The EU treaties, institutions and decisionmaking process

1
The EU treaties, institutions and decision-making
process

• International Constitutional law and democracy
• Lecture 18.10.07
• Inger-Johanne Sand

2

• The challenges of the new inter-, supra- and
  transnational law
• The democratic and national constitutional
  regimes have for their legitimacy been based on
  the legitimacy of human rights and democratic
  elections and procedures
• - The legislative authority is elected
  democratically, based on universal and equal
  voting rights for all citizens.
• - The legislature works by majority decisions
  after having been prepared by the executive and
  having been made publicly known (transparency).
• - The executive is at all times accountable to
  the democratic parliament.
• International decision-making is enacted by the
  participating states, often by procedures which
  are more intransparent and without the direct
  democratic procedures or executive
  accountability.
• The present forms of national democratic
  procedures are however not sufficient if we take
  the trans-boundary nature of the problems into
  considerations.

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• Division of powers in nation-states
• - constitutionally based,
• - legislative competences, - democratically
  elected, - and democratically accountable,
• - executive competences, - accountable to the
  parliament,
• - judicial courts, - autonomous, rule-of-law,

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• Supranational treaties
• powers given to the constitutional authorities or
  parts of them are transferred on to an
  international organisation, so that they can
  employ them,
• legislative, judicial, executive, treatymaking
  so that decisions will have direct effect for the
  citizens of the nation-states involved,

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The EU treaties and institutions

• European Council - heads
  of state,
• 
  constitutional
• Council of Ministers -
  government ministers
• 
  legislative / political
• (COREPER member-state permanent
  representations,)
• European Commission - 27 commiss. app. by
  memberst.govt.
• - 26
  directorates-general,
• -
  applying EU treaties, initiat.legislation
• European Parliament - 732 MEPs, direct
  elections,
• 
  - legislative, budgets, control,
• European Court of Justice 27 judges, app.
  memb.st.
• -
  autonomous court, applying EU treaties

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• European Council - member states and
  European
• 
  constitutional
  
• Council of Ministers - member states and
  European
• government
  ministers
• 
  legislative, political,
• COREPER member-state permanent representations,
  - admin.,
• European Commission - European ,
• -
  27 commiss. app. by memberst.govt.
• -
  executive, - legislation initiative
• -
  decision-making,
• European Parliament - European, member states
• -
  732 MEPs, direct elections,
• -
  legislation, - budgets,
• European Court of Justice - European
• -
  judicial,

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• The constitutionality of the EU
• - direct effect of regulations, directives and
  treaties,
• - not only the governments, but also the peoples,
  
• - supranationality,
• - comprehensive legislative competences,
• - comprehensive administrative apparatus/
  powerful
• Commission with comprehensive adm., execut
  powers,
• - admin and judicial decisions sanctionable in
  member st.
• - judicial review of directives in relation to
  treaties,
• vertically integrated politico-legal systems,
• judicial review
• no legislative/constitutional kompetenz-kompetenz
  

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• Many new questions arise with the supranational
  treaties which did not arise with the
  international
• - purpose-oriented interpretation,
• - implied powers,
• - proportionality,
• - human rights,
• When does a supranational treaty also become a
  constitutional treaty
• - several types of power are transferred,
  building on each other
• - legislative, judicial (sanctionable), and
  executive/preparatory,
• - direct effect on citizens,
• - to create a vertically integrated legal order
  of its own,

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• What have the vital changes been?
• - the starting point the Rome treaty,
• - not only the states, also the peoples,
• - the European Court of Justice,
• - the cases van Gend en Loos, - Costa Enel,
• - direct effect, - supremacy, - judicial
  review,
• - the acquis communautaire,
• 1986 the Single European Act,
• - qualified majority, - the internal market,
• 1992 Maastricht - extended competences,
• - the Euro,
• Lisbon - social coherence
• Nice extended competences,

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• Theories
• Intergovernmentalism - the member states are
  still the main actors,
• Neo-functionalism - the doctrine of direct
  effect, the internal market and the practice of
  the Commission and the Court, etc., have created
  a particular dynamic, with spill-over effects,
  
• Constitutionalism vertical integration
• - strong and weak versions,
• Federations confederations or sui generis?

