Summary Lecture notes European Union Law

Notes European Union Law

Lecture 1 – European Union Law

Why an EU law course in a GLB Law Program?
- Historical
o The EU is a successful example of ‘’integration through law’’
 Use law (especially interaction national and supranational courts) to
deal with transboundary problems
 Challenge the state paradigm that individual rights depend mainly on
nationality
- Conceptual
o Key questions in common between the functioning of Global Law the
functioning of EU law
 Conflicts of jurisdiction: can we do without an authority that has the
final say?
 Institutional design: can representative democracy work beyond the
nation state model?
 Relation between Law/Politics/Society/Market: which goals should
regulation pursue? What is ‘’good’’ regulation?
- Practical
o Nowadays, EU law sets standards of regulation which are applicable beyond
EU
 Example: Council Directive 2001/51/EC (Carriers Liability Directive)
 Formality: the addressee of this legal act are EU Member States
 Content: MS are obliged to impose sanctions on carriers transporting
foreigners (TCNs) into their territory, when TCNs do not satisfy the
entry conditions established by EU Law for crossing EU External
borders.
 Sanction: not less than 3000 for each passenger carried +
assuming the costs of the stay and return
o Carriers? KLM, Emirates etc.
 Effects?
 Private companies perform tasks usually reserved to
immigration officers (outside the territory of the EU)
 Doubtful cases? Boarding is refused!

What is the European Union?
- The EU is an International Organization (IO) (like WWO, UN)
- Created by a Treaty (International Law)
- To achieve certain goals
- Equipped with the necessary design (powers, institutions) to achieve those goals;
- The EU has a regional nature
- But it is not the only IO in the European Region (Council of Europe)

,Relation EU and CoE
- CoE  is another IO with a regional nature
- ECHR (1950)  International Treaty, catalogue of rights
- ECtHR (compulsory supranational court)

What is the relation with the ECHR?
- European Convention on Human Rights is NOT EU LAW!!
o Future Accession, see art 6(2) TEU
o Fundamental Rights as guaranteed in the ECHR and in MS constitutional
systems are general principles of EU Law.
o Interpretation CFR: not lowering standards of protection ECHR, see art 53
CFR

What is the current structure of the EU? (2009)
- The EU is based on… the Lisbon Treaty (2 treaties – same legal value)
o TEU: general provisions
 Democratic principles. EU principles, Institutions, Enhanced
cooperation, External action
o TFEU: specific provisions
 Rules on EU competences, functioning of: institutions, policies,
decision making
o Charter of Fundamental Right (CFR)
 Separate, but same value (see art. 6(1) TEU)
 Belongs to EU primary law

Catalogue of rights in the EU?
- Charter of Fundamental Rights (CFR)
o Created in 2000  it became hard law with the Lisbon Treaty
- Before?
o Already individual rights in CJEU’s Case Law
- In between?
o CFR used as soft law (interpretative tool)
- Scope of application
o The CFR applies only when EU law is applicable (for instance, when MS
implement EU law)

The ‘EU’ project: how we got here?
- Origins and drivers of EU integration.
- The two faces of nationalism
o 19th century
 Unification Nation States (Germany – Italy)
 NATIONALISM
 (push towards unification; prior boundaries… too small!)
th
o 20 century
 National Conflicts on a world scale: WWI and WWII
 Goal: long-lasting peace
 Strategy: supranational

,  1945: UN  International level
 1950: ECHR  Supranational Regional Level
- Origins and drivers of EU integration
o 1951 European Coal and Steel Community (ECSC)
 6 MS (DE-FR-IT-BE-NL-LU)
 Supranational management of strategic resources
o 1950-4 Euroean Defence Community (EDC)
European Political Community (EPC)
 Common foreign policy/European legislative body (Federation)
 FAILED!!!
o 1957 European Economic Community (EEC) – Treaty of Rome
 European Atomic Energy Community (Euratom)
 6 MS (DE-FR-IT-BE-NL-LU)

European Economic Community (EEC)
- Goal?
o Gradual creation of common market
- How?
o Common Custom Tariff
o Gradual Removal of Internal Barriers to Trade (No tariffs, no quotas)
o Circulation of Economic factors (4 freedoms: goods, workers, capitals,
services)
- Why?
o Neofunctionalism:
 Common Market > Interconnectedness >
 Spill-over effect > Gradual Integration >
 Political integration
- Examples of spillover effect: to achieve a common market…
o Strategies
 Key provisions limiting national aid to domestic industries
 Key provisions limiting protective/discriminatory national regulation
 Key provision on anti-competitive actions (by privates)
 Approximation of policies
 Common policies

The ‘EU’ project
- European integration in 3 words:
o Enlargement
 Admission of new MS: art. 49 TEU (check eligibility criteria)
 Withdrawal MS: art. 50 TEU
 Expulsion?
 No! But suspension is possible: Art 7 TEU (link with art 2 TEU)
o Deepening
 SEA (1986)
 Common market > single market
 Negative integration (no obstacles) > positive integration
(harmonization) currently art 114 TFEU

,  New policies: research and development, environment
 Maastricht (1992):
 Union Citizenship/subsidiarity
 New policies: Consumer protection, Public health, Monetary
Union
 3 Pillars Structure: Community + CFSP + JHA (Intergovern.,
limited scrutiny ECJ)
 Amsterdam (1997):
 Reference to Fundamental Rights, Rule of Law, openness, Area
Freedom Security and Justice (AFSJ)
 ‘Communitarization’ of Asylum and Immigration policies
o Legitimacy (EU as representative democracy)
 TEU: articles 9-12 ‘democratic principles’
 Article 10
 What is distinctive about legitimacy in the ‘EU’?
 The EU is the creature of MS, founded on international
legislation (treaties) like I.O.s
 Its functioning is based on representative democracy
 Accountable to individuals (directly and indirectly) like a State


Art 50 TEU
- Initiative
o 1. Any MS may decide to withdraw from the Union in accordance with its
own constitutional requirements.
- Relations EU and leaving MS
o 2. A MS which decides to withdraw shall notify the European Council of its
intention.
 Can a MS withdraw the notification to withdraw? (no answer in the
treaties)
 See C-621/18, 10 Dec 2018
 Yes, unilateral withdrawal of the withdrawal
- In the light of the guidelines provided by the European Council the Union shall
negotiate and conclude an agreement with that State, setting out the arrangements
for its withdrawal, taking account of the framework for its future relationship with
the Union. That agreement shall be negotiated in accordance with Article 218(3) of
the Treaty on the Functioning of the European Union. It shall be concluded on behalf
of the Union by the Council, acting by a qualified majority, after obtaining the
consent of the European Parliament.
o Only the Union can negotiate on behalf of remaining MS..
- When ‘’leave’’ becomes effective?
o 3. The Treaties shall cease to apply to the State in question from the date of
entry into force of the withdrawal agreement OR, failing that, two years after
the notification referred to in paragraph 2, (…)
o Only deal or no deal?
 (…) unless the European Council, in agreement with the Member
State concerned, unanimously decides to extend this period.