Volledige samenvatting An Introduction to the EU Legal Order - Elise Muir (vak Internationaal en Europees recht) - eerste zit geslaagd 13/20

An Introduction to the
EU Legal Order
Elise Muir




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,CHAPTER 1: THE FOUNDATIONS OF EU LAW
The essential purpose of the EU: Art. 1 §2 TEU

 ‘An ever closer union among the peoples of Europe’
 Shaped to support a dynamic process of European integration
 Idea = a peaceful union without war

1. European integration: objectives, principles, and values
 Post-WW 2 traumas
 Initially and primarily articulated in economic terms
 A commitment to build a common future

2 founding principles

1) The equality of the Member states
o All the states of the EU must be treated equally
o No discrimination on ground of nationality between workers in the EU
o Combined with respect for their national identities
2) Sincere cooperation
o Acting in good faith towards the other states
o All the participating entities must play by the rules
o When the rules are not clear, then you must act in good faith
 Act in a way that is loyal to the organization

A set of values: art. 2 TEU

 In theory they are common – in practice they are not always followed (Poland, Hungary)
 Respect for human dignity, freedom, democracy, equality
 Respect for human rights
 How can we define the values in art. 2 TEU?
o Not defined in the article itself
o Each member state can have a different interpretations
o There is more information in other articles
 Art. 10 TEU: ‘democracy’
 Art. 6 TEU
 Principle = ‘mutual trust’ between the member states
o A presumption that the values will be recognized
o We must presume that the new states comply with the values
o The primary idea is that the member states can trust each other

2. A unique form of regional integration
 A particularly ambitious range of policy areas
 Very powerful tools




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,Forms of economic integration

 A free trade area = a group of countries that have agreed to mutually lower or eliminate trade
barriers for trade within the area
 A customs union = a group of states that have agreed to charge the same import duties to
territories from outside the contracting parties and usually to allow free trade between
themselves
 A common market = free movement of persons, services and capital
o You will be checked at the border, but won’t be held on
 An internal market = an area without internal frontiers in which the free movement of goods,
persons, services and capital is ensured
o You won’t be checked at the border

The EU: An ambitious integration process

 Much more than an economic integration
 A monetary policy with a single currency: the Euro
 No internal frontiers
 An area of freedom, security and justice
 A free trade area, a custom union, a common market and an internal market
 = very advanced form of economic integration (free movement of goods, services and capital),
EU is much more than just a form of economic integration
 It engages more with political objectives
o All the nationals of the member states are also EU citizens  It gives us political rights:
voting for European union
o It also has a common economic and monetary policy  the Euro
o It has created an area of freedom, security and justice: we try to establish minimum
standards to organize migration, combats against cross border crimes (terrorism, crime
against the environment,…)
o A common foreign and security policy
 Not easy to find a common voice to express what the EU wants
 Actua: war Palestine - Israel, how does the EU have to operate?

A Regional Project that interacts with others

 EFTA: European free trade association (Iceland, Liechtenstein, Norway and Switzerland)
o The EFTA states are not part of the EU!
o States have created a European free trade area
o They do not have a common currency,…
o Most EFTA states (exception of Switzerland) are part of the EEA
 Economic relations between the EU and the EFTA-states
 The states are part of the internal market
 Purchases in these countries: same way as the other countries of the EU
o Also part of the Schengen Area: no internal border controls
o Yet closer relations between EU – Norway



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,A powerful set of Tools for integration

 Tradition: intergovernmental method
o Reflecting the interests of each individual state
o Consensus of state representatives
o Representatives of the governments meet and make an agreement

 EU: supranational method
o The representation of other interests  the ‘common good’
o Independent institutions = they do not depend on an individual will of a member state,
they are meant to act for the general interest of the EU
o Law of the EU is automatically applicable and spread in the national legal system
 Principle of direct effect & primacy
 EU law always wins in a conflict with the national law
o Integration through law: the centrality of the Treaties on the European Union, in the
process of European integration

The EU institutions

1) The Parliament – art. 14 TEU
o The members are directly elected by EU citizens by universal suffrage
o Function: to be a co-legislator, co-decider when it comes to the EU budget

2) The European Council – art. 15 TEU
o Has a strong intergovernmental tone
o It consist of Heads of State or Government (leaders) + own president (Charles Michel)
+ Commission’s President (Ursula von der Leyen)
o In case of a big crisis: a meeting to discuss how to approach the problem

3) The Council – art. 16 TEU
o Composed of representatives of the member states at ministerial level
o (Co)-decides EU budget + co-legislator + policy-making & coordination

4) The commission – art. 17 TEU
o Independent members: meant to act in the general interest of the EU
o 1 per state
o 2 key functions: propose legislation + ensures application of EU law

5) The Court of justice of the European union – art. 19 TEU
o Independent members: judges
o Ensures that the EU-law is observed




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,3. Evolution
From the EEC to the European community (EC) within the European Union (EU)

 Several amendments that have pushed to more supranational and democratic tools
 A number of landmark stages in the process from the EEC to the EU
 Integration = treaty reforms + enlargements




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,Towards the TEEC

 W. Churchill
o Calling for a kind of United States for Europe: the aftermath of the WW 2
o Wanted to stimulate cooperation among European states
o ‘We need to develop together’

 The European Convention for the Protection of Human Rights and Fundamental Freedoms
(ECHR, 1950)
o The council of Europe in Strasbourg
o To promote the protection of fundamental rights and the rule of law democracy

 The Shuman declaration (1950, Paris): a common economic system
o Bringing the states together through economic integration
o Suggested starting with Cole and Steel
o Rebuilding the economies, building up mutual control and trust
o Step by step process

 The ECSC (1951, Paris) = The European Coal and Steel Community
o Creating free trade in one specific field: coal and steel
o To make sure that not one state is getting more powerful


