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Summary Constitutional Foundations of the EU
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- University Of Sussex (UoS)
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CONSTITUTIONAL FOUNDATIONS OF THE EUTHE LEGAL EVOLUTION
The EU has particular characteristics which make it quite different from most international
organisations – which mostly work on the basis of member states retaining most of the
power, this is known as intergovernmental organisation. The EU though, is an organisation
where member states have agreed to give up and transfer many of their competences to
the EU, on a supra national governmental level. The treaties are the basis of the EU so it is
important to become familiar with them, they are the primary legislation for the EU. The
treaties are negotiated by and entered into by the member states. The member states are
known as the masters of the treaties. There are other secondary sources of legislation i.e.
directives and regulations and also jurisprudence case law of the ECJ. You will need to eb
familiar with both primary and secondary legislation.
Treaty milestones
If the treaties are the primary legislation of the EU, we must look as the transition of treaties
and the milestone treaties.
Treaty of Rome 1957 (founding treaty, Now TFEU) – founded the EEC (EU), which is now a
historical name, it is now known as the EU but at the time it was based on economic aspects
so that’s why it was called such. It intended to bring countries together after ww2 in
economic ventures.
Few decades without any further treaties. Member states went on to collaborate without
another treaty.
Single European Act 1986 (amending treaty) which relaunched the single market – by the
80’s member states noticed they weren’t where they wanted to be in terms of economic
integration. So, the single European act 1986 was introduced, aiming to speed up market
integration and finalise a few aspects of market integration.
Treaty of Maastricht 1992 (founding treaty, Now TEU) – added quite a few competences to
the EU, symbolised the move from mere economic integration project to political and
social integration project. Picked what already existed (the EEC) and renamed it the
European community (EU) and considered this only one of the three pillars of the EU. (THE
TREATY OF MAASTRICHT ESTABLISHED THE THREE PILLAR SYSTEM) this reflected a greater
degree of integration, the desire to go beyond mere economic integration.
- The Eu’s three pillar system
The first pillar was the pillar which reflected the greatest degree of integration, we can call
this first pillar the supra-national pillar, because it requires a greater degree of offering to
the European institutions competences and powers to carry out policies. The court also had
a greater say on these matters and us citizens of member states had greater rights in those
matters (social and political matters, supra-national decision making-review by the courts,
,individual rights etc.). this pillar was the European communities pillar and the most
important pillar.
The second pillar and third pillar were pillars increasingly irrelevant in terms of European
integration. member states wanted to proceed with caution, they did give the EU
competences in those fields, but maintained sovereignty over them by making sure the
people had a greater say in them. These pillars are less reviewable. The second pillar was
common foreign and security policy and the third cooperation in justice and home affairs.
The ECJ could not review matters falling under these pillars to the extent they could those
under the first pillar. This is part of the history of the EU.
Treaty of Amsterdam 1997 (amending treaty)
Different from the 2 treaties above in the sense that the treaties of Rome and Maastricht
were founding treaties. The treaty of Amsterdam instead amended existing treaties. This
treaty intended to amend existing treaties, the pillar structure remained but the treaty of
Amsterdam moved some of the pillar 3 matters such as justice and home affairs to pillar one
which meant that those matters were treated at a supra national perspective and giving
member states more of a say and sovereignty over these matters. This treaty is also seen as
an important social development, it introduced competence to legislate in the field of
discrimination law and norms important for human rights. Article 6 and 7 in particular of
TFEU impose human rights obligations and sanctions on member states. This was to a
great extent the work of the treaty of Amsterdam. It also renumbered the treaty
provisions.
The treaty of Nice 2000 (amending treaty)
Another amending treaty. Main aim was to deal with issues member states had not agreed
upon in the amendment of the treaty of Amsterdam. One of these things was the
institutional setup of the EU, there were 8 member states looking to join in 2004, so it was
important to look into how it would work with larger numbers of member states. It limited
the number of commissioners to one commissioner per member state in the European
commission. Introduced more instances of qualified majority voting rather than requiring
unanimity . together with this treaty came the solemn declaration or proclamation of the
charter of fundamental rights, which was a human rights instrument that not only contained
all human rights already existing under ECHR but also a range of other rights. It offered a
broader and up to date human rights instrument. It did not become legally binding in this
treaty but it did later in 2007 with the treaty of Lisbon. The treaty of nice was signed and
rectified, but member states weren’t happy with the outcome, it wasn’t done to the extent
needed, so there was need for further debate of the shape of the EU.
