Legal expertise of Lisbon treaty.

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Legal expertise of Lisbon treaty.

• Prof. Tanel Kerikmäe

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Hierarchy of norms
European Union law
International law
Constitution
Constitutional laws
Presidential Decree
Laws
Local Government regulations
Govt regulations
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EU law influences most of the legal regulation
Private law
Public law
Law of obligationsContract law
Administrative law
Criminal / Penal law
Civil liability
Constitutional law
Bankruptcy law
Banking law
Business law
Labour law
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EU LEGAL SYSTEM

• Supranational character of primary and
  secondary legislation, delegation of powers
• Internal market (four freedoms) as priority
• Relevance of ECJ jurisprudence
• Emerging constitutionalism and attempts to create
  citizens Europe

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Primary Legislation
DA with implementation act of EU
Directly applicable
Original (constitutional) law
Legal doctrines and principles
Communitarized international law (e.g. Customary
law)
Basic Treaty and the amending treaties to it
International treaties signed by EC or MS-s
International agreements between MS-s
Accession treaties
NO DA
Protocols, annexes, declarations
MS acts adopted at Council meeting
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Secondary Legislation
Directly applicable
Delegated legislation
Decisions of ECJ
Conditionally DA
Legal acts binding entirely
Harmonization measures
Legally not binding
Soft Law recommendations, opinions,
declarations, communications, resolutions,
explanatory letters, academic opinions etc.
Framework directives, directives
Regulation
Decision
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European Constitution Why and how?

• continue the work accomplished within the
  framework of the Treaties establishing the EC and
  the TEU, by ensuring the continuity of the
  Community acquis
• Estonian Government approved 21. oct 2004, and
  forwarded to Riigikogu for ratification, then
  ratified it twice

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Terminology

• the words common market shall be replaced by
  internal market the word ecu shall be
  replaced by euro

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Sergio Dellavalle Constitutionalism Beyond the
Constitution 2009

• The Lisbon marks the end of the project of a
  European Constitution?
• EU Basic law has to be considered
  constitutional law
• The concept of Constitution
• Competences of public power
• Safeguard of the rights of the individuals
• Normative guarantee of the legitimation of public
  power
• Identity of the political community

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Laurent Pech The Rule of Law as a Constitutional
Principle of the EU

• Common principle (Maastricht art 6(1), Preambul
  of Lisbon and Charter
• Distinctive features of EU (autonomous
  interpretation)
• Le Verts 1986) Community based on rule of law
• Judicial activism of the ECJ (creative function)

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Rule of law

• Confusing III pillar structure disappearing
• The Constitution and law adopted by the
  institutions of the Union in exercising
  competences conferred on it shall have primacy
  over the law of the Member States.
• EU shall have legal personality capacity to
  conclude international agreements and be
  adjudicated

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Legal ground for divorce

• MS may decide to withdraw from the Union in
  accordance with its own constitutional
  requirements
• shall notify the European Council
• the Union shall negotiate and conclude an
  agreement with that State, setting out the
  arrangements for its withdrawal

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Categories of competence

• When the Constitution confers on the Union
• exclusive competence in a specific area, only
• the Union may legislate and adopt legally
• binding acts, (MS only if empowered by the
• Union)
• Customs union, competition and common trade
  policy etc
• NB! May also be realised through an
• international agreement
• Other shared (and MS) competence

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Exclusive competence

• Article 2 B1. (a)customs union(b) the
  establishing of the competition rules, monetary
  policy for the Member States whose currency is
  the euro the conservation of marine biological
  resources under the common fisheries policy
  common commercial policy

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Shared competence

• (a)internal market (b)social policy, for the
  aspects defined in this Treaty (c)economic,
  social and territorial cohesion (d)agriculture
  and fisheries, excluding the conservation of
  marine biological resources (e) environment
  (f)consumer protection (g) transport
  (h)trans-European networks (i) energy (j)area
  of freedom, security and justice (k)common
  safety concerns in public health matters, for the
  aspects defined in this Treaty.

