1 - evolution, structure and powers of the eu

8/2/2019 1 - Evolution, Structure and Powers of the EU

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EU and Human Rights Lecture 1

Evolution, Structure and Powers of EU

Commission: Makes legal drafts and opinions.

Council of Ministers and European parliament: passes the laws.

Occasionally the above authorities will pass legislation granting the commission a framework under which to

pass secondary legislation.

y Art 288 of the TFEU states the legislative instruments of the EU.They key instruments:

o Treaty is THE primary source of lawSecondary ones:

Regulations & directives are the key onesKey characteristics of regualations:

y Directly applicable it gives right directly to individuals without implicationby the state. Can be used directly in the courts.

y Theyve general applicability so they are addressed to everyone.Of directives:

y Member states have discretion on how to apply themNot directly applicable. Until they are implemented.

yo

Objectives:

- To ensure peace and stability in Europeo Reconcile Germany and France

- Restore and restructure the European economy.The treaty ofRome said it was designed to bring about an ever closer union among the Peoples of Europe.

Idea arose in early 50s. Firstly only had 6 MS. It was initially a very minimal specific legal collaboration coal

and steel. They thought it would be best to put all coal and steel together and share the profits.

Greater integration came in 1957 after signing of T ofRome. So it was quite popular.

Stages of expansion:

- Expansion of 73 when UK joined- Mediterranean expansion- Eastern European expansion.

Conceptual Framework

How do you merge states?

Legally:

- You need an agreement to unite this is called a Treaty. You must draft this document that creates acentral gov (an organic treaty a constitutional treaty). The treaty of rome was the first thing to do

this.

o Theyre either simple: an agreement between states to do something, e.g.: to protectdolphins

o An organic treaty (aka constitutional) is one with a v. particular purpose. Its there to set up anew constitutional structurewith some sort of centeral gov, a new legal order, over and

above the MS. The EU is born from organic treaties.

- The new gov in our case was the Commission which proposes legislation, parliament, gov, legalsystem. (what do each do?)

- These institutions then need powers, which are listed in the treaties. You would find these in theindividual member states. How such a union is categorised depends on the range of powers that are

transferred from the MS to the new legal order and the method of exercising such powers. i.e.: take

powers away from the MS and move them up to the central super gov. you need to surrender power

to make a merger of powers.

- What kind of union you make depends how many and what type of powers you move up.


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There are many ways of merging states.

- One is federalism. US is a federation. A federation is a system of Gov that enabled neighbouringstates to join together & function as a single state under control of a common central gov. Each state

keeps a measure of autonomy whilst pooling certain powers in a central gov. Such important powers

in a federation e.g.:

o Taxationo Foreign policy. You need to become a player on the international field. There is no

international foreign policy in the EU. We have no official united front/opinion on foreignpolicy. The power hasnt travelled up.

o Home policy.- Other ways:

o Supranationalism: a surrender of powers to the centre, but it can only operate by a majority.The majority decision binds the members.

o Intergovernmentalism: The centre can only legislate on unanimity. You cannot force anythingon states without them all agreeing.

Treaties are a way of expanding the union. Rather than just amending a single treaty and consolidating them

all, we just kept signing new ones. To amend would be too much of a federalist way of doing things, was the

general opinion. If it had it would have been Brussels having the power to legislate and adjudicate on any

matter.

There is no single constitutional document (although the Constitutional Treaty tried to achieve this). Insteadthe EU constitution is spread across 7 treaties.

1) ECSC 1951 Merged coal and steel production and shared.Now Expired

2) Treaty of Rome 1957 created the European Economic Commuity.Renamed (thanks to Maastricht) European Community Treaty, then after Lisbon, TFEU

Article 3 lists the powers.

3) Euratom 1957 atomic energy production lines merged and sharedCombined these were the European Communities, but all the treaties created different clubs. The 3 treaties

arent consolidated, but the merger treaty in 1967 made the common institutions.

They shared the same institutions:

- Commission- European Courts of Justice- CP

Seems to have the structure of a super state, but looking at the powers it is less so. It looks like a super state

from an economic point of view, which is very limited. It was an economic experiment. There was a common

market with free flow.

4) Treaty of Maastricht aka Treaty on European Union the most important. It was very controversialbecause it bought new competencies under the ECs.

To expand after Rome, it would make sense to just amend Romes Article 3 which lists the powers.

This created ANOTHER European Union. It says, in article 1 we establish

the European Union no mention of expansion. It built on the EC. It

built to the top and to the side of the existing EU. Built 3 pillars uponwhich the new EU will be founded.

a. 1st pillar economics, ECb. 2nd: CFCP armyc. 3rd: CJHA police, courts, crime, visa, asylum.

It formalised cooperation in Security and Defence in Police matters, but

these powers were essentially intergovernmental in nature.

It also added to the bottom of the first pillar: European and Monetary

Union, citizenship and a social chapter. Thus the EEC became the EC, because it is no longer a purely

economic experiment, but a social experiment too.


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Is it a federation? Has a central Gov. but only in one aspect, under the EC. It has the most important powers. It

has the right headings of a federal state perhaps the footprint of a federal state.

It is purely INTERGOVERNMENTAL in nature. This means it would have no internal legal affects. i.e.: its not

binding at all.

- No legislative powers- No judicial powers

e.g.: MS look at the problem of drug trafficking coming into Europe. To solve they should move officers to theborders to strengthen. Say they agree. France goes back and doesnt want to move its people because it pays

for them and it wasnt them. Youre operating in the 3rd

pillar, in which it cannot operate it cannot legislate

or take it to court because there are no judicial powers. So that policy decision has no internal legal effects its

purely intergovernmental in nature (in legal terms).

