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Typology: Lecture notes
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The process of European integration started from the willing to avoid further conflicts within the European continent after the II World War. This trend didn’t interest only Europe, but also at an international level and that’s why international organisations were created (ex. Council of Europe deals with the protection of fundamental rights and seats in Strasburg). All the international organisations were traditional treaties to which states agreed to but they didn’t confer to new institutions any innovative power. The first time the possibility to create something new in Europe was the Hague Congress of 1948 in which the future of Europe was discussed. 3 different projects for the future of Europe:
(Churchill and De Gaulle)
supranational institution being progressively leading to a higher level integration. This approach succeeded. This approach started from the idea of seeking a higher integration with a step by step procedure. The Schuman Declaration was presented by French foreign minister Robert Schuman on 9 May 1950. It proposed the creation of a European Coal and Steel Community, whose members would pool coal and steel production. The Schumann Declaration pursues 2 main purposes:
Similarities with the ESCS:
concerning the importance of each state in the global context). Each state has the veto power.
member states or of the Commission, and with the absence of the parliament can determine that there is a clear risk of a serious breach by a member state of the values referred in the treaty. The outcome of the procedure is the suspension of some rights of the member states but not the duties. Treaty of Nice (2001) There were high expectations on this treaty as the results of the treaty of Amsterdam were lower than how it was expected. here was the declaration of the Charter Of The Fundamental Rights of the EU. Even if the protection of fundamental rights was ensured also before. The charter is just something in addition to an already existing mechanism of protection of fundamental rights > before it was done thanks to the general principle of EU law, that is primary source of law. In Nice this was just written down since if you have a list to consult is easier to protect fundamental rights. BUT the charter was NOT binding even if it was adopted. A codification of the fundamental rights protected as general principles of EU law —> this codification is known as Charter of Nice (CFREU). Now fundamental rights are part of the EU law. The Charter of Nice has no binding value. The (failed) project of the Treaty establishing a European Constitution (2004) At the meeting held in Laked in 2001, the European Council convened a convention in order to discuss the future of Europe. A final text is approved in 2004 called European Constitution but it is an international treaty. This was an attempt to reinforce the political dimension of the integration process. Content:
enough to hold that article 12 EEC was breached. ECJ focuses on the the effect of the measure, while the modalities of increase are irrelevant.
art. 13 of the TEU From art. 14 to 19 we find a description of each institution. Main principles guiding the EU institutions:
Union (ex: energy prices in times of war). Then it is for the Commission to implement the Council's conclusions and goals, hence, the Council cannot do anything in practice. During a meeting, conclusions are taken by consensus. Amend the treaties → the treaties, as a matter of principle, can only be modified by the Member states. deciding the specialized configurations of the Council and the composition of the Parliament
the Parliament has the task to appoint the president of the Commission has words in putting an end to the mandate of the Commission = a power that is there but has never been used. It can ask the whole Commission to resign from its office (ex: 1999 the Commission was suspected of corruption and resigned on its own).
The principle of conferral is a consequence of the fact that the EU is a IO and has no original conpetencies but has those competencies that the MS decide to confer to it. Hence, the Eu shall act within the limits of the competencies. In addition to the fact that the EU can only regulate those fields which are mentioned by the treaty as competence of the EU (ex: environmental market), there are other constraints: the EU can adopt EU secondatt legislation in a field of these competencies only to achieve one of the goals set by the treaties under the fundamental principles (subsidiary and proportionality. Everything not expressly conferred to the EU is still competence of the MS: Only states can regulate certain matters. the principle of conferral is a clear example of the voluntaristic nature of the integration process: the eu does not take the competences from the MS, but the latter agree that EU can do something that otherwise they would have done by themselves. the EU is still therefore characterized by the free will of States. the transfer of sovereignty is based on the so-called ‘volutnaristic principle’ This system is quite rigid → there are nonetheless a few exceptions to the Principle of Conferral, solutions that try to make the system work reducing the rigidity → Areas in which the EU alone is able to legislate and adopt binding acts. Member States are able to do so themselves only if given the powers by the EU to implement these acts. The EU has exclusive competence in the following areas: customs union (A customs union is created when a group of countries join together to apply the same rates or import duties on goods from the rest of the world)
III. Principle of subsidiarity (applies only in matters which are not exclusively attributed to the Union, article 5(3) TFEU) By limiting the expansion of shared competences according to the principle of pre- emption, the principle of subsidiarity binds the Union institutions involved in the legislative procedure and in particular the Commission. The beneficiaries of the principle of subsidiarity are the member states who see their sphere of sovereignty protected against the adoption of acts without “EU added value”. Also non-compliance with the principle of subsidiarity may be invoked before the Court of Justice to seek the annulment or declaration of invalidity. Protocol 2 to the Lisbon Treaty Is based on the application of the principles of subsidiarity and proportionality. Allows for an ex ant political control on the respect of the principle. Applies only in respect of legislative act so acts adopted by legislative procedures. The Commission is obliged to undertake extensive and consultations. The burden to “sate reasons” imposed on the Commission by article 296 TFEU includes the obligation to justify every legislature proposal also with regard to compliance with the principle of subsidiarity. Each legislative proposal must be sent by the commission to the national parliaments which have 8 weeks to use a reasons opinion (2 votes for each parliament). The fact that the controls s exercised by national parliaments is consistent with the purpose of the principle of subsidiarity which protects the member states.