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• The role of the Commission
• - monopoly in preparing and taking initiatives
  for legislation, - committees,
• The role of the Council / Parliament
• - legislative and other decision-making,
• The role of the Court
• - judges are appointed by member-states, but the
  Court is fully autonomous,
• - legal basis - the EU treaties,
• - ensuring EU law conformity in the EU and in the
  member states,
• - judicial review, - dirctives / treaties,

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Legislative decision-making process in the EU

• The Commission prepares,
• Expert committees,
• Committees with member state bureaucrats
  elaborate and evaluate,
• (national processes of discussion, evaluation)
• Commission delivers proposal to Council /
  Parliament,
• COREPER (member state permanent representatives)
• Council sub-committees,
• Council discussion and decision
• Parliament discussion and decision,
• If not in agreement - co-decision procedure and
  committee with Council and Parliament, - final
  decision,
• Comitology committees - memb.state govt. repr.
  meet to discuss coordination of implementation,
  -voluntary, under Commission,

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• The competence of the Court
• art.230 flw. direct actions
• - cases by EU institutions against member states,
  (for non-compliance), - or by member states
  against the EU,
• - cases by EU citizens against EU institutions or
  member states to secure rights by EU legislation,
  
• - cases by corporations in the EU against EU
  institutions or member states concerning EU law,
• Art.177 / 234 - preliminary rulings,
• - national courts must consult ECJ concerning the
  understanding of the EU treaties, legislation,

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• Organization
• - 25 judges, - 6 yrs., - European,
• - Palais de Justice, Luxembourg,
• Court of First instance, (less complicated
  cases)
• The Court chambers,
• 8 general-advocates,
• - French, English,

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The Court and the national institutions

• - the relative position of the Court in the EU,
• - the Courts contribution to the aquis,
• - the Court and the national courts,
• - art.234,
• - the role of law in the EU,
• - the Court and the national executive and
  legislative branches,
• - the role of law in the EU,
• - the democratic problem of the Courts
  position?

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Constitutional characteristics of the EU

• - supranational and international organization,
• - comprehensive legislative competences, but
  enumerated and not general,
• - vertically integrated treaties and
  institutions,
• - lack of direct democratic accountability, - for
  both Council and Commission,
• - the EU Commission as an independent and
  powerfull executive,
• - legislative initiative Commission,
• - the role of committees,
• - independent international court with judicial
  review,

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Vital doctrines by the Court

• - direct effect,
• - supremacy,
• - human rights,
• - implied powers,
• - not only discrimination, but also obstacles to
  trade,
• - etc.,

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Some vital cases in the history of the Court
parts of the aquis communautaire

• - van Gend en Loos, 26/62
• - Costa Enel, 6/64,
• - Statistical Levy, 24/68
• - Dassonville, 8/74,
• - Cassis de Dijon, 120/78
• - Torfaen, 145/88,
• - Keck, 267 and 268/91,

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• EU-domstolen sag 26/62 Van Gend en Loos -
  direct effect
• - more than a treaty merely creating mutual
  obligations among states.,
• - the preamble of the treaty mentioning not only
  governments, but also the peoples of Europe.
• - The European Economic Community constitutes a
  new legal order of international law for the
  benefits of the states..and the subjects of
  which comprise not only Member States, but also
  their nationals
• not only imposing obligations on individuals
  but is also intended to confer upon them
  rights..

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Costa Enel, 6/64 supremacy

• unlike ordinary international treaties, the EEC
  treaty has created its own legal system. This
  became an integral part of the legal systems of
  the Member States.
• The Member States have permanently limited their
  sovereign rights..
• The law stemming from the Treaty.could notbe
  overridden by domestic legal provisions..

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The free of movement of goods etc.

• EC-treaty
• Art.28
• Quantitative restrictions on imports and all
  measures with equivalent effect shall be
  forbidden among the member states.
• Art.30
• The regulations of art.28 and 29 shall not be of
  hindrance to restrictons on import, eksport or
  transitt based on the consideration of public
  morality, the protection of human, animal and
  plant life and health, national treasures of
  artistic, historical or archeological value, or
  the industrial or commercial legal protection.

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The freedom of movement

• The Statistical Levy case, Commission vs. Italy,
  24/68,
• - a small charge levied upon imported and
  exported goods, violating EEC art.9, 12, 13, 16,
  
• - the charges were small, but they violated a
  general ban on charges with equivalent effect of
  customs,
• - this is the first decision with the expansive
  interpretation of equivalent effects,
• Dassonville, Procureur du Roi v Dassonville,
  8/74,
• - a charge of certificates of origin for
  certification of original whisky, Belgian govt
  accepted only British certif.,
• - hindering cross-border trade, and having an
  equivalent effect to quantitative restrictions, -
  discriminatory,
• - market regulation, not direct, indirect
  obstacle,

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• - in both cases charges or measures having an
  equivalent effect,
• - but the logic is more obstacle than
  discrimination-based regime,
• - what is discrimination ?
• - what are obstacles to trade ?
• - what are the consequences of the differences?
• - not merely a regime of fair trade, but a regime
  more designed to remove all unjustified
  obstacles to trade,
• Why ? - It may be technically difficult to tell
  when a measure is discriminatory, or not, -
  whereas unjustified obstacles may be easier to
  distinguish, - and will include measures which
  are deemed to be de facto protectionist.

