Governance, Law, and Policy of the European Union (4018131FNR)
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Summary Governance Law and Policy of the European Union Theory Lectures ('21 - '22)
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Governance, Law, and Policy of the European Union (4018131FNR)
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Vrije Universiteit Brussel (VUB)
Comprehensive summary of the lectures for the course Governance Law and Policy of the European Union. Suitable for students International Business. Given by Youri Devuyst at the Vrije Universiteit Brussel in the academic year .
Governance, Law, and Policy of the European Union (4018131FNR)
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Summary:
Theory lectures Governance, Law, and Policy of
the European Union
PROFESSOR: YOURI DEVUYST
Gino Aytas | 1MA IB | Academic year 2021 – 2022
Version 1
,Practical information:
Possible exam questions are distributed during the first lecture for which students have an
entire semester to prepare. The exam will be an oral exam where the students has 1 hours
to prepare a paper that answers the broad question given.
1. Lecture 1 | 28-09-2021
The primary law of the European Union (EU) is the foundational law on which the entire
construction rests. It takes the form of treaties signed and ratified by all the member
states (27) of the EU. In 1951 there was the signing of the treaty that established the
European Coal and Steel community. Over the decades more treaties were enacted
between the member states, that added to this primary law construction of the EU. The
founding treaty (of Maastricht) of the EU was signed in 1992.
These treaties can be quite challenging to read, as they amend and replace each other. All
treaties build upon each other. To make it a bit easier the EU put together all treaties
currently in force as one. This can be considered a coherent package. These treaties that
can be read and form the current primary law of the EU are what we call consolidated
versions. At the moment we have a couple of these in force:
• Treaty on European Union (2016)
• Treaty on the Functioning of the European Union (2016)
These 2 treaties are the basis of the current EU and dictate its primary law. The treaty
regarding the functioning of the EU is much bigger and goes into detail about a lot of
aspects. It also goes over all the different policy area’s the EU is involved in, such as the
free movement of goods, transport and education.
In addition to these 2 treaties there are also a number of protocols annexed to them.
Protocols are legally binding and have exactly the same status as the treaties themselves.
Protocols exist separate from treaties for a technical reason, because they go into great
detail into some matters. An example of such a protocol would be on the stature of the
European Central Bank (ECB).
We also have declarations, which are not legally binding. They are political statements by
the member states and give a political interpretations as to how the member states would
like to read certain treaty articles. You could see them as guidelines for specific articles for
member states. Some declarations are by all member states, some are for (a) specific
member state(s).
Lastly we also have the Charter of Fundamental Rights of the European Union alongside
the 2 treaties. This Charter is legally binding, specifically to the member states when they
are explicitly implementing EU law. When the member states are simply adopting purely
domestic legislation this charter does not apply.
PAGE 1
,Now we are going to briefly touch upon the several elements that we’ll go over in more
detail throughout this course. Looking at the academic literature, legal and political
practice there are 3 ways of understanding the EU.
A first way is to look at the EU as an international organization underpinned by public
international law. There is a second viewpoint which sees the EU as having developed an
autonomous legal, political and economic order based on its own constitutional charter
(fundamental treaties previously seen). A third and final perspective is to see our EU as an
embryonic confederal state. Which was the line of thought in the early days of the EU
when they thought of creating ‘the United States of Europe’.
A. THE EUROPEAN UNION AS AN INTERNATIONAL ORGANIZATION
An international organization has 3 aspects that stand out. First of all, international
organizations are created by treaties between states, which is called a constituent
instrument of an international organization.
The EU is fully in line with this as we have previously seen in the consolidated treaties. If
we look at Article 54 of the Consolidated version of the treaty on European Union for
example it states the following:
“This Treaty shall be ratified by the High Contracting Parties in accordance with their
respective constitutional requirements. The instruments of ratification shall be deposited
with the Government of the Italian Republic.”
The government of the Italian Republic plays a central role as the one who collects all the
original treaties of the EU and ratifications by member states. Changing these treaties
requires a unanimous agreement by the governments of these member states and the
ratification by all the member states in accordance with their constitutional requirements.
This all makes it quite difficult to adapt anything of these fundamental treaties. The
German federal constitutional court states that the member states remain very much the
masters of the treaties.
A second aspect of an international organization is that it has its own organs and
institutions and trough their functioning achieving a certain degree of autonomy.
Looking at this criterium for the EU we see that they exceed the standard. The European
Commission is a striking example of this, which is able to function completely
independent as stated in the treaty. Allowing it to promote the general interest of the
union.
Another example of this is the ordinary legislative procedure which consists out of the
adoption of binding legislation on proposal of Commission, by both the European
Parliament and the council of ministers. Here they usually work with qualified majority
voting, where they are able to adopt decisions even if there are several member states
against it.
EU law prevails national law. It often also has direct effect, which allows us as citizens to
rely on it in front of a national court. There is also an effective enforcement system for this
EU law, as the Commission under the control of the Court of Justice of the EU oversees
PAGE 2
, this. The EU also has a legal personality, allowing it to enter into international agreements
with countries or organizations.
This is all not that rare, we see it occurring in other instances as well. What is much more
rare is that with the EU we have an entire system which has gone well beyond a certain
degree of detachment. The entire order of the EU is autonomous.
The final aspect of an international organization is that they are governed by the principle
of specialty, meaning that they have certain specific powers and competences which are
limited by the states that have created them.
This is again true for the EU as stated in the division of competences between the EU and
the member states. Article 5 of the Consolidated version of the treaty on European Union
explains this further:
“The limits of Union competences are governed by the principle of conferral. The use of
Union competences is governed by the principles of subsidiarity and proportionality.”
“Under the principle of conferral, the Union shall act only within the limits of the
competences conferred upon it by the Member States in the Treaties to attain the objectives
set out therein. Competences not conferred upon the Union in the Treaties remain with the
Member States.”
An important remark regarding this is that the EU does not have the competence to
decide on its own competence. The EU legal order is a derived legal order that the
member states stay master of.
B. THE EUROPEAN UNION AS AN AUTONOMOUS LEGAL ORDER, BASED ON
ITS OWN CONSTITUTIONAL CHARTER
This autonomy terminology was already found in the very early days of the European Coal
and Steel community. Robert Schuman who was the French minister of foreign affairs at
the time initiated this community and was already thinking of a supranational level of
power with limited autonomy. Today this same kind of reasoning is promoted in the
caselaw of the Court of Justice of the EU (CJEU).
We will have a closer look at the opinion of the CJEU on the EU’s accession to the
European convention on human rights (ECHR). As of today the EU is still not a member
of the ECHR as a consequence of this opinion.
The court says that the founding treaties of the EU are unlike ordinary international
treaties and should not be considered as such. These founding treaties have established a
new legal order possessing its own institutions, for which the member states have limited
their own sovereign rights. Which affects both the states and their nationals.
The CJEU also clarified that this new kind of legal order has a nature which is peculiar to
the EU. It can’t be compared to other international organizations. This new legal order is
characterized by the autonomy enjoyed by EU law in relation to the laws of the member
states and international law. In order to ensure this autonomy the treaties have
established a judicial system intended to ensure consistency and uniformity in the
interpretation of EU law. It is for the CJEU alone to decide if whether or not an act of an
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