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Class notes Foundations of EU Law
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Foundations of EU Law
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EU LawTopic 1: Foundations of EU Law
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In this presentation, we will provide a short introduction to the EU and its
constitutional system – highlighting the features which (according to the European
Court of Justice) make the EU not just an unusual, but indeed unique, form of inter-
state cooperation and collaboration.
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EU lawyers often describe the European Union as a sui generis entity: it has a unique
constitutional nature and structure, different from that to be found in any other legal
system, either under national or under international law.
That view is certainly endorsed by the Court of Justice – which is the EU’s main
judicial body (often referred to as the European Court of Justice or ECJ; or as the
Court of Justice of the European Union or CJEU – we will use those titles and
acronyms interchangeably throughout the module).
According to the ECJ, in cases such as Opinion 2/13 on the Draft Agreement on EU
Accession to the ECHR: the EU constitutes a new legal order, based on a unique
constitutional framework, the nature of which is peculiar to the EU.
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So what it is that is peculiar about the EU legal order?
To begin with – and contrary to the claims often made by populist politicians – the
EU is clearly not a State (federal or otherwise) for the purposes of international law.
Far from it: each Member State of the EU remains a sovereign State for the purposes
of international law. While the EU itself not only lacks statehood in the formal, legal
sense – but also many of the traditional attributes of statehood in the more informal,
political sense. The EU has no government as such. It has no armed forces, police or
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,security service of its own. It has no welfare system, no education system, no
healthcare system, and only limited powers in relation to taxation as well as a strictly
limited budgetary capacity.
In fact, many of the EU’s main activities are regulatory in nature: adopting rules that
will be applied across the Member States; coordinating national action and domestic
responses to particular policy problems.
And (again contrary to many populist political claims) the EU is a relatively tiny
organisation. The Commission – which is by far the largest of the EU institutions in
terms of personnel – employs around 32,000 people (a significant proportion of whom
are engaged in the necessary and important job of language translation). The
European Parliament has a permanent staff of about 7500 and the Council has a
permanent staff of around 3500.
So, altogether, the EU is about the same size as the local councils of Merseyside or
Greater Manchester.
Ultimately, the EU is an international organisation – created by and dependent upon
its Member States, and possessing only those powers conferred upon it through the
founding Treaties.
And yet the EU is undoubtedly an international organisation of a very unusual kind
and of a very far-reaching nature.
Compared with the vast majority of other international organisations, the Member
States have entrusted the EU with far-reaching powers and responsibilities. Even
though other parts of the world are also engaged in constructing their own systems of
regional cooperation, often inspired by or even modelled on the EU experience – from
South America to Africa and South East Asia – none of those regional organisations
has yet approached the scope and depth of inter-state collaboration we see in Europe.
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,So – what the key features of the EU constitutional system that make it so special?
Those features are regularly summarised by the ECJ in its caselaw and we’ll spend the
rest of this presentation offering a short summary.
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To begin with:
The EU possesses its own legal system, which is autonomous from both
international law and the legal systems of its Member States.
EU law has its own legal sources and structures; its own concepts and tools of
interpretation; its own courts and its own caselaw.
Of course – the EU legal system is intimately linked to the legal systems of each
of its Member States. Indeed, and as we’ll explore further in this module, the EU
is entirely dependent upon the national legal systems in order to translate its
policies and decisions into concrete, enforceable action.
But the EU is capable of producing its own identifiable body of law, possessed of
its own distinct legal principles and rules.
For those purposes, the founding Treaties provide the EU with its basic
constitutional charter and act as the foundation for its independent source of law.
In particular, two Treaties provide the cornerstone of the EU’s existence and
activities: the Treaty on European Union; and the Treaty on the Functioning of the
European Union. We’ll make regular reference to various provisions from the TEU
and the TFEU throughout this module.
One of the core preoccupations of the TEU and the TFEU is to establish and
regulate the EU’s own institutions and bodies. In fact: compared to the great
majority of other international organisations, the EU is endowed (provided) with a
particularly sophisticated (complicated) institutional structure, including its own
set of institutions – such as the European Council, the Council, the European
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, Parliament and the Commission. Those institutions operate within a detailed
rules-based framework laid down in the Treaties. And they are endowed with real
decision making powers – capable of adopting legislation and taking other types
of administrative decision, across a wide range of policy fields and activities.
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Describing the policy fields and activities in which the EU institutions are capable of
exercising their own legislative and decision-making powers is another key
preoccupation of the EU’s founding treaties.
As the Court of Justice puts it: the EU and its institutions fulfil the objectives
entrusted to them under the Treaties, (by reference) through a series of fundamental
provisions found in the TEU and the TFEU.
Each of those provisions has a specific field of application and its own particular
constitutional and legal characteristics – often describing in great detail what the EU
institutions can and cannot do, the process by which they should act, the exceptions
and derogations that remain available or applicable to the Member States if they wish
to depart from an agreed European-wide policy or decision.
E.g. the single largest collection of EU policies make up the Internal Market – a
uniquely advanced system of economic cooperation between the Member States
that seeks to remove barriers to cross-border trade and encourage free as well as
fair competition between their companies and businesses.
Another important collection of Treaty provisions make up the Area of Freedom,
Security and Justice – a cluster of policies covering issues such as border checks
between the member states, immigration and asylum; as well as cross-border
cooperation by police and other law enforcement services in the fight against
crime and terrorism.
But the EU also has powers and responsibilities in other important fields – for
example, establishing minimum standards of employment protection for workers
across the Member States; and similarly, establishing minimum standards of
environmental protection (from pollution to climate change) across the Member
States.
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