EU Law: Introduction& The Treaties

• legal system of EU-> "new legal order"; "sui generis" (of its own, unique type)
• member states 8currently 27) belong to supranational organisation governed by institutions to which member states have transferred certain powers/have given competence to enact legislation (within limits) which bind these states
• EEC (later EC) established by Treaty of Rome 1957
• in its early case law, Court of Justice created twin principles of "direct effect" established in: 26/62 van Gend en Loos v Nederlandse Administratie der Belastingen (1963) ECR1 and 6/64 Costa v Enel (1964) ECR 585

Background to establishment of EEC/Constitutional Base of the Union

• there are several treaties which together represent primary law of EU -> its constitutional base
• Treaty of Paris: founded European Coal and Steel Community (ECSC) in 1952.
• gave community a number of institutions, in particular a High Authority charged with the task of applying the treaty
• it had been endowed with supranational powers by the treaty
• also established were an assembly, a council of ministers, a court of justice
• this treaty was inspired by Robert Schuman and Jean Monnet and wishes of member states (in particular France and Germany)
• -> to do away with rivalries of coal and steel industries
• it was intended that placing these raw materials under common ownership would make it impossible for another world war to start in Europe
• signed 1951 by six founding member states of EC: Germany, Italy, France. Benelux (Belgium, Netherlands, Luxembourg)
• Significance: creation of supranational institutions, important first step in integration of Europe
• UK objected to supranational element with its implications for national sovereignty and refused to join.
• there were those who aspired to greater political union (attempt to create a European Defence Community with a common army, led to signing of European Defence Community Treaty 1952. Foundered of French objections. Plan was over ambitious and failed)

Euratom

• Spaak report: 1955 Messina/Italy
• published by intergovernmental committee chaired by Belgian Prime Minister Paul-Henri Spaak.
• set out a plan for two further communities: European Atomic Energy Community and EEC.
• Euratom was to place the development of nuclear energy for peaceful purposes under common control of the member states. 
• but establishment of EEC; setting up of common market among signatory states is of central importance
• run by a commission as their administrative body

Council of Europe

• established 1949
• entirely separate organisation from EC.
• international organisation based in Strasbourg
• aims to strengthen democracy, human rights, rule of law
• responsible for ECHR
• allows individuals from signatory countries who have exhausted domestic remedies to bring actions in the ECtHR
• Council of Europe and ECtHR are institutionally entirely separate from the institutions and Court of Justice of the EU
• but article 6(2) Lisbon Treaty of the European Union provides that the EU will accede to the ECHR
• this will happen in the future, but it's unclear when

The EEC/ established by the Treaty of Rome 1957

• built on economic objectives
• run by a commission
• creation of a common market seen as a way to rebuild european economies, make Europe economically independent of America 8at the time it was dependent on US aid through the Marshall plan)

Internal Market

• form of economic integration between participating states
• essential: removal of custom duties between member states
• end result of a developed common market
• common customs tariff which sets common customs duties for goods imported into the internal market from 3rd countries
• significance: without it, no free circulation of goods from 3rd countries
• in absence of common customs tariff, imported goods would always enter the common market into the country which imposed the lowest duty
• customs duties charged at the same rate wherever the goods enter the internal market

Four Freedoms Guaranteed by Treaty of Rome 1957

• free movement of goods
• free movement of persons
• free movement of services and freedom of establishment
• free movement of capital

Principle: there should be no discrimination between member states (Art 18 TFEU): no discrimination against goods or persons from other member states (original principle from the treaty of Rome didn't afford protection to persons/goods from 3rd countries)

• Competition Policy (Art. 101-109 TFEU) to ensure competition wasn't distorted
• protects consumer from cartels/monopolies inflating prices etc
• ensures that internal market isn't partitioned by companies deciding to share out national markets

further provisions: rules prohibiting state aids, establishment of Common Commercial Policy, Common Agricultural Policy, Common Transport Policy, Common Fisheries Policy. 

