Treaties and Institutions

1950 Schuman (federalist) Proposal

1952 Treaty of Paris European Coal and Steel Community (ECSC)

High Authority (executive), 9 gov appointees, binding decisions by majority

Assembly – supervisory – national parliamentary delegates

Council – consultation, decision making – 1 rep. per state

Court of Justice – 9 judges

Regulatory control over coal and steel (mostly government controlled) to joint regional institution

Functional integration

Jean Monnet (functionalist)

1956 Spaak report

Treaties = primary legislation(Folsom pp 1-10, 21-33)

Treaties

1957 Treaty of Rome European Economic

Community (EEC) • a customs union to a common market

• High Authority: Commission

• Council of Ministers

• Parliamentary Assembly – shared with ECSC

• Court of Justice – shared ECSC

• Economic and Social Committee – shared with Euratom

1958 Euratom (peaceful use of nuclear energy)

Treaties

1986 Single European Act (SEA) • Enhanced power to Parliament –

cooperation procedure• Qualified majority voting for

many Council decisions • By default more power to

Commission• Court of first instance (CFI)• European Council recognized as

outside treaty system• Establish internal market by 1992

(no internal frontiers, free movement)

• Expanded areas of Community competence incl environment

• 1986 Spain, Portugal

1992 Treaty on European Union (TEU)Maastricht i.f. 1993• Institutional changes - 3 pillar

structure :CommunitiesCommon foreign and security policyJustice and home affairs

• Ever closer union, commitment to acquis communautaire

• Balanced and sustainable economic and social progress, est EMU incl common currency, citizenship, Ombudsman, principle of subsidiarity formalized, social protocol, opt out protocols, “codecision” procedure

• 1995 Austria, Finland, Sweden

Treaties

1997 Treaty of Amsterdam i.f.

1999• Amendments, simplification,

renumbering• Respect for ECHR• Parts of third pillar into first pillar• integration of environmental

protection• differentiation of integration• consolidation of TEU

2002 single currency

Treaties

2001 Treaty of Nice i.f. 2003

• To prepare for expansion• Bill of rights separate

Convention on the Future of Europe

2003 Draft Constitution for Europe(Folsom pp 366-374)

2004 10 new states ratified (total = 25)

Council (of Ministers), also called Council of the European Union (arts. 202-219 TEC) Brussels, Luxembourg

– Appointed by MSs, composition varies based on portfolio

– Strong legislative power (votes into law based on Commission proposals, delegates power to Commission)

– Approves budget, with Parliament– Develops common foreign policy– Concludes international

agreements– Decisions largely by qualified

voting – Rotating Presidency, 6 months

– Assisted by COREPER

Institutions(Folsom pp 34-72)

Institutions

European Commission (arts. 211-219) Brussels

• independent from government• Nominated by MSs, President nominated by

common accord, EP approval required• 25 commissioners, 5 yr terms• Organized into Directorates General (DG)• legislative power

sole power to propose law

overall legislative plan (work programme)

policy strategies

delegated power from Council

limited own initiative• Executive power

finance, external relations

• judicial, admin poweroversee implementation

European Parliament (art 189-201) Strasbourg

• Directly elected in MSs from among candidates standing (5 yr term)

• Elects President (2.5 yrs)• Work carried out by committees• Supervisory powers

– Budget approval– Power to appoint committees of inquiry

(art 193)– Request Commission to submit proposal

(art 192)– Ombudsman to receive complaints (art

195)• Legislative powers

– cooperation, codecision, assent procedures

– Decisions by absolute majority• Litigation powers

– annulment actions against other institutions, Art 230, in case of infringement of its rights (Parliament v Council, Chernobyl case C-70/88)

– actions against other institutions for failure to act (art 232)

Institutions

European Court of Justice (ECJ) + CFI (Art 220-245)

• 6 yr terms• Assisted by AGs• Procedures, methods solidly civil

law based (written part before oral is most important)

• Powerful law maker by filling the gaps

• Annulment (art 230/231), infringement proceedings (art 232/233), preliminary rulings (art 234), liability of institutions (art 235+ art 288), interim measures (art 243)

• CFI has no jur on points of law, preliminary hearings

• No appeal but may contest within 10 yrs (rules of procedure ECJ)

• Not bound by precedent

Institutions

Institutions

Court of Auditors (art 246-248)

• Financial audits only

Outside Treaty system:

European Council (heads of state + President of Commission) 1974– Not subject to Treaty rules– Formally accepted by SEA 1986

(now in Art 4 TEU)– Adopts declarations, resolutions– V significant in giving EU direction

• Budget• Development of EU• Approves changes in inst structure• Finalizes significant constitutional

initiatives• Initiatives on state of economy• Internal conflict resolution• Policy strategies (social charter 1989)• Guidance for external relations• Consider new accessions

Institutions

Institutions

Other important bodies:• European Investment Bank• European Central Bank• Economic and Social Committee• Committee of the Regions• European Ombudsman

For next time

• news: be able to talk about any EU significant legal matters of the past week

• read Folsom Chapter 2 with the perspective of how law is made and types of legislation.

• go to europa.eu.int, click on EU at a glance, click on EU documents. Go to The legislative process, click on OEIL, then click on OEIL database. Under “All procedures for which a report has been tabled…..” click on “Environment….”, then on second item COM 2003/0107 to view procedure file for this Commission proposal.

• Optional reading, click on second one titled Proposal for a Directive of the European Parliament and of the Council on the management of waste from the extractive industries 2003/0107 (COD). Read pp 1-30.

