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the legal dimension of Europeweek 1 p. 1-24
EEC, EC or EU
- The European Economic Community is created by the treaty of Rome. 1957
- The EEC become known as the European Community following the enactment of the treaty
on European union or Maastricht treaty. 1993
- The EC becomes known as the European Union following the enactment of changes
introduced by the treaty of Lisbon.
The European communities
1. The council of Europe: an intergovernmental organization which adopted the European
convention on human rights (ECHR) and established the European court of human rights. The
council of Europe fell short of what many felt was needed in order to stabilize inter-state
relationships.
2. The European coal and steel community: involved the integration of the French and German
coal and steel industries. This allowed the industries to be closely monitored. The idea was
meant to provide security in other countries as well. Six countries entered, the Netherlands,
Germany, France, Italy, Belgium and Luxembourg and the ECSC was created in 1957. Ensuring
the longer-term aims of peace and European unity was the focus.
3. Failed moves towards European defence and political communities: further attempts at
integration between the member states were made, with plans being drawn up for a
European defence community and European political community, involving the creation of a
European army and common foreign policy. Agreement could not be reached however.
4. The European atomic energy community (EURATOM): this treaty was signed in Rome in
1957. The object was the furtherance of atomic energy for peaceful purposes, together with
a commitment to uniform safety standards.
5. The European economic community: the EEC treaty was also signed in Rome. Both ECSC and
EURATOM were limited in their scope. The EEC was broader in its approach, it was created
with the task of working towards integration of all aspects of the economies.
The development of the European economic community
1. The merger treaty 1965: the first amendment to the treaties of Paris and Rome. its purpose
was to merge the institutions of all three communities, creating a common council of
ministers and a common commission.
2. The Luxembourg accords 1966: unanimous voting could be used where very important
matters were at stake.
3. The single European act 1986: the first substantial revision of the original EEC treaty. A date
for the single market was set. This took the EEC to an area with complete totality of
economic activity. Political co-operation between states on foreign policy and security
matters. Areas of EEC competence extended. European parliament given greater legislative
powers. QMV becomes the norm when council vote. European council placed on a formal
footing. Court of first instant to assist European court of justice.
4. The treaty on European union, 1992, the Maastricht treaty: sustain momentum created by
the SEA and the creation of a new organization to be known as the European union. EEC
renamed EC. Aims of the EC broadened, particularly in regard to EMU. EP’s powers increased
by new legislative procedures. European ombudsman created to investigate
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, maladministration. European union created: three pillar system. Pillar I, made of the ECSC,
EURATOM and the European community. Pillar II: the development of policies relating to
foreign and security matters. Pillar III: relating to co-operation on justice and home affairs.
5. Treaty of Amsterdam 1997: to improve processes, increase effectiveness and bring the EU
closer to the ordinary person by making it more comprehensible. Placing workers and
citizens’ rights at the heart of the union. Removing remaining barriers to free movement.
Preparing for enlargement. New numbering of EC treaty articles. Authority to create
legislation aimed at prohibiting discrimination. Greater use of the co-decision legislative
procedure allowing EP more power. Pillar III to renamed police and judicial co-operation in
criminal matters.
6. Treaty of nice: enlargement of the European Union. Extension of qualified majority voting in
council. Re-weighting of votes in council. Increased use of co-decision legislative procedure.
Amendments to composition of the institutions. Redistribution of jurisdiction between ECJ
and CFI. EP placed on an equal footing with other institutions regarding judicial review.
7. Constitution of Europe: created in 2003, agreed on by all member states, however, Dutch
and French nationals voted against the constitution which made the unanimous vote go
away.
8. The treaty of Lisbon 2009: change of the name EC treaty changed to treaty on the
functioning of the EU. (TFEU). European court of justice changed to court of justice of the
European union. Re-numbering of articles. EU institutions increased from 5 to 7. Three pillar
structure changed into a single framework. Union values refined. A number of TFEU
provisions recognized as having general application. Measures introduced intended to
demonstrate EU commitment to democracy. Shared roles and powers of EU and member
states clarified. EU given legal personality. Changed to legislative procedures. State
parliament given increased role. New provisions relating to membership of, and withdrawal
from EU. Change to actions to annul. Charter of fundamental rights given legal authority.
Week 2 page 69-85
The EU enjoys legal personality (ART 47 TEU) and art 216 TFEU confirms that the union may enter
into agreements with third countries of international organizations which may be binding on the
institutions and on the member states.
the doctrines of direct effect and supremacy
there are a number of questions that must be answered before an understanding of Union law and
its impact can be fully gained. First, it is necessary to consider which law will take precedence should
there be a conflict between EU law and national law. Second, it is necessary to consider the effect of
EU law in the MS.
The original position
The member states originally assumed that EEC law would have the same domestic effects as other
sources of national law. This resulted in in the status of the EEC treaty being determined by each MS
own constitutional rules. In dualist states, international law is only binding on individuals if it has
been adopted by the national authorities and made part of domestic law. It was therefore considered
that the EEC treaty would bind the state but not provide rights to individuals.
in monist states, international law automatically forms part of the national legal system. The status
and impact of EEC law varied from state to state.