Citizenship

• citizenship of the union was added to the treaties as part of the hangs agreed at Maastricht
• initially unclear what this added to the existing concept of free movement but
• it was always in principle a dynamic set of entitlements which recognised that a union should involve all of the people

European Institutions and Treaties 

• Treaty of Rome followed model of ECSC:
• created an EEC and Euratom commission parallel to High Authority of the treaty
• other institutions had their powers extended to become institutions for all three communities
• aims and objectives of EEC set out in preamble to the Treaty of Rome and Art.2
• since 1957, scope of competence of EU has greatly increased by a series of treaties amending the original Treaty of Rome
• EU itself was established by Treaty on European Union (1993)
• competence now extends into ever increasing areas including many aspects of social policy
• few areas of life are now untouched by EU law 
• concerns of accountability/ lack of democratic accountability
• this was addressed primarily by increasing powers of the European Parliament

Subsequent Development of EU Treaties

1965 Merger Treaty

• the three communities initially had separate institutions which were amalgamated in the Merger Treaty
• High Authority of ECSC merged with Euratom and EEC commissions to form the present European Commission
• Council of the ECSC and Euratom were joined with the Council of Ministers of the EEC

The Luxembourg Accords

rating procedure: qualified majority vote and unanimity

• under treaty of Rome, it was intended that after transitional period, council would move from unanimous to qualified majority voting in many areas.
• but French, under deGaulle refused to give up veto
• compromise: Luxembourg Accords/ Compromise
• non-legally binding agreement
• where a matter was considered to concern important national interests, discussion would continue until agreement was reached
• France further stated that discussions should continue until unanimity had been achieved
• threat of a country using veto preserved, sometimes causing difficulty when member states faced matters of great importance to them
• led to period of stagnation in the 1970s and 1980s

1970 Budgetary Treaty and Own-Resources Decision

• changed basis of the Communities' financial resources (instead of national contributions)
• strengthened the role of Parliament in the budgetary process

1975 Second Budgetary Treaty

• further increases powers of Parliament in the budget
• gives Parliament control over non.compulsory spending
• under Lisbon Treaty, Parliament now has control over all spending
• also established Court of Auditors

1986 Single European Act

• first amendment to Treaty of Rome
• effectively a relaunch of the common market with emphasis on dismantling national trade barriers rather than harmonisation of laws
• to achieve this, Single European Act introduced qualified majority voting for measures to complete the single market in Art 100(a) (later Art.95 EC, now Art.114 TFEU)
• this broke the deadlock in the council, highly effective in getting the community going again
• introduced new legislative procedure-> cooperation procedure
• used for some areas of the treaty which greatly increased the Parliament's role
• where Parliament disagreed with a measure, unanimity required in the council to pass it
• this is now replaced by co-decision procedure except for provisions relating to economic and monetary union
• European parliament given veto over accession of new member states and conclusion of association agreement under assent procedure, voting by a majority of its component members
• began process of enlarging competence of the community by adding research and development, economic and social cohesion and environmental policy to Art.2 competences.
• prepared for introduction of the Court of First Instance (now called General Court of the EU and established in 1989

1992 Treaty on European Union (Maastricht Treaty)

• created EU with a three-pillar structure
• amended treaty of Rome, adding citizenship, subsidiary, economic and monetary union, new competences, new legislative procedure, co-decision

Establishment of the EU

3-pillar structure

1. union comprises EC, ECSC, Euratom
2. common foreign and security policy

• beginning of common foreign and defence policy
• intergovernmental framework

1. justice and home affairs (called police and judicial co-operation in criminal matters under Nice treaty)

• concerned with policy matters relating to movement of persons across borders (asylum, immigration, 3rd country nationals, control of international crime and co-operation by police and judicial authorities)
• substantially amended by Treaty of Amsterdam
• ->renamed, large sections dealing with visa, asylum, immigration, judicial cooperation in civil matters moved back into EC treaty
• new Title IV ex Arts 61-69 EC; concerned with establishing area of freedom, security, justice

-> Areas of inter-governmental cooperation between member states which were governed by different institutional arrangements than the EC pillar

Main Changes/Amendments to Treaty of Rome

• introduction of citizenship Art.17-22 EC (now Arts.20-25 TFEU)
• introduction of principle of subsidiary Art 5 TEU (ex Art.5 EC)-> decisions should be taken at lowest possible level, as close as possible to the individual
• economic and monetary union Title VII Economic and Monetary POlicy Art.98-124 EC (now Art.120-144 TFEU)
• introduced aim of establishing the above and introducing a common currency by Jan 1 1999
• countries wishing to participate had to meet convergence criteria (ratio total government debt: gross domestic product shouldn't exceed 60%)
• ration annual government deficit: GDP shouldn't exceed 3%

