Constitutional Principles of EC/EU Law, Institutional Reforms of the Union/Summary lecture Part I

6. October 2008, 6. lecture EU Law I: Institutional Law of the EU

Overview – lecture 6

• Constitutional Principles depending on which players involved

- EC and Member States- Among EC institutions

- EC law and citizens• The Constitutional Treaty, the Reform

Treaty and differences to EC/EU Treaty• Summary Part I

Legal sources of the constitutional future• EC/EU Treaty (last changes by Treaty of

Nice and Accession Treaties)• Constitutional Treaty: 2004

http://eur-lex.europa.eu/JOHtml.do?uri=OJ:C:2004:310:SOM:EN:HTML

• Reform Treaty: 2007 http://www.consilium.europa.eu/cms3_fo/showPage.asp?id=1317 – Divides into TEU and TFEU

Constitutional Principles between EC and Member States

• The EC as constitutional system and autonomous legal order and democracy

• Direct effect and supremacy of EC law • Sincere cooperation, Art.10 EC• Principle of attributed competences, Art.5

(subpara.1)• Subsidiarity and proportionality principle, Art.5 EC

(other subparas.)

Constitutional Principles between EC and Member States• The EC as constitutional system and

autonomous legal order: Van Gend and Loos, Costa and ENEL emphasising the principles of autonomous legal order, supremacy and direct effect

Constitutional Principles between EC and Member States

• Constitutional system based on common principles, see Art.6 EU– Based on liberty, democracy, rule of law, and

full protection of human rights – Art.46 EU confirms for Art.6 EU jurisdiction in

regard to action of the institutions

Constitutional principles: autonomous legal order

• Autonomous legal order: attributed with own competences and executing an effective (effet utile) system of law which binds MS and individuals

• Effet utile: general interpretation method connected with direct and indirect effect of EC law, obligation to fully apply and give effect to EC law + Art.10 EC

ECJ on rule of law and democracy

• ECJ: “the fundamental democratic principle that

the people should take part in the exercise of power through the intermediary of a representative assembly”

EU based on the rule of law, separation of powers, independent judiciary, with legal review of EU measures

ECJ on rule of law and democracy

• ECJ and CFI : ´The European Community is based on the rule of law, the EC Treaty constitutes a constitutional charter and creates a new legal order, which established a complete system of legal remedies and procedures to permit the Court of Justice to review the legality of acts of the institutions.’

• Cases Opel Austria CFI Case T-115/94• Les Verts ECJ Case 294/83

Constitutional Principles between EC and Member States• The Constitutional Treaty and Reform Treaty on

democracy and rule of law :

In Art.3 TEU about the Union’s values• values of respect for human dignity, freedom,

democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

Constitutional Principles of EC/EU law: Supremacy of EC law • Reflected by jurisdiction Van Gend and

Loos and Costa and ENEL, in the Constitutional Treaty in Art.I-6 but excluded from Reform Treaty with reference to existing case law in annexed Protocol

• Supremacy: Primacy of European law and supersedes conflicting national law

Constitutional Principles of EC/EU law: Direct effect of European law

• Art.249 (2) EC clarifies the direct application of regulation/direct effect of regulations

• Direct effect of primary law: fundamental freedoms (esp. non-discrimination, Art.39 EC) Van Gend and Loos

• Direct effect of directives under certain circumstances (non-implementation, precise and clear) see case law

Constitutional Principles of EC/EU law: EC and MS

• Direct effect: Individual can rely in court on a provision

whose interpretation (wording, scheme and scope) gives rise to direct effect

(giving rights to individual)• Vertically: individual v. state• Horizontally?: individual v. individual

Constitutional Principles of EC/EU law:Sincere cooperation – Art.10 EC

- applies to relations between the Community’s institutions,

- to the relations of the Community with itsMember States and,

- between Member States and the Community.

Constitutional Principles of EC/EU law: Art.10 EC

• Duties are - all appropriate measures to ensure the

fulfilment of Community obligations- abstain from any measure which might

jeopardise the attainment of Treaty objectives.

Constitutional Principles of EC/EU law: Art.10 EC• Justified the establishment of MS state

liability• The interpretation of national law in the

light of European law (indirect effect)• Reflected in Art.I-5 CT and Art.4 (3) TEU

– The duties are now spelt out in this provision– Linked to respecting equality of Member States

Principle of attributed competences, Art.5 EC (subpara.1)

• Community needs a justification when it acts

Closely connected with the principle of rule of law and democracy, subsidiarity and proportionality

• RT in Art.4 (1) , Art.5 (1 and 2) TEU• RT strengthens this principle

Principle of subsidiarity and proportionality, Art.5 EC• Proportionality closely connected with the

rule of law– Limits the powers of both the Community and

Member States to act and has a decisive procedural aspect (see act of annulment).

