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Summary Governance, Law & Policy of the EU
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Recent summary of the course “Governance, Law & Policy of the EU” at the VUB.
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2. What are the EU’s legal foundations or “primary law”?2.1 The key components of today’s primary law of the EU
Primary law = Basic Treaties/international agreements signed and ratified by all (27) Member States
of the EU. They are the legal foundations upon which the EU construction is built.
2 categories of primary law
Treaties Accession Treaties
- Provide the EU with competences/powers - Allow countries to
in a specific policy domain join the EU
- Provide the EU with an institutional
framework to handle these competences
Institutional framework = instruments/tools to give shape to the competences/powers
2 basic Treaties that are the basis of the EU and are legally binding:
1) Treaty of the EU (TEU) = first basic Treaty; basic principles dealing with the EU institution & the
institutional provisions
2) Treaty of the Functioning of the EU (TFEU) = Second basic Treaty; dealing with the functioning
of the EU and deals with all the details of various
policy areas (internal market, fisheries, …) and
describes what the EU is supposed to do.
Protocols Legally binding and has the same status as the treaties but deals with more
specific subjects
Declarations Not legally binding; are political statements by the Member States; They guide
how Member States would like to interpret certain Treaty articles
Provisions on Possibility for a smaller group of Member States to go ahead in certain areas of
enhanced the integration process
cooperation
Final provisions Include how we change the Treaties and how a country can become a Member
State or how to withdrawal from the EU
Charter of Also signed and ratified by the Member States & is a binding legal document
Fundamental and part of the primary law
Rights of the EU
!! The Charter is binding on the Member States in so far they are implementing
EU law; only binding when implementing EU law; not legally binding when
implementing domestic legislation which has no link to EU law
Contradiction? The Member of States signed and ratified the Treaties and handed over to the
EU certain competences/powers. By signing and ratifying these Treaties, they
conferral upon the EU a number of a limited competences/specific powers it’s
in those areas that the EU has the power to act.
Consolidated Gives you the law as it’s stands today with all the changes that has been made
versions over the years
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,2.2 The principle of conferral (or the Member States as the “Masters of the Treaties”) –
Article 5(1) and (2) TEU
Art. 5: The limits of Union competences are governed by the principle of conferral. The Union shall
act only within the limits of competences conferred upon it by the Member States
Principle of conferral = The EU is an Union of its Member States & they have conferred its
competences (=powers) to the EU. Competences that are not conferred upon
the Union in the Treaties remain with the Member States.
→ This means that they have not the right to deal with all matters that fall
outside the agreements of the Treaties, and that the EU can only act
within the conferred competences defined by the Member States in the
Treaties.
German Federal Constitutional Court says that the Member States remain the Master of the Treaties
→ Kompetenz-Kompetenz = The EU has not the competence to decide over its own competence,
the EU is dependent on the Member States to receive powers.
2.3 The Treaties as the EU’s Constitutional Charter
The Treaty establishing a constitution for Europe went never into force because in France and the
Netherlands were negative referenda. Still, even when the Treaty was rejected, the Court says that
we have a primary law of the EU and those founding Treaties must be considered as a Constitutional
Charter of the EU.
2.3.1 The European Union between International Organization and (con)federation
Can we compare the EU to an International organization?
There are some characteristics that the EU is sharing with international organizations:
1) Based on a Treaty that is signed and ratified by Member States
2) The topics on which the EU may deal is authorized to work on (principle of conferral)
3) International Organizations has a number of institutions and organs, together they make
policy. This policy expresses the will of the organizations that is detached from the Member
States.
The EU is detached by its Member States, in the interpretation of the Court Of Justice. The EU
has created a new legal order that’s autonomous from the Member States legal order and
public international law. This autonomous legal order is characterized by key principles of EU
law such as the primacy of EU law over national law; Eu law prevails national law.
A direct effect: as EU citizen, you can directly rely on EU law before a national court creating
direct relationship between EU law and citizenship.
Is the EU a state in the making?
No, it lacks the key characteristics of a State according to international law:
1) with respect, to the element of having competences with a government that can handle those
competences
2) its ability to conclude treaties with third countries with third countries
→ the EU is developing a legal personality of its own and has some characteristics of a State,
but in other aspects (territory, population) the EU is in legal terms derived by Member States.
The EU is a federation based on states, but itself is not a state with its proper legal order.
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,2.4 The Treaties establishing an autonomous legal order
The Treaties as the EU’s Constitutional Charter establishing that the new legal order that is based on
the Treaties. That new legal order is also underpinned by the primacy of EU law over the national law
of the Member States.
Member States shall not take the law in their own hands, that’s why we have an European Court of
Justice.
But, challenge by the German Federal Constitutional Court:
- Kompetenz-Kompetenz
- National authorities must ensure that EU stays within its attributed competences
- The GFCC has jurisdiction to determine whether the EU is acting beyond its competences
→ The Court of Justice is the maximum authority in the interpretation of EU law, it is the supreme
interpreter of what is correct EU law.
2.5 The primacy of EU law order over national law of the Member States
Primacy of EU law = legal principle establishing the precedence of EU law over conflicting national
laws of Member States.
It is based on the idea that where a conflict arises between an aspect of EU law
and an aspect of a national law, EU law will prevail.
The Court stated: The unity of EU law would be completely lost if we would allow that EU law is made,
and then individual Member States would be able to adopt national legislation that contradicts the EU
law, and then that national legislation would apply contradicting EU law.
Even the structure of a country, even its constitutional system (Belgium, Flemish government), cannot
justify failure to abide by EU law. The European Commission can only bring a case against a Member
State; not against the Flemish region. The Commission is the guardian of the Treaties.
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, 3. Which policy areas is the EU dealing with? The categories and areas of
EU competences
There are 3 categories of competences:
1) Exclusive competences
2) Shared competences
3) Supporting competences
3.1 Exclusive competences – Articles 2(1) and 3 TFEU
Exclusive competence = only the Union may legislate and adopt legally binding acts
The EU has exclusive competences in the following areas:
- Customs Union
- Common Commercial policy
- Establishing of the competition rules necessary for the functioning of the internal market
- Monetary policy for the Member States whose currency is the euro
- Conversation of marine biological resources under the common fisheries policy
Customs Union – Articles 28 and 31 TFEU (for the Common Customs Tariff - CCT)
EU is a Customs Union, a free movement of goods between Member States (douane-unie) with 2
components:
1) Internal component: In trade between Member States, there are no charges
Prohibition between Member States of customs duties/charges on
imports and exports (internal market)
2) External component: EU is surrounded by a ‘EU’s Common Custom Tariff’.
Individual Member States has lost the power to fix their own customs
duties on products coming in from third countries. (China, Peru,
Pakistan, Canada, US…)
➔ When a product is imported by a third country to the EU, this product will be charged a
customs duty and will correspond to what is mentioned in the EU’s Common Customs
Tariff-list.
The difference between a customs union and a free trade area:
A Free Trade Area has in common with a Customs Union the internal component. Both the Members
of a Customs Union and a Free Trade Area, they strive to abolish trade barriers between the Members.
The Custom Union has a common Custom Tariff and the Free Trade Area not. (=EFTA, European Free
Trade Association: Norway, Finland, Iceland, Liechtenstein and Switzerland)
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