New Competences Added

• Art.2 to include: convergence of economic policies, social protection, economic and social cohesion
• Art.3 amended to include: environment, health, education and training, flowering of cultures of member states, developmental cooperation, consumer protection, energy, civil protection, tourism
• co-decision procedure: Art 251 EC. New legislative procedure introduced, effectively makes European Parliament co-legislator with the council
• gives Parliament veto over legislation

Enhanced Role of Parliament

• may request commission to initiate legislative proposal. Art.192 EC/ 138(b) EC
• set up temporary committees of inquiry. Art.193 EC/ 138(c) EC
• appoint an ombudsman; Art.195 EC /ex Art 138(e)
• commission made subject to vote of approval by Parliament; Art.214 EC/ ex Art.158 EC

Treaty of Amsterdam 1999

Amendments to Treaty of Rome

• new aims and objectives: Art.2: equality between men and women, sustainable development, high level of protection, improvement of environment
• environmental concern: Art.2 EC and new Art.6 EC
• co-decision procedure simplified
• expanded scope of application
• cooperation procedure replaced by co-decision in all areas except EMU
• new competence to combat discrimination: Art.13 EC
• gives council powers to take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion/belief, disability, age, sexual orientation
• social chapter protocol repealed
• its provisions incorporated into EC treaty after its ratification by UK labour government 1997
• Title XI Art 136-145 EC
• enhanced cooperation: Art.43 TEU, Art.40 TEU, Art.11 EC
• variable geometry: new institutional procedure
• groups of member states may act on initiatives together (within EU framework) to establish close cooperation
• groups of states can decide to integrate further 
• creating Europe of concentric circles
• Art.214 EC amended so approval of European Parliament is required for appointment of president of the Commission
• increased transparency, protection of liberty, democracy, human rights
• Art.1 TEU: decisions are to be taken as openly as possible
• Art.2 Teu: promoting a high level of employment
• aim of maintaining and developing union as area of freedom, security, justice
• Art.6 TEU: union is founded on principles of liberty, democracy, respect for human rights and fundamental freedoms and rule of law
• Art.7 TEU: serious and persistent breach of these principles leads to suspension of rights of the member state
• Art.6-2 TEU (Art. F) protection od human rights, made justiciable under Art.46 TEU (Art. L)
• Art.43 TEU: introduces variable geometry in intergovernmental second and third pillars

Treaty of Nice 2003

remained in force until ratification process of treaty of lisbon was completed.

Major Changes

• unanimous voting changed to qualified majority voting in 39 areas
• commission: provisions to change composition of commission adopted under protocol of enlargement
• when 10 new member states joined EU in May 2004, number of commissioners rose to 30
• but when new commission took office in November 2004, 5 largest member states (France, germany, Italy, Spain, Britain) lost their second commissioners
• new commission had 25 commissioners
• since accession of Romania and Bulgaria: 27
• new commission under presidency of Jose Manuel Barroso (until 2009, when new commission will be appointed)
• note: that's what the book says. Barroso is still president today, together with vice president baroness Ashton. They sit on the top floor on the commission building at Schuman in Brussels. It's a really big deal and no one working there ever sees them. Tight security. Alienation from the rest of the building. Definitely presidents of the people. Much unlike the Danish...:

Image from cyclestyle

• EC will have one commissioner per member state until it reaches 27 members. After that, rotational system will be introduced
• Art.214: nomination of president of the commission will be by council, meeting in composition of heads of state or government (instead of common accord of member states) and by qualified majority voting
• president's powers over organisation of commission are increased: 
• Art.217: commission president is to determine internal organisation of the commission so it acts consistently, efficiently, on basis of collective responsibility
• Art.217(4): A member of the commission has to resign if requested by president of the commission after obtaining collective approval of the commission
• european parliament Art.189 increases maximum number of MEP's to 732

European Parliament's Standing under Art.230 and 300

• Art.230: European Parliament is privileged applicant for bringing action for judicial review
• not restricted to actions to protect its prerogatives
• Art.300(6): European Parliament can obtain opinion of ECJ as to whether an agreement is compatible with provisions of the treaty