The TEEC = Treaty of Rome

 The Treaty establishing the European Economic Community
 All trading good and services, persons, capital + more ambitious frame work
 EURATOM = Treaty establishing the European Atomic Energy Community

 By the end of the 1970 there are 3 communities (ECSC, EEC and Euratom)
o All the 3 communities rely on the same institutions
o The coal and steal community has become integrated in the EEC, but Euratom
continues to exist with a separate treaty frame work

 A bumpy start for the EEC
o De Gaulle (France) disagreed with the Council  he left = ‘Empty Chair Crisis’
o Solution for the crisis in the Luxembourg compromise
 Agreement that if one of the participating states would express serious concern
 the participating states agreed to not take a vote and to continue the
negotiations
 Bad news: slows down the EU-decision making process
o Side note: This crisis and compromise are very important to understand the tensions at
EU level. It illustrates the tension between the
need to ensure the efficiency of law making: so
to be able to make decisions even if not all
states agree. But there also exist mechanism in
the EU to allow in certain circumstances
specific interests to be expressed by the states.

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,  1970’s: amendments to the Treaty of Rome
o A system of own resources
 It will start to have its own budget
 Not anymore depending on the member states
 Increases their independence
o Elections for the Assembly
 The representatives are directly elected
 Direct universal suffrage
o The development of the meetings of the European Council
 They started meeting on a regular basis
 ‘Gatherings of the European Council’
o ‘Growing size’ of the institutions
o Court of justice’s key cases: the court develops a very ambitious case law

Parallel developments at European level  spill-over effect

 States start to trust each other more and more
 Increasing cooperation
 Three sets of development
1. The EEC became an important actor on the international stage
2. MS took steps towards the creation of an economic and monetary union
 EMU = a common currency
 EMS = a durable and effective scheme for a zone of monetary stability in
Europe
 ECU = European currency Unit (before the Euro)
3. Cooperation in the field of police, security, and justice also necessary
 If you have a common market where goods, services and people can move 
crime / drugs / weapons can also start moving  we have to cooperate better
in the field of security
 Action on migration control and asylum (asiel)

THE SEA = The Single European Act – 1986

 Focusses of the MS
o Strengthening and developing European political cooperation
o Continuing to progress towards a European Monetary Union
o More effort needed to improve the functioning of the common market
o A reflection on how to deal with the related budgetary implications

 2 main categories of changes
o A reform of the institutional framework of the EEC
 Greater efficiency in decision making
 Advancing the role of the European Parliament (changed its name)
 The parliament must be given more voice: members are directly elected
o A new EEC policy on cooperation in Economic and Monetary Policy


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,  Goal = to speed up the completion of the internal market
o The decision making became more important: had to go faster
o Change in voting system: QMV = Qualified Majority Voting
 Eliminated the Luxembourg compromise
 A special majority, but it’s still a majority, not unanimity
o The concept of an ‘area without internal frontiers’
 Cross-border movements of goods, persons, services and capital
 A new objective

 Matters not (fully) addressed by the SEA
o Cooperation on matters of police, security, justice, migration and asylum
o Community Charter of Fundamental Social Rights of Community Workers
o The question of the budgetary difficulties

The Treaty of Maastricht – 1992 (TEU + TEEC  TEC)

 Jacques Delore: the three-step approach
 Focusing on the ‘Political Union’  going beyond the single market and economic and
monetary union
o TEEC  TEC: not only focused on the economics anymore
o Also: outcome = the signature of the TEU

 The three-pillar structure: relied on a single institutional framework composed of different legal
regimes
o The 1st pillar = the community pillar: about EURATOM, Cole and Steel and EC
o The 2nd pillar = CFSP (common values, fundamental interests, independence)
o The 3rd pillar = JHA (asylum, border control, migration policy, judicial cooperation)
o All pillars together = the European Union
 1st pillar: supranational
 2nd and 3rd pillar: intergovernmental
o An attempt to bridge between the inter-governmental nature of several policies
developed outside of the EEC Treaty since the 1970s and (almost) supranational ones




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,  The main changes: pillar 1
o Change of name TEEC  TEC
o Increasing democratic legitimacy
 European citizenship for nationals of the MS (gives a right to vote, to move, …)
 A greater role for the Parliament in decision-making procedures
o Institutional effectiveness
 Growing importance of the European Council
 QMV
o The creation of new competences for the EEC
 Customer protection
 EMU

 Differentiated integration
o Principle : ‘we all do the same’
o In practice: ways of differentiation
o Soms rules make an exception for certain groups of states
o The more we want to do together, the more we need exceptions
o Eg. In the economic and monetary union
 Denmark = part of the EU but doesn’t want a common currency
o Eg. The protocol on social policy
 UK doesn't want to be bound

Treaty of Amsterdam – 1997

 An enlargement of the EU: 15 States
 Necessary institutional changes  institutional consequences: the ‘Ioannina compromise’
o The values, principles of Art. 2 TEU  sanctioning MS for breaches
o Again: the role of the Parliament increases
o Institutional changes
 It takes parts of the 3rd pillar into the 1st pillar: justice and home affairs used
to be in the 3rd pillar, but is now cooperated in standard community law
 Law-making becomes closer to the supernational method
o Enhanced cooperation: new mechanism
 Art. 20 TEU
 Allowing a group of MS to work more closely in certain areas, in particular as
a last resort solution, when it has been established within the Council that the
objectives pursued by these Member States cannot be attained by the EU as a
whole

Treaty of Nice – 2001

 Big increase of the states  27/28 MS
 No major changes, minor institutional changes
o Increasing the share on the EU-budget
o Planning EU-spendings over 7 years  gives stability
 Political crisis: the Santer Commission
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