Future of the EU Flashcards
Key challenges
a) Principle of ever closer union
b) Challenges to primacy of EU law
c) Challenges to liberal democracy in MS
Problem 1: Principle of ever closer union
General trend of intensifying integration, in particular functional integration involving technical areas of policy
- Supplemented by spillover effect
a) Extension of EU competence to new ones
b) Adaption of voting rules
Current status of ever closer union
Limited spillover effect
- Exacerbated by progressive end of ‘permissive consensus’
- Difficulties faced by France, Denmark, UK in ratifying Maastricht Treaty
- Rejection of Constitutional Treaty in 2005 by referendum in France and Netherlands
- MS desire to maintain current level of integration rather than further integration or disintegration but EU system not designed to stand still that way
Case studies for ever closer union
a) Voting rights
b) Eurozone crisis
c) Free movement of people
Voting rights case study
Hard to change the law in the EU
- Key areas still subject to unanimous approval, veto powers
- Once law passed, impossible to amend e.g. Citizenship Directive post-Metock
- Problematic for evolving areas eg envt policy
- Strict Qualified Majority threshold at the least
Current EU law making procedure
a) Commission proposes
b) Council must approve by unanimity or qualified majority
c) EP has a veto or right to be consulted
Eurozone case study
The “half built” house
Common interest rate regardless of whether individual economies are in boom or recession
Spillover demands integration of fiscal policy but there is political resistance e.g. Finnish-Italy, Slovakia-Greece
Free movement of people case study
Expanded interpretation of citizenship rights (Grzelcyzk, “financial solidarity”
Effect:
Mass exodus from Eastern to Western Europe
Welfare tourism - travel to get rights
Now restrictive approach (Dano, Alimanovic)
Restrictions not limitations on EU citizenship but objectives of the directive
No self-sufficiency, no right of residence/equal treatment
Problem 2: Challenge to primacy of EU law - Germany
GCC’s acceptance of primacy is not absolute (Gauwiler
- Democratic deficit
- Lack of demos
- Core constitutional identity of Germany
Other examples of legal challenge to EU law primacy - UK
HS2
- Presumption that ECA 1972 intended primacy, but it was only ONE of many constitutional statutes
- Qualified acceptance of primacy than Factortame 2
Other examples of legal challenge to EU law primacy - Denmark
Ajos
- Refusal to apply Mangold (general principles)
- Cannot set aside national law since Accession Act did not confer sovereignty to that extent
Other examples of legal challenge to EU law primacy - Hungary
Drinoczi
- Fundamental rights review and ultra vires review (sovereignty + identity review)
- Constitutional self-identity is fundamental value that is merely recognised by Fundamental Law, cannot be renounced
Problem 3: challenge to liberal democracy (rule of law, rights violations)
Integration relies on national courts being willing to enforce EU law against national governments (Van gen en Loos)
Current processes
Commitment to fundamental rights and liberal democracy enshrined in accession process (Art 6 TFEU)
Internal process is lacking, unclear when human rights or democracy is breached
Solutions for internal processes
a) Art 7 TEU
b) Judicial action
c) Financial pressure
Article 7 TEU
Polish and Hungarian governments
- Art 7 process triggered in Sept 2018
- No majority to trigger the sanctions
- Poland and Hungary to back each other
- Assumption: no more than 1 state breaching at a time
Judicial action
Individual challenges by Commission
Judicial action - Hungary
Commission v Hungary (age discrimination when it fired judges by reducing retirement age)
- By the time ruling made, new judges already in post
Judicial action - Poland
a) Celmer (if rule of law broke down until transfers of people to Poland under EU Arrest Warrant should be suspended?)
- Mutual recognition
- Transfer can be suspended in high risk of unfair trial in case
b) Commission v Poland (legislation by Polish government to increase control over Polish judiciary)
- Interim injunction to suspend firing based on Art 19(1) TFEU
Financial pressure
Poland and Hungary some of biggest beneficiaries of EU funding e.g. Poland backed down - 90% of public infrastructure backed by EU
Multi Annual Financial Framework where there is rule of law conditionality in EU funding
- But more power to Commission, so opposed by Council legal service