The CJEU took a different approach to the question of impact of union law and developed two
principles: direct effect and supremacy.
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,The doctrine of supremacy of union law
MS have two legal systems, EU law and national law. It needs to be considered which source of law
should be applied in cases of conflict between these two sources.
The creation of doctrine supremacy
Van Gen den Loos (Case 26/62): explained that union law constitutes a new legal order for benefit of
which the states have limited their sovereign rights, albeit within limited fields. (The court’s
judgement resulted in Union law being chosen over national law) It is clear from the court’s dicta that
it was recognized that to allow member states to apply conflicting national rather than union law
would severely undermine the ability of the EU to achieve its aims. The doctrine of supremacy of
Union law was established.
The development of the doctrine
The implications of the doctrine of supremacy were not fully addressed until case 6/64 Costa v. ENEL.
The court confirmed that where national law and EU law conflict, EU law must take precedence, even
where the national law has been enacted subsequent to EU law.
the doctrine of supremacy of union law
when national law and EU law conflict, which should be applied? : EU law will always be supreme and
should always take precedence over conflicting sources of law: costa v. ENEL
does the doctrine of implied repeal apply between EU and national law? : no, EU level takes
precedence even where national law was enacted after. Costa v. ENEL
is EU law supreme over all sources of national law? Yes. EU law is supreme over all sources of
national law, even constitutional principles. IHG
which courts have jurisdiction to set aside conflicting national law? : the national court hearing the
action must immediately give effect to the EU. Simmenthal.
The doctrine of direct effect of EU law
The creation of the doctrine
The CEJEU provided a ground-breaking judgement in the van Gend en Loos case. Van Gend imported
goods from Germany into the Netherlands and was required by Dutch law to pay customs duty on
the goods. The importers challenged legality of the duty, claiming infringement of art. 30 TFEU.
In order to arrive its decision, the court of justice drew heavily on its purposive method of the
interpretation, relying not only on the wording of the treaty, but also on the spirit and the aims of
the Union. The court declared that the union constituted a new legal order of international law,
which conferred both rights and obligations on individuals, as well as on the participating MS,
without the need of implementing legislation. The court further concluded that national courts must
protect such rights. The court provided that EU law had direct effect, which can be seen as two-
pronged concept under which:
- EU law provided individuals as well as MS, with rights and obligations
- Such rights and obligations are enforceable by national courts
Principle of direct effect
Effects:
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, - Increases effectiveness of EU law
- Provides uniformity of EU law in all member states
- Supports integration
The conditions of direct effect
The court explained in van Gend that not all treaty articles would be capable of direct effect. There
are a set of criteria created to see if a case is involved with direct effect:
- Clear and precise: both parties must be clear as what their respective rights/obligations are.
A provision must therefore be sufficiently clear and precise before being capable of direct
effect. This does not mean that the whole provision must comply.
- Unconditional: a provision will not be unconditional if the rights it provides is in some way
dependent on the judgment or discretion of an independent body unless that discretion is
subject to judicial control.
- Not subject to any further implementing measures on the part of either the Union or national
authority: this would appear to have been subject to a liberal application by the court, as can
be demonstrated in case 2/74, Reymers. In this case, it had been anticipated that secondary
legislation would have to be enacted before the objectives contained in Art 52 EEC (now art
49 TFEU) would provide rights to individuals. However, the court declared the provision to be
directly effective, explaining that to do otherwise could result in individuals being denied
their EU law rights.
Direct effect of different sources of Union law
- Direct effect and treaty articles: the question of whether the principle of direct effect applies
to treaty articles was considered in the judgment of van Gend and it is now well accepted
that all articles are capable of direct affect, providing that they comply with the criteria. In
addition, the court has provide that rights and obligations obtained in treaty articles may be
enforced both against the state and public bodies (vertical direct effect) and against private
bodies and individuals (horizontal direct effect)
- Direct effect and regulations: article 288 TFEU would appear to give regulations direct effect.
The article states that a regulation shall be binding in its entirety and directly applicable in all
MS. While all regulations are directly applicable, the regulations would only be directly
effective when they fulfil the van Gend criteria. Regulations may be enforced both vertically
and horizontally.
- Direct effect and decisions: decisions are directly applicable, but art 288 TFEU provides that
they can be binding on those to whom they are addressed.
- Direct effect of international agreements: this is a controversial and complex area. It is
sufficient to conclude that the court has ruled that international agreements may have direct
affect.
- Direct effect and directives: art. 288 TFEU provides that a directive shall be 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. Directives are therefore not directly
applicable. Directives do not appear to provide rights to individuals until they have been
incorporated – and then through national incorporating legislation, rather than through the
directive itself. They do place obligations on MS. However, directives can be directly
applicable if it is vertical direct effect (against the state).
Developing the effectiveness of directives
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