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Essential Guide to European Constitutional Law: Understand the Foundations of EU Legislation
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All notes European Law
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Constitution EU foundations complete notes
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Week 1 – European integration and the institutionsWhy was the EU created?
To prevent for another world war. They learnt from international cooperation before, for example in the
interbellum. 9 May 1950 Schumann held a speech, known as the Schumann declaration. The EU started with
6 member-states and now had 27 member-states. In 2012 the EU has won the Nobel Peace Price. Since
peace was one of the most important things in the EU, it has been considered successful. The EU heavily
built on economic cooperation, because there was devastation after both of the world wars.
Supranational and intergovernmental institutions
Supranational institutions can overrule national governments. Intergovernmental is more cooperation
between governments. But this is often a mix, there can be a mixture of supranational and intergovernmental
structure.
The European Commission
The European commission is the watchdog of the treaties and was a high authority in the ECSC. Art. 14(1)
TEU states that the EP elects the president of the Commission. The president plays an important role in
shaping overall commission policy in negotiating with the council and the EP and in determining the future
direction of the EU. Art. 17. 3 TEU states that the members are completely independent. The competences
of the Commission are mentioned in art. 17 (1) (2) TEU:
Legislative power
o It has a right of legislative initiative. Most proposals will have to be proposed by the council
and the EP.
o It develops the overall legislative plan for any single year
o The commission also affects EU policy by developing general policy strategies
o Through capacity in certain limited areas to enact EU norms without the formal involvement
of any other EU institution.
o It exercised delegated power (art. 290 TFEU)
Administrative power
Executive power Possess responsibilities of an executive nature. Two are important:
o In the establishment of the EU’s budget
o Concerning external relations
Judicial power The commission posses two kinds of judicial power. The general foundation for
such power is art. 17 (1) TEU.
o It brings action against Member States when they are in breach of EU law
o It acts in certain areas as investigator and initial judge of a treaty violation, whether my
Member States or by private firms.
The EC is a more supranational institution based on art. 17 (3) TEU. The college of Commissioners operates
in four ways:
Important matters are dealt with through meetings of the college, that occur weekly.
The written procedure is used where deliberations in college do not seem to be necessary because all
point have been agreed by the relevant DGs and approval has been given by the legal service.
By empowerment, whereby the commission empowers an individual commissioner to make a
decision
The possibility of delegating decision-making to directors general and heads of service, who act on
behalf of the commission which is used for routine business.
The Council (of ministers)
This is the most powerful institution in the EU. This is because it exists of ministers of Member States. This
is mentioned in art. 16 (2) TEU. The ministers change per subject (art. 16 (6) TEU). The powers of the
council are merely provided by art. 16 (1) TEU:
, The council has to vote its approval of virtually all commission legislative initiatives before they
become law.
It has to become more proactive in the legislative process through the use of art. 241 TFEU
The council can delegate power to the commission
Collaboration between the Commission, the EP and the council
The council and the EP play a major role to the EU’s budget
It concludes agreements on behalf of the EU with third states or international organizations.
It has powers in relation to the common foreign and security policy.
The Council is a blend of both supranational and intergovernmental.
The European Council
The European Council is the head of governments and states. Its composition is mentioned in art. 15 (2)
TEU and the competences are mentioned in art. 15 (1) TEU.
The European parliament
Composition (art. 14 (2) TEU) directly chosen. The competences of the EP are mentioned in art. 14 (1)
TEU:
Legislative power the EP exercises jointly with the council, legislative and budgetary functions.
There are certain areas where the assent of the EP is required for legislation. The EP has a veto
power over delegated acts.
Dismissal and appointment power The EP always had the power to censure the Commission and
require its resignation. Since the Maastricht treaty, the EP also has the right to participate in the
Commission appointments.