So what is the point in drafting the treaty if it cannot be enforced? It gets the collaborators of the biggest

economic experiment of the century to sit down and talk about things that are not economic. This is the only

obligation. Some may see it as a testing-the-water exercise. It enables the MS to enhance their collaboration

to understanding each other.

Theres a lopsided roof of the temple because the only pillar which holds legal weight is the 1st

pillar, whilst

the others have huge political Implications.

The only real law making body is still the EC based on the T ofRome. This is a format protected by memberstates from handing over the power to legislate on FSP and JHA ( 2 and 3

rdpillars) whilst still allowing it to be

discussed. Anything you add to the 1st

pillar is 10 times more important than the 2nd

and 3rd

because of its

legislative powers.

Curtin in The Constitutional Structure if the Union: A Europe of bits and pieces says that this is a fragmented

entity there is onlya notional single entity.

5) Treaty of Amsterdam - 1999Didnt expand the structure of the union, but tried to add on more competencies.

Primarily more immigration decisions, so frontiers to Europe were abolished. It added to the T of

Rome, i.e.: the first pillar.

Added employment as a competency. As it was added to the 1st

pillar it is subject to legislative and

judicial powers resulting in common standards of employment across Europe.

It incorporated and strengthened the Social Chapter which added an enhanced anti-discrimination

power. It added legislative powers to anti-discrimination, and broadened this power past merely anti-

sexism and nationality based discrimination.

The most important thing (in Olgas view) is that visas, asylum and discrimination were moved from

the 3rd

pillar to the 1st

so they too are subject to legislative and judicial powers rather than merely

intergovernmental. As a result the name of the 3rd

pillar became Police and Judicial Cooperation in

Criminal Matters, because home affairs have moved. So the size of the 3rd

pillar has weakened, and

the law making and judicial powers have strengthened.

It also renumbered all the Articles from the T ofRome (?) (EC Treaty). SO reading a case prior to 1999

may refer to articles that are no longer numbered the same.

6) Treaty of Nice- 2000Not as important constitutionally. Didnt change structure. It tidied things up.

Main focus was the rebalancing of votes, so number of votes within the Council of Ministers isproportionate to size.

The subjects where majority voting is used were expanded. However, taxation and social security

issues amongst others are still subject to national vetoes.

NATO should remain the bedrock of Western security and foreign affairs. This could be seen to reflect

the loss of confidence in the 2nd

pillar, as the EU strives to create its own defence identity.

7) Constitutional Treaty failed.Prorities at this time:


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- Simplifying treaties without changing their meaning:. Idea was to create 1 union not two (EC and EU) EC had powers from T ofRome, and EU has ones from Maastricht. This document proposed to list

the powers of the ONE union in one document.

- More precise delamination of powers between MS and EU.- Status of Charter of Fundamental Rights- Role of national parliaments in the European architecture.Convention on the Future of Europe produced draft Constitution in 2003. EU in 2004 signed the Treaty

establishing a Constitution of Europe.Main provisions:

- Only one EU.- 3 pillars merged, but special procedures in foreign policy, security and defence were to be

maintained.

- EC treaties and amending ones will be replaced by the Treaty establishing a Constitution for Europe- Principle of supremacy of EU law recognised.- Reform of institutional structure, composition of commission and definition of quality majority.- Creator of Union Minister of Foreign Affairs- Est. European Council

It was signed but not ratified:

o The heads of states agreed but ratification requires the countries to agree. France & Hollandvoted against it.

Why did the treaty fail?It was a good idea but doomed because:

o It didnt convince the federalists because whilst it looked like it established a United Estatesof Europe (with its own anthem, flags etc), in substance it did not alter powers.

o It let down the pro-European/pro-integrationalists too because it didnt really furtherintegration in substance.

o Those against further integration were unhappy because on the surface it seemed to furtherit. E.g the minister for foreign policy.

The negative response resulted in a period of reflection which lead to more talks and ultimately the

Treaty of Lisbon.

8) Treaty of LisbonAka the Reform treaty. It incorporated some features of the Draft Constitution, but was more

watered down.

Objectives:

o To make the EU more democratico To ensure smooth and efficient functioning of the larger EU in the globalised world. o To enhance integrationo To meet Europeans high expectations of accountability, openness, transparency and

participation.

It tried to take away the threat of the constitution.

It abandoned the constitutional concept. Theres no mention of the constitution/al, and there was

no constitutional symbols.

The Union Minister of Goerign Affairs became the High Representative.

All the powers were the same.

However, it removed the distinction between the EU and EC, and this became a single European

Union. The EC was abolished and the Treaty ofRome renamed: it is now the Treaty on the

Functioning of the European Union (TFEU).There is no distinct 3

rdor 2

ndpillar anymore the EU acts on both of these and has bought them

under the first pillar, meaning they are subject to legislative and judicial power. However the degree

of power varies issue to issue. In order to determine power, the TFEU must be referred to.

It also added an exit clause so a member state can voluntarily withdraw from the EU.

The Treaty ofRome was renumbered again too.

Notes:


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President of ECB said in Sept 2011 that closer union is needed and the treaty needs to be changed so

one member state cannot stray and create financial problems for the others. To do so one needs to

be able to impose decisions.

1 - evolution, structure and powers of the eu

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