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Reform of Judicial system

• The Court of Justice of the European Union shall
  include the Court of Justice, the General Court
  and specialised courts
• Frame for judicial activism
• Differentiation of judicial powers in different
  level

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Support, coordination, supplementing

• The Union shall have competence to carry out
  actions to support, coordinate or supplement the
  actions of the Member States. The areas of such
  action shall, at European level, be(a)protection
  and improvement of human health (b) industry
  (c) culture (d) tourism(e)education, vocational
  training, youth and sport (f)civil protection
  (g)administrative cooperation..

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Solidarity

• (a)(b) prevent the terrorist threat in the
  territory of the Member States protect
  democratic institutions and the civilian
  population from any terrorist attack assist a
  Member State in its territory, at the request of
  its political authorities, in the event of a
  terrorist attackassist a Member State in its
  territory, at the request of its political
  authorities, in the event of a natural or
  man-made disaster.

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Enhanced cooperation

• Member States which wish to establish enhanced
  cooperation between themselves in one of the
  areas covered by the Treaties, with the exception
  of fields of exclusive competence and the common
  foreign and security policy, shall address a
  request to the Commission, specifying the scope
  and objectives

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New legal acts (initial proposal)

• European laws (ex regulation)
• European framework laws (ex directive)
• European decisions (ex decision)
• European regulation shall be a non-legislative
  act of general application for the implementation
  of legislative acts and of certain provisions of
  the Constitution

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Legislative process

• Legislative process is tied with the concrete
  form of legal act as a rule
• Differentiation of legislative (art I-34) and
  non-legislative (art I-35) acts,
• Delegated European regulations (art I-36)
  (Commission) and implementation acts (I-37)
  (Member States)

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Transparency of decision making (art I-50)

• The European Parliament shall meet in public,
  as shall the Council when considering and voting
  on a draft legislative act.

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Participatory democracy?

• Not less than 1000 000 citizens who are
  nationals of a significant number of Member
  States may take the initiative of inviting the
  Commission, within the framework of its powers,
  to submit any appropriate proposal on matters
  where citizens consider that a legal act of the
  Union is required for the purpose of implementing
  the Constitution.

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Choice of values

• Remembering Haider case
• Eugen Schmidberger v Republik Österreich 2004
• Willingness to grow up recognition of
  superiority of Human Rights

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Protecting human rights (art I-9)

• EU catalogue of rights Charter of Fundamental
  Rights constitutes Part II.
• No isolation from international protection
  The Union shall accede to the ECHR. Such
  accession shall not affect the Union's
  competences as defined in the Constitution.

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III act of the Constitution

• The Constitution of the Republic of Estonia
  Amendment Act Passed 14 September 2003 (entered
  into force 14 December 2003).
• 1. Estonia may belong to the European Union in
  accordance with the fundamental principles of the
  Constitution of the Republic of Estonia.
• 2. As of Estonias accession to the European
  Union, the Constitution of the Republic of
  Estonia applies taking account of the rights and
  obligations arising from the Accession Treaty.
• 3. This Act may be amended only by a
  referendum.

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Whats next?

• Unusual implementation act, unclear positioning
  in Estonian legal order?
• Ratifying EU Constitutional Treaty - expanding
  delegation of State powers? Draft law of
  ratification (645 SE I) indicates to
  consolidation, but also to several significant
  changes etc
• Is there a need to change IIIrd act/change the
  limits of delegation of powers (accession
  treaty)?

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Homework 2

• Essey on conflicts between constitution of
  particular MS and EU (constitutional) law
• 5 pages, 1,5 space, Times New Roman
• Deadline 1 of March
• 8 March, conclusions of the esseys and seminar
  by Mitchiru Nagatsu

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Reading

• Case law of ECJ
• European Supreme and Constitutional Courts
• Analytical articles (see Jean Monnet papers,
  Westlaw etc)
• http//www.tlulib.ee/files/arts/92/SOTS_1fcdba4377
  32c547bfea3f8c0ea01960.pdf (Tanel Kerikmäe,
  ESTONIA IN THE EUROPEAN LEGAL SYSTEM PROTECTION
  OF THE RULE OF LAW THROUGH CONSTITUTIONAL
  DIALOGUE
• Kerikmäe, T. Nyman-Metcalf, K. (2010). Karlsruhe
  vs. Lissabon an Overture to a Constitutional
  Dialogue? European Journal of Law Reform, (will
  be published 2011)

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Thank you!