– Problem of legal definition of subsidiarity– Protocol on subsidiarity and proportionality

- Avoidance of centralisation, restricts the exercise of powers

- RT: Art.5 (3) and (4) TEU

Proportionality test: Questions

• Is the measure suitable to achieve a legitimate aim?

• Is the measure necessary to achieve that aim, are less restrictive means available?

• Does the measure have an excessive effect on the applicant‘s interests?

Constitutional Principles of EC/EU law: among EC institutions• Institutional Balance, Art.7 EC

– RT: Art.13 (2) TEU

• Sincere Cooperation, Art. 10 EC– RT: Art.4 (2) TEU

Constitutional Principles of EC/EU law: among EC institutions• Institutional balance

– Reflected between EC and EU: Art.3 EU and 5 EU single institutional framework ensuring consistency and continuity of activities

– Problem of clear definition without clear separation of powers: legal principle reflected in Art.7 EC

Constitutional Principles of EC/EU law

• Institutional balance– Division between judicial, executive and

legislative powers, ‘checks and balances’- Checks and balances: restrain institutions and

allow them to control each other- examples in legal review and control

mechanism such as EP towards Commission

Constitutional Principles of EC/EU law

• Institutional balance- Argument used to strengthen the role of

the EP- Helping to determine the correct legal

base• RT: Art.13 (2) TEU, linked to sincere

cooperation

Constitutional Principles of EC/EU law: EC law and the citizen• Protection of human rights and citizenship

rights by EC institutions and EC law – No coherent system of protection at the

beginning of EC Treaty– Pressure by national constitutional courts

(since 1970s) to have a human rights protection when adopting EC secondary law

Constitutional Principles of EC/EU law: EC law and the citizen

• ECJ: Stauder case (1969), Nold (1974), Rutili (1975)

Human rights as fundamental principles of Community law and ECJ refers later to European Convention on Human Rights – ECHR - (Council of Europe)

ECHR forms part of general principles common to all the Member States.

• See Art.6 (2) EU

Constitutional Principles of EC/EU law: EC law and the citizen• 1999 Charter of Fundamental Rights of the EU,

not legally binding but taken into consideration as soft law

• With CT as second part - legally binding set of modern fundamental and social rights,

• RT: Art.6 TEU: Charter of Fundamental Rights of the EU legally binding, Union shall accede to ECHR

• Scope: Relevant for Union institutions and MS when implementing Union law

Constitutional Principles of EC/EU law: EC law and the citizen• Principle of proportionality, Art.5

(subpara.3) EC

- Restriction on fundamental rights can only be imposed when in interest of general public and do not interfere intolerably with the rights protected

Constitutional Principles of EC/EU law: EC law and the citizen

• Principle of Transparency, Art.255 EC Reinforcement of democratic legitimacy, Accession

of Nordic countries , With Amsterdam Art.255 EC introduced

• Gives EU citizen access to EC documents– Necessity of sound management and good

administration– Can be denied on grounds of public interest, interest of

the individual, financial interests Community

• Newer case law Cases C=39/05 P and C-52/05 P stress importance in legislative process for legitimacy

Summary

• Constitutional and fundamental principles developed over the years through jurisdiction and practice in directions EC institutions, MS and citizens

• Some of them found entry into EC and EU Treaties• Some other added with CT/RT and streamlined

with ECJ jurisdiction• Piecemeal approach reflects the complexity of the

existing systems and legal orders

The Reform Treaty 2007

• Keep two Treaties• But one legal personality and merging of pillars,

competence catalogue introduced in TFEU• Inclusion of Charter of Fundamental rights as

separate document with reference that Charter has the same legal value as Treaties

• CT left-overs: Extending qmv and establish permanent Council presidency, reducing number of Commissioners, withdrawal clause

The Reform Treaty 2007

• http://www.law.leiden.edu/general/img/Lisbon_Treaty_summaries_tcm19-59722.pdf

• Downtone language – No minister of foreign affairs (High Representative)– No constitution– No new legal instruments

• Same inherent problems: merging of pillars but keeping the differences in decision-making and legal review (esp. For former 2.pillar)

The current pillar system

Pillars of supranational (EC) and intergovernmental nature in form of CFSP and PJCCM and legal personality only given to EC (Art.281 EC)

Resulting in - difference in decision-making- difference in legal instrument- difference in legal control of ECJ

The current system: Difference in decision-making

SupranationalLegislative initiative CommissionCouncil normally qmvEP usually co-decision

IntergovernmentalEuropean Council and Council defining policies (see Art.13 EC)Unanimously acting (see Art.23 EU)Commission informed but no general initiative EP no role

The current system: Difference in legal instruments and effect

SupranationalArt.249 EC: secondary law in form of regulations, directives and decisions