TEU and TFEU have the very small Lela value. However the definition of “constitutional charter” has a meaning only from the political point of view since treaties don’t have the structure of real constitutional charters. The practical consequence is a systematic and teleological interpretation which often prevails over literal interpretation of treaties. TEU’s structure
possibility to scrutinise the compatibility of community acts with national constitutions in cases where community insitutiitions had violated the fundamental principles of the national constitutional orders or the inalienable right of the individuals (counter-limit doctrine). The possibility for national courts to have the last word would have substantially undermined the development of the EU legal systems and the role of the Court of Justice as the interpreter of EU Law applied divergently at the national level. The Court of Justice found itself in a difficult position due to its own case law. Change of perspective —> to cope with the position taken by the constitutional courts, the Court of Justice changed its position. In the late 19060s the Court of Justice recognised that fundamental were part of the general legal principles of EU Law and that, as a consequence, the Court was going to ensure that the EU institutions complied with them. The balance between EU Law and fundamental right is no longer a matter of relationship between national norms and norms of EU Law, but between EU norms. In this way there is the full preservation of the principle of primacy of EU Law. Consequences —> Fundamental rights became interpretative criteria for the interpretation of EU Law rules. Most importantly, fundamental rights became yardstick for the assessment of the legitimacy of the activity of the EU institutions and of the vanity if EU secondary Law. Since they are part of the EU primary Law, fundamental rights shall also be complied with by member states when they are implementing Union Law. Fundamental rights can also be used by member states to attempt to justify restrictive measures with respect to other EU Law norms (example: Omega case). The sources of inspiration used by the Court of Justice:
As already mentioned, EU accession to the ECHR is explicitly foreseen in Art. 6 TEU “The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms”. However, the accession of the EU to the ECHR was rejected a first time by the Court already years ago in Opinion 2/94. There was a long course of negotiations leading to a draft accession treaty. In Opinion 2/13 of December 2014, the ECJ again rejected the accession process and ruled that the accession agreement that had been negotiated for the Union's accession to the ECHR was incompatible with EU law because of the risks posed to the autonomy of EU law and the role of the Court of Justice itself. Although Article 52(3) CFREU requires that the rights covered by the CFREU, corresponding to rights covered also by the ECHR, shall be interpreted in such a way as to have the same meaning and scope as those conferred on them by the ECHR, even after the entry into force of the Lisbon Treaty, the ECHR does not constitute a legal act formally integrated into the legal order of the Union (Court of Justice Feb. 26, 2013, Case C-617/10 Åkerberg Fransson, EU:C:2013:105). Omega Case (Rivedi) 14th October 2004 Parties: Omega (German company); Bonn Police Authority, Pulsar (British Company which provided equipment and services to Omega). Omega wanted to operate in Bonn but citizens were against that. Article 56 of TFEU which provides restrictions on freedom to provide services within the Union and article 52 of TFEU which provides exceptions to article 56 on grounds of public policy, public security and public health.
dignity as protected under the German Constitution. The European Court of Justice decided that the German authorities were justified in restricting freedom to provide services on the grounds of fundamental rights. The Question Referred to The ECJ: “Is it compatible with the provisions on freedom to provide services and the free movement of goods contained in the Treaty establishing the European Community for a particular commercial activity – in this case the operation of a so called “laserdrome” involving simulated killing action – to be prohibited under national law because it offends the values enshrined in the constitution?” Issues: German’s sensitivity has increased in recent years with respect to the ECJ’s grasp on fundamental rights in community law situations. Zoning up to the community level, applied by the ECJ was the centre concern. These concerns ran high ahead of the omega decision. Two reasons: