EU LAW OUTLINE
FALL 2008
We are going to be looking at constitutional issues in comparison to ours.
Why is EU Law modeled after US? It is modeled after the US because the US is the only country that has an international legal system; 50 legal systems, and one federal law.
Each state is a common law sovereign jurisdiction, and has granted to the federal system some powers.
EU has been established through the experience of the US, not necessarily the outcome.
The tools we learn from phase 1, we will use later when we learn about the four freedoms.
Big players: UK, France, Germany, Italy, Spain & Portugal, Sweden & Finland, Benelux, Commission, and US. (Commission is always thinking about the good of Europe, even if it may hurt a single member country.)
Other players: Poland, Hungary, Czech Republic, Turkey, Greece, Baltics, and Ireland.
History
51- ECSC/Euratom
58- Treaty of Rome, EEC
1958-1985- European pessimism
85- Single European Act (SEA) (EC)
92- Maastricht Treaty (Treaty on European Union, “TEU”)- monetary and political goals
· EU is composed of Three Pillars:
EC law
Security and Foreign Policy
Justice and Home Affairs
97- Treaty of Amsterdam- put in writing the protection of individuals for new states embodied in the acquis communautaire.
Treaty of Nice (financial rights)
04 Enlargement
05 Constitution – no
Lisbon treaty attempts to ram the Constitution through as the Treaty of Lisbon, saying that it does not need to be subject to Ireland’s
08 Reform Treaty
6/12/08 Ireland now requires everything to go to Referendum
White paper- government paper final document (more important than a green paper)
28 August
Constitutive treaties: Treaty of Rome and Treaty on the European Union. All others are not.
Pg 30
ECJ treats the constitutive treaties as creating a “new legal order” which is governed by its own rules, rather than as ordinary international agreements construed according to conventional international law principles.
Amendments are still treaties. All amendments must be ratified by all member states.
Plenary power in the US is in the states.
EU states can still have agreements with other countries/organizations outside the EU.
Brussels Convention is a mild form of recognition of judgments of other countries.
Council of Ministers (THE Council)- most important institution of the EU
The President is the country and it sets the agenda.
Voting-
There has been a move to qualified majority.
Two areas where unanimity is required: accession of new states, the harmonization of tax legislation, and the budget.
COREPER- highest staff level
The Luxembourg Accord is a soft veto over sensitive issues.
European Council
This is not an institution of the community.
Commission
Has responsibility for most legislation. The Commission proposes legislation to the Council.
The President of the Commission is like a PM. He negotiates for the members, each country naming someone, and assigns the portfolios.
Parliament has to approve the Commission as a whole, they cannot pick and choose.
Delegations of Power- pg 49
Pg 50 Note 2- delegation to outside bodies is not allowed
Commission takes people to court.
In Civil law you can’t reverse, you can only remand.
2 September
In a parliamentary system the Prime Minister has to control the majority of number of people, if he does not then he loses legitimacy. If they can no longer command a majority, they have to resign or create a coalition to command a majority for substantial/important legislation. The biggest feature in a parliamentary system is legitimacy. The leader has to best represent the party or else they will be replaced.
European Parliament
5 year term for MEP
European Court of Justice/Court of First Instance
The ECJ relies on the legal systems of the states in order to enforce judgments.
If there is a question of EU law comes up, a state court cannot deal with it. They are required to send the questions to be resolved by the ECJ.
Has some influence in pillar three.
Right to appeal on points of law. (pg 68)
European Court of Human Rights
1950 European Convention on Human Rights (ECHR) adopted.
Formally called European Convention for the Protection of Human Rights and Fundamental Freedoms
Judiciable Acts under Article 249 (ex 189):
Regulations shall have general application. It shall be binding in its entirety and directly applicable to all Member States.
Directives shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.
Decisions shall be binding in its entirety upon those to whom it is addressed.
Recommendations and opinions shall have no binding force.
Article 253 (ex 190) requires that regulations, directives and decisions state the reasons on which they are based and refer to whatever proposal or opinion the Treaty may have required the institutions to obtain before adopting them.
ERTA case (pg 76, Commission v. Council)
ECJ says article 189 does not list all judiciable acts.
The ECJ says that what was going on in the commission for ERTA was considered a judiciable act.
ERTA
They have no concept of judicial review, historically.
The rise of judicial review in the later part of the 20th century is part of the drive for human rights, and using our concept of judicial review as a model.
The Court here is in service against the power in Brussels. The Court is the cushion that ‘protects’ the sovereignty of the individual member states.
The Court is also saying that you cannot bypass the Council/Commission/Parliament by staying you are discussing things outsi
eempts state law
Pigs Marketing Board v. Redmond
Germany v. Parliament and Council
Subsidiary principle
Germany tried to use the “give a reason” requirement to invalidate.
Each member is bound to the entire package of the acquis communautaire.
In the Maastricht treaty there was an opt-out available for the EMU and the Social chapter, and the UK took each and then Blair dropped the social chapter. Denmark opted out of the EMU.
3 original members are not part of the EMU, and the new 10 are not part of the EMU either.
Closer cooperation- has not been used, technically, to justify different standards for different members.
11 Sept
Judicial Review of Community Acts
Under the Rome Treaty Parliament has no standing to bring this matter up, there must be institutional balance.
Parliament only has standing if they have a specific interest.
Private party standing to seek judicial review Article 230 paragraph 4
Any natural or legal person may, under the same conditions [as set out in connection with institutional standing], institute proceedings against a decision addressed to that person or against a decision which, although in the form of a regulation or a decision addressed to another person, is of direct and individual concern to the former.
The Scope of Judicial Review
Lack of Competence is equal to ultra vires or institutional ability to take an action.
Procedural
Transocean Marine Paint Association v. Commission
They got an exemption for 5 years from a provision. Then it had to be reevaluated.
The Court is defending the Commission in paragraph 14.
The ability to be heard is important, so even though the Court is sympathetic to the Commission, there has to be notice and an ability to be heard by the Association.
Administrative Due Process
There is no code of general administrative procedure.
French administrative law is French public law.
You are entitled to:
Notice
Opportunity to be heard
Requirement of giving reasons
Impartial tribunal
Good procedure leads to good substantive law.
Judicial Review is a buffer b/n Brussels and the nation-states.
Internationale Handelsgesellschaft MBH v. Einfuhr- Und Vorratsstelle Fur Getreide und Futtermittel
A fee had to be forfeited if the export did not go out on time.