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• Cassis de Dijon, 120/78,
• - French alcoholic beverage with a lower
  disallowed in Germany,
• - this was deemed discriminatory, and a measure
  with the equivalent effect of quantitative
  restrictions on trade, - and with no other
  legitimate purpose,
• - were the national laws seen as necessary to
  protect human health and consumer interests ?
• - no, the alcohol in question was weaker than
  similar beverages,
• - and the alcohol content may be labelled, and a
  ban would thus not be necessary for consumer
  protection,

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• Keck, 267-268/91,
• - a ban on further sale with a loss,
• - obstacle to trade,
• - but was deemed to be general for all goods and
  not have specific consequences for imported
  goods,
• - the Court formuated a more moderate version of
  the obstacle to trade practice,

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Free movement of services, EC art.49

• - hospital services, Watts, ECJ C no. 372/04,
• - EC art.49, and EC regul. No. 1408/71,
• - the regulation grants an individual right to
  such services in any member state,
• - when covering of costs is involved, prior
  authorisation of home state may be demanded,
• - such authorisation may only be denied when this
  can be objectively justified, by general
  interests,
• - the risk of seriously undermining the
  financial balance of social security system may
  constitute such interest,
• - such reasons must be based on objective,
  non-discriminatory criteria, which are known in
  advance, - and requirements of proportionality,
• and applied non-arbitrarily,
• - and must be dealt with objectively,
  impartially, in reasonable time, and with
  judicial proceedings,

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The EU and the Member States

• The Rome treaty, the doctrines of direct effect
  and supremacy,
• a new international legal order
• mentioning not only states but also its
  nationals,
• .not only imposing obligations on individuals
  but also conferring rights upon them.,
• - a supranational legal order with direct effect
  of EC legislation for the citizens, and supremacy
  of EC/EU law in relation to national law,
• - EU citizenship,

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The institutional architecture of the EU

• European Council - the European and
  semi-constitutional level, - treaty amendments,
• (European, heads-of-state, member-state
  represent.)
• European Commission - European, loyalty to the
  EU treaties, - preparing/proposing legislation,
• (Commissioners controlled by Parliament)
• Council of Ministers - European and member-state
  loyalty, - legislative and decision-making body,
• (ministers from memb.state governments,)
• European Parliament - elected by member state
  citizens directly, - European by loyalty,
• (co-decision legislature)
• European Court of Justice - proposed by member
  states, but European in function, - loyalty to
  the Treaties,

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Member States

• - primary influence - Council representation
  and vote,
• - the apparatus of the national governments,
• - member state representations in Brussels,
• - COREPER committee of permanent
  representatives,
• - committes under the Commission / nat.
  represent.,
• - committees under the Council / national
  represent.,
• - implementation procedures,
• Wild card - members of the European
  Parliament, - they work both European and for
  national interests,
• The change from unanimity to qualified majority
  voting in all internal market areas,
• - the states lose their power of veto,

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• Areas of EC legislative and policy authority
• - EC art.28 and 30, quantitative restrictions,
  and measures with equivalent effects,
• - the internal market, free movement,
  competition,
• - agriculture,
• - environment, consumer protection,
• Areas in which authority is shared
• - employment, energy, environment, social issues,
• - foreign relations,
• - regional development,
• Areas in which balance lies in Member States
• - broadcasting, citizenship, education, health,

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The power

• The Commission, and what it chooses to focus on,
  and prepare,
• The Council,
• Patterns of bargaining procedures,
• Single member states right to veto in some cases,
  or just showing their power in others,
• The internal market, free movement, competition
• - art.28 etc. all other regulations must
  comply, or not be in contradiction of,

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Historically

• - starting out with more moderate policy
  initiatives and legislation, - 1960-70-ies, - and
  unanimous legislation,
• - the Single European Act, 1986,
• - qualified majority voting,
• - a more ambitious plan for an effective market,
• - framework directives, - standardization,
• - harmonizing directives, - much more legislative
  activity in areas of social regulation,

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• Incrementalism or radical changes
• - the EU as exemplary of both,
• - the normal situation - incremental change,
• - decisions have been taken since 1986 several
  radical and comprehensive
• - the Single European Act, (Delors )
• - Maastricht, (several reforms) (citizenship)
• - the Euro and the European Bank,
• - Eastern enlargement,
• How was such comprehensive change possible in
  such a short time ?
• The Constitutional Treaty and why this has
  failed, so far?

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• Multi-level governance
• - overlapping, combining, cooperative and
  competing competences,
• Constitutionalism,
• - vertically integrated legal system,
• - judicial kompetenz-kompetenz, but not
  legislative,
• The proposal for a Constitutional Treaty,