The constitutional convention 2004 (amending treaty)
After the treaty of nice, the constitutional convention was created, which reflected what a
constitution of the EU should look like. There were many different opinions, there was also a
need to revisit the institutional shape as some decision-making processes weren’t as
effective as desired. some opposed any sort of constitutional discussion because
constitutionalism was sometimes associated with federal states, which was undesired by
some and they argued that the EU should be in no way a federation of any sort but an
international organisation. The convention managed to draft an EU constitution drafted in
,2004, had to be agreed by all member states but was not ratified by all member states – this
is where the French and the dutch were against the constitution. So, after the French and
dutch referendums were rejected, the draft EU constitution needed a reflection process and
understand that maybe a push for constitutionalism was not yet right
Treaty of Lisbon 2007 (amending treaty)
This treaty put an end to this pillar system. Recognised that the three pillars come under
the broader remit of EU competences and so there is no strict separation anymore. The
treaties still have different rules for different policies i.e. voting requirements and decision-
making procedures, but not as blatant as it used to be. This treaty tried to pick up from
where the constitutional debate left off and tried to save as much as possible from the
constitution that had been rejected. Still a need for changes to the setup and decision-
making. This treaty was rejected by Ireland in 2009. After the irish government were
reassured and offered guarantees that the Lisbon treaty didn’t intend to interfere with
domestic affairs, the Lisbon treaty was ratified in Ireland . the constitutional symbolic
elements were left out and most of the substance of the draft constitution was included in
the Lisbon treaty. The treaty also brought about the legally binding effect of the charter of
human rights. This became a worrying issue when the Lisbon treaty was being ratified by
member states, some were uneasy about the effect of the charter of human rights on
domestic affects. They negotiated protocols which they thought would be an opt out but
wasn’t really as the charter does still apply domestically. The Lisbon had the important
effect of introducing the legally binding effect of the human rights charter and was the last
treaty ratified by member states so this brings us up to the current position of the EU.
Amending treaties do not stand by themselves, they only work on the basis of amendment,
so the amendments can be found in the revised versions of the treaty of Rome and
Maastricht. The treaty of Maastricht is what we now call the TEU or the TFEU (TFEU is a lot
more detailed and the TEU has broader issues) so Maastricht treaty no longer referred to as
such.
MADE CHARTER BINDING UNDER LISBON TREATY. The charter of human rights can be
considered the third key element of the primary legislation of the EU after the current
versions of the treaties, the TFEU and TEU. These 3 key tools of the current legal framework
need to be looked at throughout the study of this module. So, to clarify, TEU, TFEU and the
charter of fundamental human rights need to be familiarised. The EU is a legal construct, it
is NOT a state.
EU OBJECTIVES, COMPETENCES OF EU AND INSTITUTIONS
Recap – the Eu’s treaty base today consists of 3 main legal framework elements, the TEU
(formerly treaty of Maastricht), TFEU (formerly treaty pf Rome), and the charter of
, fundamental rights, introduced as a solemn declaration, but became legally binding through
the treaty of Lisbon
Values of the EU : art 2 TEU
The EU exists with intention of achieving certain aims, but in everything it does it needs to
respect a number of values, which are clearly stated within the treaties. Art 2 TEU, respect,
democracy, rule of law, human rights are named values. These values do entail some legally
binding effect because the member states have signed up to these values upon entry to EU,
but also because there are sanctions which can be placed on member states which do not
comply with these values. Art 7 lists the sanctions. Art 3 of TEU provides the aims of the EU,
to promote peace and value of members etc, but art 3 proceeds to specify other objectives
that the EU is to pursue, para 2 establishes freedom, security and justice, asylum, free
movement of people etc. para 3 defines the main objective which is the internal market,
including the free movement of services, capital and goods, as well as people. Para 4
mentions economic and monetary union and para 5 specifies the need for the EU to
promote its values in the external (wider world). Insert relevant slide. These objectives are
fairly broad and are more detailed within chapters of the treaties. Art 3 para 6 TEU includes
a very important provision which says the union must pursue the objectives by
appropriate means specified within the treaties, so the EU can only act where action is
specifically permitted within the treaties.
Competence catalogue : no competence = no power to act
Competence catalogue – TFEU
Art 3 sets out the broad objectives of the EU, arts 3-6 of TFEU you can find the catalogue of
competence, art 3 includes exclusive competences (only the EU has these competences, not
member states). Some exclusive competences include competition rules and the customs
union rules and common commercial policy (the position of the EU as a single organisation
when relating to non EU member states). These exclusive competences make sure individual
members cannot alter them.
Art 4 refers to shared competences, the bulk of competences that are transferred by
member states to the EU. Social policy, agriculture, transport and energy. Both the EU and
member states can act in these policies. if the EU doesn’t act, then member states can act,
but if the EU does act, member states will need to make sure that what they do doesn’t
conflict with what the EU does. The principle of subsidiarity is very important to help solve
any conflict between EU and member states.
Art 6 – supporting actions or coordinating competences, these are EU active competences
but to a much smaller degree than exclusive and shared competences, coordinating
competences are things like health, culture and education , where member states retain
most of their sovereignty. They only pass on to the EU supporting or coordinating roles.
Member states are free to the greater extent in these fields, but the EU can take the
initiative to support what member states do in these fields. This is a new catalogue of
competences introduced by the Lisbon treaty in 2007, and so has only been in place for the
last decade or so. It has reduced the scope for conflicts between member states and the EU,
but disagreements may still arise about how shared competences should be exercised.
TEU
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