The Constitution and Character of EU law Flashcards
Origins and background: The concept of a single Europe
- The Roman Empire is possible one starting point, with several subsequent attempts at European unity on aspirations towards it
- papal view of ‘Christendom’
- Charlemagne’s ‘Holy Roman Empire’
- Henry IV of France and the Christian Commonwealth of Europe.
- Even the aspirations of napoleon and Hitler
- European unity has also been a common theme of every major political philosopher, e.g., Kant, Rousseau, Nietzsche, and Marx.
- So, history possibly favours the ‘Europhiles’, with ‘euro-scepticism a more recent nationalist hostility on the EU.
- The intellectual architect of ‘Europe’ was Jean Monnet.
What is the background of the EU?
- There were various attempts at integration in the 20th centuries.
- There were based on the need to avoid war, particularly after the Second World War.
- There were two key factors:
- the Treaty of Versailles failed and led to the raise of nationalism.
- so, it was vital to bring Germany within the European ‘partnership’.
- Churchill in his 1947 Zurich speech, said ‘We must build a kind of United States of Europe’.
- The European Union of Federalists was established in 1947.
- Continental advocates of union argued for ‘supranational bodies’ in the Montreux Resolution 1947.
- Various intergovernmental agreements created new world or European organisations at the same time; IMF, GATT; OEEC; The Council of Europe; Benelux Union.
The Creation of the Treaties
- The Treaties originated in the ‘Schumann Plan’ following principles established in the ‘Marshal Plan’ in the USA:
- the narrow aspect was placing French and German coal and steel production under a ‘higher authority’
- the wider agenda was to move towards a federal Europe.
- The plan led to the first Treaty: European Coal and Steel Community Treaty (ECSC Treaty) – Treaty of Paris 1951.
- It also devised an institutional framework of communities (later to be added to by the European Court of Justice).
- Monnet was made first President of ECSC.
- This was followed by an unsuccessful initiative to create a European Defence Community.
- Further integration and a move towards the establishment of supranational institutions came with the two Treaties of Rome 1957
- the European Atomic Energy Treaty (EUROTOM) and
- the European Economic Community (EC Treaty).
- The latter resulted from the Spaak Committee Report and a recommendation for the creation of a ‘common market’.
- The Treaties were originally signed by only six countries: France, Italy, Germany, Belgium, the Netherlands, and Luxembourg.
- Different countries had different things to gain.
- This meant that integration was dogged by national self-interest.
- This ensured that development would be ‘incremental’ and that principle would be sacrificed to pragmatism.
the objectives of the treaties were to be achieved by two means - what were these?
- The creation of a common (now single) market and common policies.
- Monetary Union.
- The former has always predominated and dictated the character of the EU (formally the Community).
- So, the establishment of the four freedoms, the removal of internal barriers and more importantly, the new legal order were required.
The Development of the Treaties (from EC, ECSC, EURATOM, to SEA, TEU, TOA, TON and TOL)
- The original Treaties have been supplemented and modified, firstly within the Community and then by in an evolving Union.
- The early years of the Community, from 1958 to 1965, were characterised by economic boom.
- Good progress was made towards the creation of a ‘custom union’ i.e., dismantling of tariffs.
- But there was far less progress towards an actual common market.
- Some competition policy was put in place.
- Some moves were made towards free movement of workers.
- But there was over prominence of the Common Agriculture Policy (CAP)
- Good work was done by the European Court of Justice (ECJ) in defining the character of the legal order.
- The common market should have been achieved within the ‘transitional period’ i.e., 12 years form 1957, in three four-year periods.
- However, in 1965-1966 de Gaulle created a crisis overqualified majority voting, with France withdrawing from participation in the Council.
- This was partly resolved by the Luxembourger accords, which effectively created a sort of veto
- In many ways the years from then until 1986 and the adoption of the Single European Act (SEA) are seen as years of stagnation in terms of integration
- This can partly be explained by economic recession and the retreat into national interest.
However, in other areas the community did develop:
- by enlargement (firstly to 12 and then to 15 countries)
- by broadening (developing policies in and outside the original Treaty objectives – even though some took some time to be fully adopted because of national self- interest, e.g., Social Charter)
- judicial activism of the ECJ (in defining supremacy and development direct effect and its alternatives).
The effective re-launch of the community come in 1986
The principal reasons for this:
- The Commission Presidency of Jacques Delores
- A commitment of further integration by key political figures in the Member States (notably Chancellor Kohl in Germany and President Mitterrand in France)
- The growing realisation that survival depended on an effective EC
- The adoption of the Single European Act (with a set time scale of 1992 for implementation of the Single Market)
SEA 1986 included five major provisions
- a definition of the internal market and the 1992 deadline.
- a new law-making process in co-operation with Parliament on certain measures
- creation of the Court of First Instance to support the ECJ
- provision for compulsory rather than as hoc meeting of a European Council twice yearly (formally recognised)
- the idea of European Political Co-operation.
Treaty on European Union (TEU) (signed in Maastricht) followed in 1992:
- It did not include everything most states wanted.
- The UK was allowed to opt out of the most important parts in order to secure a treaty at all.
- So, the desired environmental laws were not included.
- There was only agreement to co-operate on defence and justice. Rather than being part of the legal order.
- Eleven out of the then 12 agreed on the Social Chapter, but the UK opted out, thus necessitating the protocol procedure.
- But it did create the union and the idea of European citizenship-though not within the legal order.
Treaty of Amsterdam 1997
renumbered the articles of the EC Treaty, and the UK signed the Social Chapter.
Treaty of Nice
introduced major changes to the composition of the institution, voting procedures, enlargement and ‘enhanced cooperation’.
What was the draft constitution ?
A draft constitution to put all aspect of the EU within the legal order was accepted as the EU Constitution. Some states ratified it by Parliamentary vote but it was rejected by referenda in France and the Netherlands, leaving some doubt as to how the EU would develop. A ‘two-track Europe’ was one possibility.
The Lisbon Treaty
introduced some similar modifications to the Treaties, but without the single constitutional documents. The Treaty is now in force.
Basis aims and objectives of EU law and supranationalism: How are the objectives of the EU stated originally in the EC Treaty and in the TEU?
‘to promote throughout the [EU] a harmonious development of economic activities, a continuous, balanced expansion, an increase in stability, and accelerated raising of the standard of living and equality of life and closer relations between the states belonging to it and sustainable development of economic activities, equality between man and woman, sustainable and non-inflationary growth, a high degree of competitiveness and convergence of economic performance, a high level of protection and of improvement of the quality of the environment, and economic and social cohesion among the Member States’.
- It was easy to assume that the constitution of the EU is no more than what is laid down in the Treaties, but this would only be partly true, because all constitutions are defined by how they are interpreted in the courts.
- The EU constitution has the added compilation of being founded in Treaty relationships entered into by sovereign states (one reason why the EU tried to create a written EU Constitution).
- So, the first issue is identifying how treaties come to be incorporated in Member States law.
what are the 2 approaches to the aims and objectives?
- Monist Constitutions – these include France and the Netherlands. The Treaty is automatically incorporated into the national legal system at the point of ratification.
- Dualist Constitutions – these include Ireland, Germany, Italy and Belgium where the Treaty is only incorporated after enactment.
the result can be wide variance in how the treaties are interpreted are applied
for the legal order of the EU to function, what must the institutions be?
‘supranational’, i.e., in relation to those things covered by the Treaties, they take precedence over national institutions.
The ECJ, in administering and defining EU law, and the principle of ‘supranationalism’ has become vital to the role of ensuring the universal application of the Treaties.
