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College aantekeningen Inleiding EU recht
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All courses in the second part of the course Introduction to International/EU Law. For the first part, see my lecture notes Introduction to International Law
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Hoorcollege 1 Inleiding EU Recht14-4-2020
Voorbereiden:
• Robert Schütze, An Introduction to European Law (2nd edn. Cambridge University Press
2015) Chapters 1, 5 & 6
Aantekeningen:
The foundations of European Union Law
Our mission for today:
• Nature of EU Legal Order: Intergovernmental, supranational or autonomous? For that
purpose, we focus on:
• History, ‘Precedence’, ‘direct effect’ and ‘competences’
Development of Primary Law:
• 1951: European Coal and Steel Community (ECSC) – first organization with supranational
elements, with ‘High Authority’ and Court. Can bind Member States ‘against their will’ (why?
supplements for war)
• 1957: European Economic Community (EEC) and the European Atomic Energy Community
(Euratom) – similar to ECSC internal market and some common policies (such as
agriculture) (efficiency vrij verkeer van mensen en goederen)
2 first commodities that they decide to do collectively
Development of Primary Law
• 1986: Single European Act (QMV about internal market, new common policies)
• 1992: Maastricht Treaty, Establishment of the European Union with three pillars (EC,
Common Foreign Security Policy, and Justice and Home Affairs), Monetary Union
• 1997: Treaty of Amsterdam
• 2002: Treaty of Nice
• 2004: Failed Constitutional Treaty
• 2007: Lisbon Treaty
those are all amendments of the first 2 commodities (constantly changes)
goal: gradually grow closer to each other (after the world wars), it brought lots of benefits
and economic prosperity
why does it need to change? There are more and more countries in the European Union
so its harder to take decisions, so they need to adopt new rules about decision making. But
there are also new realities, e.g. environmental issues, terrorists, so they need new powers
to deal with new realities
dates aren’t important
Current state of affairs: Treaties
• Treaty on the Functioning of the European Union (TFEU) (previously the EC Treaty): free
movement of goods (import and export) without having to pay duties or having to comply with
additional rules (internal market)
• Treaty on European Union (TEU) (previously the Maastricht Treaty): outside of the sphere
of the internal market, e.g. principles, values on which the EU is founded, constitutional
• Euratom
• These are ‘framework treaties’, and hence are further specified by secondary legislation
(directions, regulations), which exist in every conceivable area you don’t want to change
,the treaty every time something new comes along, you need to come up with language that
is flexible and can accommodate change consequence: interpretation of the treaty leaves
much more freedom for a court
EU has his own legislator, which can make its own laws, but can bind our states and can
give rights and obligations to us directly, as individuals (it works directly, don’t have to
transpose, ratify them in national law)
in case of a clash (‘precedence of EU law’) between national laws and EU law, EU law
always wins
Treaty structure after Lisbon:
EU is the totality of:
- a core: TEU (treaty European Union): with its values, aspires democracy, freedom of
speech etc.
- TFEU: mostly deals with policies (internal market policy, environment policy, labor policy)
- outer layer, the whole EU is encapsulated by: Charter of fundamental human rights
The EU is a sui generis autonomous legal order:
1. Transfer of competences: countries give all their powers in the state of trait to the EU,
states gave some of their sovereignty to the EU forever, until you get out of the EU, you can
never negotiate about an international agreement, it will always go via the commission
2. Legal Personality: the EU can do what we do, they can buy property, they are responsible
for their actions, etc.
3. Independent Institutions: they will look at what is good for the EU, not for a country
4. Unique decision-making procedures: if there is a majority, than the minority will get
outvoted, also when it’s a big nation
5. Unique sources: EU can adopt regulations, if the EU makes a regulation, all the countries
are immediately bound by it
6. Compulsory jurisdiction of the CJEU: you can’t say you only want parts of the jurisdiction,
it’s all or nothing
7. Unique methods of interpretation: it doesn’t stick to the text of the treaty
8. Unique position of individuals: you have rights by virtue of the EU legislator, not only your
national legislator
what is unique and powerful about EU law
The EU and ‘The rule of law’ (= governed by law)
• Different relations:
> EU – Member states
> Member states – Member states
> EU – citizens
> EU – EU
• These relations are governed by primary law, secondary law and case law of the CJEU
,More specifically this means that:
• The exercise of all powers is subject to the law (legality principle, art. 5)
• Constitutional rights and other fundamental freedoms are respected including access to an
independent court
Institutions of the EU:
EU legislation:
- European Parliament: directly elected (you can vote for it)
- Council of Ministers: indirectly elected
Commission:
- 28 indepen members
- Watchdog: supervision of member states
- they’re independent, the dutch commissioner isn’t there for the dutch interest, but
for the interest of the EU
- almost monopoly in proposing legislation (they set the agenda) (they decide if a
law should be proposed, what should be proposed, etc.)
- states don’t usually take each other to court but the commission does it all the
time
Court of Justice: it interprets and implies the law (independent)
European Council:
- not independent (our prime ministers, Rutte, Merkel, etc.)
- if there comes a new treaty, they want to do something really big, move course, than they
come. The European Council determines the long term really important dossiers (e.g. Brexit).
They give the direction
Institutions: art. 13 TEU
- The commission:
• 28 independent members (one for each Member State)
• Engine of Integration: Right of Initiative (art. 17(2) TEU)
• Agenda-setter: annual legislative plan
• Executive: e.g. finances and external relations
• Watchdog: supervision of Member States (they watch them and send them to court if
necessary)
The Council of Ministers
• One specialized minister per MS, Art. 16(2): pursues national interest!
• Rotating president, apart from foreign affairs (
, • Legislative: legislates with the European Parliament, and shares powers with the EP on
budget making
• Executes foreign policy
• Decisive role in CFSP (Common Foreign Security Policy) (violent things)
you have many of them, you have a council for every subject, for example banking
The European Council:
• Exercises political leadership
• Heads of State and Government and president of the Commission
• Permanent President since Lisbon
• Crucial role in cases when Treaty is to be changed
The European Parliament:
• 750 representatives of EU citizens, political grouping
• Legislature: together with Council of Ministers (‘ordinary legislative procedure’). Drafts
budget, also together with the Council of Ministers
• Democratic control of all EU activities
• Can seize (go to) the Court of Justice to complain about breaches of the law!
The European Court:
• ECJ (and AGs), the General Court
• ‘Ensures respect in the interpretation and application of EU Law’, art. 19(1)
• Judgements collegial (you only get one judgment, not one judge thinks this, another thinks
something else)
Other important institutions:
• High Representative for Foreign Affairs
• European Central Bank
• Court of Auditors (make sure that the finances are okay and check for corruption, etc.)
• Ombudsman (independently checks the performance of public bodies)
• Agencies
• EcoSoc
• Committee of the Regions
Secondary EU Law: Art. 288 TFEU
• Regulation: has general application, binds in its entirety and is directly applicable in all
Member States immediately working in every state (doesn’t have to be transposed in
national law)
• Directive: binding, as to the result to be achieved, upon each Member State to which it is
addressed, but shall leave to the national authorities the choice of form and methods the
states have to transpose it in their national law
• Decision: binding in its entirety. A decision which specifies those to whom it is addressed
shall be binding only on them (same as a directive, but it doesn’t address a member state,
but an individual)
• Recommendations, opinions: have no binding forces (soft law)
The EU and the Member States:
• Member States are ‘Guardians of the Treaty’
• Participate in decision-making (in fact: they are crucial)
- Brussels!
• Implementation, application and enforcement (art. 291(1) TFEU)
- ‘Life-blood of European Law’
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