Supervisory power: The EP monitors the activities of the other institutions, principally the
Commission. They do this by:
1. Asking questions
2. The establishment of committees of inquiry. (art 226 -227 TFEU)
3. The Maastricht treaty also provided for the appointment by the EP of an Ombudsman. (art 228
TFEU)
This ombudsman is to receive complaints from Union citizens or resident third-country
nationals or legal persons, concerning instances of maladministration in the activities of
Union institutions, bodies, offices or agencies as well as to conduct inquiries for which he
finds grounds either on his own initiative or on the basis of complaints submitted to him
direct or through a member of the EP. (art 228 (1) TFEU) He is appointed for the duration
of the EP (art 228 (2) TFEU)
EU courts are excluded from his jurisdiction
He cannot undertake an own-initiative inquiry in relation to facts that are subject to legal
proceedings
Only for EU institutions (not national institutions)
The EU bodies should supply information and give access to files. The ombudsman sends a
report to the EP and to the institution under investigation and the complainant is informed of
the outcome.
, Week 2 – The validity of EU legislation
Competence to act
The EU can act when it is written down in the treaty. The Member States decide what’s written down in the
treaties, so they give certain competences to the EU. This is referred to as the principle of
conferral/attributed powers. This is a limitation on the powers of the EU. The EU is allowed to act when it
doesn’t infringe the principles of subsidiarity and proportionality. This is mentioned in art. 5(2) and 1(1)
TFEU. There are three types of competence:
1. Exclusive competence only the Union can legislate and adopt legally binding acts. The Member
States can only do so if empowered by the Union or for the implementation of Union acts. The
limited subject matter areas that fall within exclusive competence are set out in art. 3(1) TFEU.
2. Shared competence the competence will be shared between the EU and the Member States. Art.
2(2) TFEU. This competence exists when it does not relate to the categories referred to in art. 3 and 6
TFEU.
Art. 2(2) TFEU stipulates that the MS can exercise competence only to the extent that the union has
not exercised or has decided to cease to exercise its competence within any such area. This is called
the principle of pre-emption. This principle must be qualified in four ways:
1. MS will lose their competence within the regime of shared power only to the extent that the
Union has exercised its competence
2. Pre-emption will occur only to the extent that the EU has exercised its competence in the
relevant areas
3. Art. 2(2) TFEU expressly provides for the possibility that the EU will cease to exercise
competence in an area subject to shared competence, the consequence being that the
competence then reverts to the Members.
4. Art. 4 (3-4) TFEU stipulates that the essence of both treaty provisions is to make clear that
the MS can continue to exercise power even if the EU has exercised its competence within
these areas.
3. Supportive, coordinating or supplementary competence The EU cannot harmonize the law in
these areas. It can pass legally binding acts on the basis of the provisions specific to them. Areas that
fall within such competence are set out in art. 6 TFEU. Member states have the obligation to
coordinate their policies in such matters, in liaison with the Commission, which can coordinate
actions by exchanges of best practice, periodic monitoring (soft law) or pass laws to establish legal
incentive measures for the protection of human health. These must be designed to achieve to
objectives for the EU in that specific area. Harmonization is ruled out.
Art. 2 (5) TFEU entails that EU action does not supersede Member State competences and legally
binding acts can be adopted but cannot entail harmonization. Three points flow from this provision:
1. Where the EU passes such legal acts, they will bind the members and the competence of the
members will be constrained to the extent stipulated by the legally binding act.
2. Very meaning of harmonization is not clear. These acts cannot find their legal basis on art.
114 TFEU.
3. It should not be assumed that the consequences for the Members of enactment of legally
binding act in their areas will necessarily be less fair-reaching than harmonization.
Principles of subsidiarity and proportionality
The principle of subsidiarity means that you should act at the level that is best suited for a certain measure.
You only do something at EU-level, when this is the best level to regulate something. If it can also be done
at a local level, you do not need EU-legislation. This is also mentioned in art. 5 (3) TEU. The Lisbon treaty
contains a protocol on the Application of Principles of Subsidiarity and Proportionality. This applies only to
draft legislative acts, so not to delegated or implementing acts.
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