Supranational law, supremacy, direct effect

IntergovernmentalCFSP: common strategies, joint actions, common positionsPJCCM: common actions, framework decisions, conventionsBinding under international law

The Current system: Difference in legal review by ECJ

SupranationalArt.220 EC and ECJ case lawEC constitutional law - Full legal review of legality of measures and application of EC law

IntergovernmentalPJCCM: Art.35, 46 EU- only limited controlCFSP: No control

Reform Treaty: TEU and TFEUTEU: Treaty on the European Union• Institutions• Provisions on CFSP/CSDP• Legal personality, withdrawal

TFEU: Treaty on the Functioning of the Union • Division of competences • Policies (including Area of freedom, security and justice)• Procedural institutional provisions • Legal acts and adoption procedures

Summary – Part I

• Keywords: General terminology• Keywords: EU Institutional law• Keywords: EC as special legal order• Keywords: Legal protection/procedures

Keywords: General terminology

• Legal terminology– What are legal sources?– What are legal principles?– What is the hierarchy of norms?– What is the difference between public and

private law?– What is constitutional law?– What is international law?– What is national law?

Keywords: EU Institutional law• The Institutions and their actions

– Supranational/intergovernmental: three pillar system– What are the tasks of the different EU/EC institutions?– Legal basis, what is a legal basis and can you use

multiple legal bases?– Legal effect of EC legal sources – Different decision- and legislation-making procedures– Fundamental institutional principles – Legal procedures/review

Keywords: EC as special legal order

• The special legal order:– EC as a supranational legal order based on

principles of supremacy and direct effect– Constitutional system based on fundamental

principles and full legal protection– Difference between supranational

intergovernmental pillars

What is supranational?• MS delegate certain competences to the

common legal constitutional system of the Union– which constitutes of independent legal

institutions: e.g. Commission and ECJ – which implements and applies European law

uniformly in all Member States and – whose laws and legal principles take primacy

over the national law and – which are protected by an effective legal

system

The three pillars of the European Union: why are they different?

European Union

European Community Common Foreign and Security Policy

Police and Judicial Cooperation in Criminal matters

SupranationalLegal effect legislation

Direct effect/supremacyRole ECJ

InterngovernmentalLimited role ECJInternational law

IntergovernmentalNo role ECJ

International law

Keywords: Legal effect of primary and secondary EC law

• Legal effect of EC Treaty (primary law) and EC legislation (secondary law)– Direct effect, indirect effect and state liability– Vertical and horizontal effect: difference and

why does it matter?

Keywords: Legal protection/procedures

• Legal protection/legal procedures– Depending on subject of dispute and legal

status of applicant (institutions/MS and individuals in form of natural or legal person)

• Art.234 EC• Art.230/232 EC• Art.226/227/228 EC• Art.288 EC

Institutional law of the EC/EU• The Institutions and their actions

– What are the tasks of the different institutions?– Legal basis:

• what is a legal basis and • can you use multiple legal bases

– Different decision- and legislation-making procedures • Input of EP varies: from consultation to co-

decision– Fundamental institutional principles

• Attribution of competences• Proportionality/subsidiarity• Institutional balance

Who are the actors of the European Community?• The Five Institutions: actors to make laws and

apply/interpret them in the first EC pillar– Commission– Council of Ministers– European Parliament– Court of Justice & Court of First Instance– Other Bodies: Eco & Soc Com. & Comm. of

Reg.

Commission: Powers & Tasks – Art.211

• Legislation: initiative to make legislations, delegated legislation from Council

• Executive powers and supervisory powers: – Implementation of EC law (infringement procedure)– Administration through bodies and agencies– External representation (delegation) – Policy-making, administration of funds

Council of the EU: Tasks & Powers, Art.202• Legislative and executive functions

– Co-ordination of broad economic policies– Conclusion of international treaties– Making of EC legislation and decision-making– Budget (together with EP)– Second and third pillar (CFSP and Co-ordination

in police co-operation and criminal matters)

EP- Tasks & Powers

• Legislative and supervisory powers– Legislative inputs depends on legal

basis/procedure and policy field• From Co-decision, 251 EC, to only being heard • ask the Commission to initiate legislation

– EU Budget (together with Council)– Committee of Inquiry to investigate alleged

contraventions – Election and Motion of censure against

Commission

EP- Tasks & Powers

• Supervision of the Commission– Approve President of Commission– Approve College of Commissioners– Dismiss Commission (as a body) (201 EC)– Power of inquiry (committee, 194 EC)– Appointment of an Ombudsman – Other institutions (European Council, Council,

ECB) submit reports

The Common Judiciary

• European Court of Justice (ECJ)• Court of First Instance (CFI)

– (Judicial Panels: EU Civil Service Tribunal)

• National courts (234 EC)• Division of tasks ECJ and CFI: blockbook

pp.30-31