Principles of EC/EU law EC law
and the citizen

• Protection of human rights and citizenship rights
  by EC institutions and EC law
• No coherent system of protection at the beginning
  of EC Treaty
• Pressure by national constitutional courts (since
  1970s) to have a human rights protection when
  adopting EC secondary law

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Constitutional Principles of EC/EU law EC law
and the citizen

• ECJ Stauder case (1969), Nold (1974), Rutili
  (1975)
• Human rights as fundamental principles of
  Community law and ECJ refers later to European
  Convention on Human Rights ECHR - (Council of
  Europe)
• ECHR forms part of general principles common to
  all the Member States.
• See Art.6 (2) EU

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Constitutional Principles of EC/EU law EC law
and the citizen

• 1999 Charter of Fundamental Rights of the EU, not
  legally binding but taken into consideration as
  soft law
• With CT as second part - legally binding set of
  modern fundamental and social rights,
• RT Art.6 TEU Charter of Fundamental Rights of
  the EU legally binding, Union shall accede to
  ECHR
• Scope Relevant for Union institutions and MS
  when implementing Union law

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Constitutional Principles of EC/EU law EC law
and the citizen

• Principle of proportionality, Art.5 (subpara.3)
  EC
• - Restriction on fundamental rights can only be
  imposed when in interest of general public and do
  not interfere intolerably with the rights
  protected

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Constitutional Principles of EC/EU law EC law
and the citizen

• Principle of Transparency, Art.255 EC
• Reinforcement of democratic legitimacy, Accession
  of Nordic countries , With Amsterdam Art.255 EC
  introduced
• Gives EU citizen access to EC documents
• Necessity of sound management and good
  administration
• Can be denied on grounds of public interest,
  interest of the individual, financial interests
  Community
• Newer case law Cases C39/05 P and C-52/05 P
  stress importance in legislative process for
  legitimacy

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Summary

• Constitutional and fundamental principles
  developed over the years through jurisdiction and
  practice in directions EC institutions, MS and
  citizens
• Some of them found entry into EC and EU Treaties
• Some other added with CT/RT and streamlined with
  ECJ jurisdiction
• Piecemeal approach reflects the complexity of the
  existing systems and legal orders

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The Reform Treaty 2007

• Keep two Treaties
• But one legal personality and merging of pillars,
  competence catalogue introduced in TFEU
• Inclusion of Charter of Fundamental rights as
  separate document with reference that Charter has
  the same legal value as Treaties
• CT left-overs Extending qmv and establish
  permanent Council presidency, reducing number of
  Commissioners, withdrawal clause

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The Reform Treaty 2007

• http//www.law.leiden.edu/general/img/Lisbon_Treat
  y_summaries_tcm19-59722.pdf
• Downtone language
• No minister of foreign affairs (High
  Representative)
• No constitution
• No new legal instruments
• Same inherent problems merging of pillars but
  keeping the differences in decision-making and
  legal review (esp. For former 2.pillar)

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The current pillar system

• Pillars of supranational (EC) and
  intergovernmental nature in form of CFSP and
  PJCCM and legal personality only given to EC
  (Art.281 EC)
• Resulting in
• - difference in decision-making
• - difference in legal instrument
• - difference in legal control of ECJ

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The current system Difference in decision-making
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The current system Difference in legal
instruments and effect
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The Current system Difference in legal review by
ECJ
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Reform Treaty TEU and TFEU
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Summary Part I

• Keywords General terminology
• Keywords EU Institutional law
• Keywords EC as special legal order
• Keywords Legal protection/procedures

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Keywords General terminology

• Legal terminology
• What are legal sources?
• What are legal principles?
• What is the hierarchy of norms?
• What is the difference between public and private
  law?
• What is constitutional law?
• What is international law?
• What is national law?

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Keywords EU Institutional law

• The Institutions and their actions
• Supranational/intergovernmental three pillar
  system
• What are the tasks of the different EU/EC
  institutions?
• Legal basis, what is a legal basis and can you
  use multiple legal bases?
• Legal effect of EC legal sources
• Different decision- and legislation-making
  procedures
• Fundamental institutional principles
• Legal procedures/review

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Keywords EC as special legal order

• The special legal order
• EC as a supranational legal order based on
  principles of supremacy and direct effect
• Constitutional system based on fundamental
  principles and full legal protection
• Difference between supranational
  intergovernmental pillars

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What is supranational?

• MS delegate certain competences to the common
  legal constitutional system of the Union
• which constitutes of independent legal
  institutions e.g. Commission and ECJ
• which implements and applies European law
  uniformly in all Member States and
• whose laws and legal principles take primacy over
  the national law and
• which are protected by an effective legal system

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The three pillars of the European Union why are
they different?
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Keywords Legal effect of primary and secondary
EC law

• Legal effect of EC Treaty (primary law) and EC
  legislation (secondary law)
• Direct effect, indirect effect and state
  liability
• Vertical and horizontal effect difference and
  why does it matter?

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Keywords Legal protection/procedures

• Legal protection/legal procedures
• Depending on subject of dispute and legal status
  of applicant (institutions/MS and individuals in
  form of natural or legal person)
• Art.234 EC
• Art.230/232 EC
• Art.226/227/228 EC
• Art.288 EC

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Institutional law of the EC/EU

• The Institutions and their actions
• What are the tasks of the different institutions?
• Legal basis
• what is a legal basis and
• can you use multiple legal bases
• Different decision- and legislation-making
  procedures
• Input of EP varies from consultation to
  co-decision
• Fundamental institutional principles
• Attribution of competences
• Proportionality/subsidiarity
• Institutional balance

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Who are the actors of the European Community?

• The Five Institutions actors to make laws and
  apply/interpret them in the first EC pillar
• Commission
• Council of Ministers
• European Parliament
• Court of Justice Court of First Instance
• Other Bodies Eco Soc Com. Comm. of Reg.

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Commission Powers Tasks Art.211

• Legislation initiative to make legislations,
  delegated legislation from Council
• Executive powers and supervisory powers
• Implementation of EC law (infringement procedure)
• Administration through bodies and agencies
• External representation (delegation)
• Policy-making, administration of funds

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Council of the EU Tasks Powers, Art.202

• Legislative and executive functions
• Co-ordination of broad economic policies
• Conclusion of international treaties
• Making of EC legislation and decision-making
• Budget (together with EP)
• Second and third pillar (CFSP and Co-ordination
  in police co-operation and criminal matters)

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EP- Tasks Powers

• Legislative and supervisory powers
• Legislative inputs depends on legal
  basis/procedure and policy field
• From Co-decision, 251 EC, to only being heard
• ask the Commission to initiate legislation
• EU Budget (together with Council)
• Committee of Inquiry to investigate alleged
  contraventions
• Election and Motion of censure against Commission

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EP- Tasks Powers

• Supervision of the Commission
• Approve President of Commission
• Approve College of Commissioners
• Dismiss Commission (as a body) (201 EC)
• Power of inquiry (committee, 194 EC)
• Appointment of an Ombudsman
• Other institutions (European Council, Council,
  ECB) submit reports

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The Common Judiciary

• European Court of Justice (ECJ)
• Court of First Instance (CFI)
• (Judicial Panels EU Civil Service Tribunal)
• National courts (234 EC)
• Division of tasks ECJ and CFI blockbook pp.30-31