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LAW013: LAW OF THE EUROPEAN UNION I (LAW013) - Lecture Notes
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Full lecture notes for EU1 (LAW013) - Semester 1. Contains cases, judicial opinions and academic commentary.
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EU 1 – EU Constitutional andAdministrative Law
Lecture Set 1 – Thomas Horsley
Lecture 1
- Constitutional development of EU legal order
- Union institutions and EU legislative procedures
- Democratic credentials of EU law-making
o And EU integration more broadly
- What is the EU and how has it developed?
- What are the key institutions of the Union?
- What procedures govern Union law-making?
- To what extent is Union law-making sufficiently democratic?
Origin and development
- Based on international treaties
o Treaty of Rome 1957 – established EEC
o Single European Act 1986
o Treaty of Maastricht 1992 – rebranding the EEC and establishing the EU
o Treaty of Amsterdam 1997
o Treaty of Nice 2001
o Treaty of Lisbon 2007 – current framework in force from Dec 2009
Establish European integration on basis of Treaty on European Union
(TEU)
Amended the Maastricht Treaty
Established Treaty on the Functioning of the European Union
Amended original Treaty of Rome
Integration over time
- Treaties have broadened and deepened objectives of EU integration over time
o Originally focussed on market integration, now more emphasis on economic
and political union
Seen in comparison between aims of Treaty of Rome Article 2 and
Treaty on European union Art 3
Establishing common market, bringing economies and policies
closer together
Promoting peace, citizens have area of freedom, security and
justice where there is free movement, combat social exclusion
and discrimination, establishing the euro, respect of cultural
and linguistical diversity, contribution to the sustainable
, development of the earth, free and fair trade, eradication of
poverty and protection of human rights
- Why pursue integration beyond the state?
o Historically, post-WW2 exposed excesses of industrialised nation states
e.g. arms races, saw destruction of nation states on an international
scale
Needed to save the nation state, establish in a framework
where they wouldn’t be so self-destructive
o Millward, The European Rescue of the National State
(1994)
‘the European nation state rescued itself from
collapse [and] created a new political consensus
as the basis of its legitimacy’
o Contemporary rationale
Response to collective action problems that transcend the
boundaries of nation states
e.g. climate change, market and company regulation
Cosmopolitan theory
State is not our only identity
Sense of citizenship that moves beyond the member states
- How to integrate beyond the state
o Supranationalism
Aka ‘the community method’
Neo-functionalism
Downplays globalisation and reintroduces territory into its
government
Early neofunctionalism assumed a decline in the importance of
nationalism and the nation-state
o Gradually elected officials, elected officials, interest
groups and large commercial interests within states
would see it in their best interests to pursue welfarist
objectives best satisfied by integration at a higher,
supranational level
Haas – three mechanisms to drive integration
forward
Positive spill over effect – integration
between states in an economic sector
will create strong incentive for
integration in other sectors
Increased number of transactions –
consequential increasing regional
integration; leads to creation of
institutions who work without reference
to “local” government
Transfer in domestic allegiances – as
the process of integration gathers pace,
interest groups and associations will
, transfer their allegiances away from
national institutions towards
supranational European institutions
Greater regulatory complexity –
Technocratic automaticity – as
integration proceeds, the supranational
institutions set up to see the integration
process will take the lead in sponsoring
further integration as they become
more powerful and autonomous of the
member states
o Relies on size of unit, rate of
transaction, pluralism, and elite
complementarity
Political integration will then become
an inevitable side effect of integration
in economic sectors
Integration through states transferring power (competences) to
institutions beyond the state with consent to be bound by their
decisions
Atypical in international law
Embedded in EU integration project from inception
e.g. common market (Treaty of Rome)
o Intergovernmentalism
aka the PIL method
states retain competences, integration through common agreement
and joint (state controlled) decision-making
dominant approach in public international law (PIL)
emerged the European integration in the 80s/90s
see Maastricht Treaty establishing the EU
Why?
Balancing further integration with state sovereignty
o Maintains control
Often critically received as fragmenting/regressive
o e.g. Curtin 1993
- Dynamic relationships
o Between supranationalism and intergovernmentalism in EU integration
Transfer of policy areas from intergovernmental to supranational
method is a defining feature of EU integration post Maastricht
e.g. Treaty of Amsterdam
o Moving immigration, asylum and civil judicial
cooperation as union policy areas from
intergovernmental to supranational method
Lecture 2
, A European Constitution
- Treaty proposal that died (2004) “Constitution for Europe”
- Attempt to reform the treaties before Lisbon but failed
o Abandoned after negative referenda in Netherlands and France (2005)
Treaties (article 48 TBU) sets out process of amending treaties
Member states must agree the treaty and then be ratified by
all the member states in accordance with their individual
constitutional requirements (e.g. referendum)
- Purpose
o Attempt to establish EU integration on a new footing
Moving beyond (but not abandoning) the ‘supranationalism v
intergovernmental’ dynamic
- Contents
o Established European integration under a single treaty – tidier
Abolished all of the previous treaties that had been amended
o Transferred more competencies into union institutions
Had powers to bind member states regardless of agreement of the
state
o New legally binding Charter of Fundamental Rights
Previously aspirational in Treaty of Nice
e.g. freedoms of expression etc
o Democratic enhancements
Bring in citizens much more to the EU law-making processes
Bring in national parliaments – very democratic, strong mandates
- Controversial?
o Step too far too quickly?
Contained lots of constitutional language, concepts and ideas
Emotive, symbolic aspirations
United States of Europe?!
Article 1-8 Constitution (would have been)
Provisions giving the EU flag (previously not in writing)
EU anthem – Ode to Joy (previously informal
Motto – ‘United in Diversity’
Europe day – celebrated on the 9th May and should be
celebrated
o Many legal provisions have carried over into the Lisbon treaty anyway
Without constitutional trappings
- Current settlement – Treaty of Lisbon
o Basis of integration as it stands
o TEU and TFEU
o Symbolic content of Constitution is really the only difference between the
Constitution and the Lisbon Treaty but are NOT the same thing
o Democratised decision making
New role for national parliaments
Bringing citizens closer to the law-making
o Difference in implementation to Constitution
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