Intro to European Union Law
Professor Franz Merli
Fall 2013
THEORY AND HISTORY
I. Integration theories
a. Functionalism (Supranationalism)– integration is best furthered by focusing on discrete economic sectors which could be managed efficiently and technocratically by supranational institutions away from politics
i. avoid settling disputes over resources aggressively
ii. prevent war positively by bringing nations together
iii. rational technocrats, owing allegiance to functionally specific organization, not a particular member state, make decisions
iv. collective pursuit of mutually beneficial goals
v. since directives have direct effect on individual entities, they must be available in every official language of the EU (which is every official language of each member state).
b. Neofunctionalism – (middle ground between no politics and all politics) integration is a process based on spill-over from one initially non-controversial technical sector to other sectors of possibly greater political salience, involving a graduatal reduction of power of national governments and a comensurate increase in the ability of the center to deal with sensitive politically charged issues
c. Liberal Intergovernmentalism
i. states, rather than supranational institutions as the key actors in the integration process
ii. states pursue their own respective preferences and protect their sphere of power
II. 3 main motives for formation of EU
a. Peace – longest period of peace in Europe after WWII (60 years)
b. Stronger International Stage (politically) – trade negotiations, etc, which are games played on political strength rather than rules
c. Economics
i. more resources, division of labor, greater consumer choice, factor allocation, economies of scale
ii. factor allocation: problem that if one country loses jobs and another onegains jobs, there could be resentment.
iii. economies of scale: increased output reduces of cost per unit
iv. Race to the Bottom: (problem) – economic units flock to the jurisdiction that has the most lax rules for their endeavors
1. happens easier if there are no barriers between the countries
2. minimum standards have become part of the treaties to avoid the race to the bottom
3. combines public welfare and economic concerns
III. History
a. 1944 – Benelux Treaty
b. 1947 – GATT – to liberalize world trade
i. part of the US’s Marshall Plan (provide aid to Europe)
c. 1948 OEEC – Organisation for European Economic Cooperation (Marshall Plan)
d. 1949 – NAT) – North American Treaty Organisation – defense mechanism directed at the Soviets
e. 1950-1953 – ECHR – European Convention on Human Rights
i. notable achievement of the Counsel of Europe at the Congress of Europe
ii. Effective b/c it created a court, separate from EU
iii. caselaw is now guidelines for Human Rights in Europe
f. 1951 – ECSC – European Coal and Steal Community
i. started as proposal to pool coal resources between France + Germany and quell French fears of German remilitarization
ii. 50 year life span
iii. created the High Authority = administrative agency that can make law for the 6 states involved
iv. 9 independent appointess of hte 6 member states
g. 1952 – EDC – European Defense Community
i. rejected by France for fear of German remilitarization
h. 1954 – WEU – Western European Union
i. 1957 – EEC + Eurotom
i. EEC = European Economic Community
1. Parliamentary Assembly + Court of Justice (shared /w ESCS)
2. Council of Ministers + The Commission (Separate from ESCS until the Merger Treaty of 1965, which was repealed by Art. 9 of the Treaty of Amsterdam in 1997)
3.
ii. Eurotom = European Atomic Energy Community
j. 1960 OECD – Organisation for Economic Cooperation and Development
IV. EEC
a. Commission = executive (kinda)
i. less legislative autonomy than in ECSC
ii. Council given power to approve commission legislative proposals
iii. initiates legislation
iv. watch dog of the treaties
v. negotiates international agreements on behalf of the Community
b. Council – approves legislative proposals by the Commission, voting is weighted according the population of the member states.
c. Parliamentary Assembly – little power under the orig. treaty
i. conservative role, questioned the commission
ii. power of censure = ask The Commission to resign
d. Luxembourg Accords = de facto veto
i. agreement to disagree over council voting methods
ii. French wanted unanimous vote on issues regarding an “important national interest”
iii. pleading important national interest was essential a veto because other member states respected it and would not push for a simple majority vote on the matter
iv. this was a motion in the direction of intergovernmentalism, and a problem for supranationalism
V. Single European Act
a. enhanced EP’s power in legislation; legislative cooperation procedure
b. qualified majority voting introduced where it used to be unanimity
c. added to EU competence: economic and monetary union, social policy, economic / social cohesion, research and tech development and enviromental policy
VI. Maastricht Treaty
a. created the TEU
b. three pillar structure – EEC, ECSC, Eurotom, CFSP
c. CFSP – common foreign and security policy (still separate from the rest of the EU)
VII. Amsterdam Treaty
a. enhanced scope of Community power
b. combat discrimination based on sex, race, ethnicities, religion, disability, age, sexual orientation
c. free movement of persons
d. CFSP
e. PJCC – Police and Judicial Cooperation in Criminal Matters
VIII. Nice Treaty – charter of fundamental human rights
IX. Constitutional Treaty (failed)
a. the public started discussing the EU as somthing that regulated their daily life and should be subject to democratic and political debate, which sparked this Constitutional treaty
b. People didn’t like the word “constitution”
c. Convention of the National Parli
f. not formally an EU institution
g. Must resign if President of Commish requests Art. 18(1) TEU
i. appointed and removed by the European Council
VI. European Parliament
a. 14(2) TEU
b. Only directly elected EU institution
c. 6 – 96 seats per Member State allowed for in treaty (5 for Malta, 99 for Germany in reality)
d. Budgetary functions
e. Legislative acts
i. consent to most
ii. can ask the Commission to propose a law
f. 223 TFEU – calls for procedure for election, 5 year term
g. 224 TFEU – Political parties
h. Bureau of Parliament
i. President of Parliament (2.5 year term)
ii. 14 VPs, elected by the Eurpoean Parliament
i. Conference of Presidents – EP President + heads of parties
j. Quaestors – administrative and financial matters
k. This looks most like the House of Reps in the US.
VII. Courts
a. 19(1) TEU + 251 – 281 TFEU –> ECJ
i. the Court of Justice includes the ECJ, General Courts, and Specialised Courts
ii. Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.
b. Composition and Functions of the ECJ
i. 1 judge from each member state – NOT REPRESENTATIVES OF THEIR STATES.
ii. Judges are chosen by a panel of former members of the court, National Courts, and other lawyers of certain competence
1. no public hearing, unlike the US, it is before the panel
2. Questions asked: ability and knowledge of EU law, political inclinations (do they lean more toward the Member State’s needs or the needs of the EU as a whole.
iii. 6 year term – after which must go through the panel procedure again
1. this poses a political problem: Since the Member State will be appointing the judge, this gives the judge the incentive to lean more toward the Member State’s needs, which is contrary to the role they should be filling.
2. Normally after the second term, the judge will feel like they can do whatever they want because they will be quite far along in their careers
iv. Rotating renewal terms – 1/3 of the judges seats are appointed every 3 years.
v. Voting – no dissenting/concurring opinions; no individual accountability
vi. Advocates General – special function in the Court.
1. part of the court with same qualifications as Judges.
2. They prepare the cases and write opinions on how to decide it for the court.
a. published opinions