Council of the European Union

• until new allocation of votes in treaty of nice, smaller countries had proportionally more votes in relation to their population compared to larger states
• new weighting changes balance somewhat, but smaller states are still advantaged
• qualified majority voting may also require that qualified majority is of at least 62% of total population of the union
• increases importance of Germany relative to other large members
• Commission: Art.4(2): when the union consists of 27 members, Art.43(2) EC will be amended to say the number of members of the commission shall be less than the number of member states. 
• will be chosen according to implementing arrangements adopted by council, acting unanimously

Enhanced Cooperation

• procedure of setting up enhanced cooperation simplified
• clause a: general principles for enhanced cooperation (to be inserted into TEU), requirement for enhanced cooperation has been changed from requiring "at least a majority" of states (Art.43(1)(d) TEU) to "minimum of 8 states".
• no longer possible for 1 member state to veto closer cooperation by other states
• member state wanting to prevent enhanced cooperation going ahead can only request that the matter be referred to the EU council

Accession of Estonia, Lithuania, Latvia, Poland, Hungary, Czech Republic, Slovakia, Slovenia, Malta, Cyprus, May 2004

Accession of Bulgaria and Romania in January 2007

• Convention under former french President Valery Giscard d'Estaing to consider future of europe
• composed of 113 members from current member states and the then applicant countries
• representatives drawn from governments, national parliaments, EU Parliament and Commission
• result: draft treaty establishing a constitution for Europe
• adopted by all member states in 2004, ratification process commenced
• number of countries (incl. germany and Spain) ratified it in referenda and parliamentary route
• British Prime Minister announced that UK would hold a referendum
• before this could happen, draft treaty was rejected in France and Netherlands
• period of reflection
• 7 other members suspended ratification process
• treaty of nice remained in force
• european council looked for a compromise taking into account that 2/3 of members completed the ratification process, rest had reservations
• terms of compromise mainly technical, defined clearly
• differences of political opinion overcome
• European Council reached unanimous agreement in October 2007
• new treaty signed by all
• named Reform treaty/Lisbon Treaty
• intended to come into force 2009, but Ireland voted no in 2008

The Treaty of Lisbon 2007

• established on the basis of a comparison between Constitutional Treaty and existing treaties
• its nature and provisions made it possible to proceed to ratification without referendum
• Comparison to constitution: Lisbon treaty doesn't claim to be constitutional
• minister of foreign affairs-> high representative
• renaming of legislative acts scrapped
• supremacy of EU law no longer expressly contained
• legal service of the council: absence of the principle doesn't change existence of the principle or case law of Court of Justice
• mention of symbols of EU absent
• presented as treaty amending previous treaties, not replacement
• all references to EC removed
• three pillar structure removed

Preserves/Amends Nice Treaty on

• 2 1/2 year presidency of European Council
• High Representative to represent union in foreign affairs, will be vice president of the commission
• scope of qualified majority voting (mainly co-decision procedure):
• 15 articles changed from unanimous to qualified majority voting
• 24 new articles with qualified majority voting
• introduction of principle of conferral: union won't go beyond powers conferred by members
• scope of co-decision with european parliament
• distinctions between legislative and non-legislative acts
• solidarity clause
• improved governance of eurozone
• own resources, multi-annual financial framework of EU, budgetary procedure
• previous 3rd pillar matters: changes to voting system, right of veto

Provisions different from those Proposed in Constitution

• specific definition of member state and EU competences
• protocol with interactive provisions on services of general economic interest
• provisions enabling some members to proceed with measures on police/judicial cooperation while others don't participate
• extension of UK opt-out from 3rd pillar of 1997
• role for national parliaments in applying "passerelle" clause on former 3rd pillar matters relating to family law
• specific reference to energy supply solidarity between member states
• restriction on european space policy
• specific authorisation to EU to take action to combat climate change at international level
• retention of Art.308 EC/Art.352 TFEU but with provision stipulating that it may not apply to CFSP
• binding force to charter of Fundamental Rights via protocol and separate protocol providing possibility for opt-out to UK and POland
• role for national parliaments including subsidiary check
• EU acquiring legal personality, beginning negotiations for EU accession to ECHR
• amendment of EU accession conditions via addition of Copenhagen criteria. 

Sources& Reading

Horspool& Humphrey's EU Law  7th edition Chapter 1
The Treaties