European Court of Justice (ECJ)

• Procedure:– Written (applications,

statements, defences, documents)

– Oral (judge rapporteur, lawyers, witnesses, experts, AG opinion, judgment)

• Rulings:– collegiate, single, final– separate opinions?

• Preliminary rulings (art 234)

Nature of Treaty obligationsvan Gend v Netherlands (InlandRevenue) case 26/62, prelim ruling• vG was charged an 8% import tariff on

good X from Germany (into Netherlands) based on a national regulation in force since 1960. But the previous import tariff for X had been 3%.

• The EC Treaty had come into force in 1958.

• vG challenged tariff as unlawful.• Why?• Art 12 EECT (now art 25)• Q1: Can legal persons – nationals - of

a state (ie vG) make claims to individual rights based on the Treaty?

• Q2: If yes, does the 8% tariff represent an unlawful increase in tariffs?

EU Law Making

A1:

Must consider spirit, general scheme and wording…

The objective of the Treaty (est. common market)…implies it is more than an agreement which merely creates obligations between states….The EEC constitutes a new legal order of international law for the benefit of which states have limited their sovereign rights…and the subjects of which comprise not only the MSs but also their nationals.

Confirmed by preamble (refers to peoples), and institutiosn (which make decisions affecting citizens), nationals are brought together in Commission, EP…

…Community law not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage.

….therefore, according to the spirit, the general scheme and the wording of the EECT, art 12 must be interpreted as producing direct effects and creating individual rights…..

EU Law Making

direct effects are produced whenever wording is clear and unambiguous, and, there is no need of national state intervention in the form of positive action by the state in order to give it effect.

monist system introduced for some parts of Treaty

EU Law Making

Types of Community legislation• Primary

– Founding Treaties

• Secondary (Art 249)

Regulations– Directly applicable once published– + Variola v Ammin d Finanze

(C34/73), ECR 981– But may affect only a few, or

temporarily limited– Treaty rarely prescribes use

Directives– Binding as to result, ie needs to be

transposed into national law, once notified

– May be addressed to individual states

– Few Treaty provisions prescribe use eg Art 94

EU Law Making

EU Law Making

• Types of legislation

Decisions

Binding on addressee only

Recommendations, Opinions

Open to ECJ review

Court interpretation of types oflegislation

• types to be distinguished substantively, not by formal designation– International Fruit Company v

Commission (1971 C-21-24/72)• other types of legislation may

have legal effects, eg Resolutions– Commission v Council (case 22/70)

1971• direct applicability has also been

interpreted as directly effective – ie provides individuals rights which can be enforced in national courts– Les Verts v EP (case 294/83) 1986

EU Law Making

• Court interpretation of Community law making

– has express and implied internal legislative powers.

– Art 133 express power internationally.

– ECJ has expanded international competence via implied external competence.

– ERTA case 22/70, Kramer 3/76, 4/76, 6/76

– Now in arts. 174(4), 170, 94, 95, 308

EU Law Making

Procedural requirements• proper Treaty basis (art 253)

UK v Council 1996 (C 84/94) re the

Working Times Directive

Art 308 “mop up power” - only where

no other powers provided

Commission v Council 1986 Tariff Preference Case

• statement of reasoningGermany v Commission (case 24/62)

1963

Reasoning to be specific enough to

provide participation/

transparency/facilitate judicial review

EU Law Making

Procedural requirements

• subsidiarity principleArt 5 “… the Community shall take

action …only if and in so far as the objectives cannot be sufficiently achieved by the MSs…and can be better achieved by the Community”

EU Law Making

Procedures

• depends on Treaty article • generally, all institutions

involved in legislating

1. Commission acting alone Art 86(3) wrt undertakings, art 39(3) wrt workers rights

2. Commission with Council only

– Upon delegation from Council, but many checks by Council through committees esp wrt agriculture

– Council acts on proposal from Commission without Parliament eg art 26

EU Law Making

EU Law Making

Procedures

3. Commission proposal to Council in consultation with EP, may also need to consult with Committee of the Regions or Economic and Social Committee

– Eg art 94 re approximation of laws

– Art 175 (2) re measures for the environment

– Failure to consult and wait for EP’s opinion will result in annulment of legislation European Parliament v Commission (Re genetically modified microorganisms in organic products C 156/93)

– EP’s opinion need not be adopted

Procedures

4. Commission proposal + Council + cooperation with EP– Whenever Treaty requires this

procedure, it refers to the Art 252 procedure

– Now mostly in economic and monetary union eg Art 102

EU Law Making

EU Law Making

Procedures

5. Commission + Council + EP: The Art 251 procedure (Co-decision procedure)– Art 95 wrt approximation of

laws– Art 175(1), (3) wrt environment

6. Commission + Council + EP’s assent (approval) only

Eg Art 49 TEU

EU Law Making

Co-decision procedure (art 251)

If EP rejects at any point, no act

Commissionproposal

EP 1st reading

CouncilCommon position

EP 2nd reading

Conciliation committeeOnly EP + Council

Joint text If EP or Council reject, not adopted

Council approves

Council approves

Other indirect ways:• EP requests art 192• Council requests art 208

Voting in the Council to adopt proposals:• Mostly qualified majority (169/237)• Some simple majority• Unanimity in politically sensitive areas• Amendments to proposals require

Council unanimity in art 252• Effect of Luxemburg Accords?• Complex legislative process – large

degree instnl. cooperation – Comm now publishes work program

EU Law Making

For next week:Cases

Commission Work Programme 2005 – google

EU law and national law

ECJ developed two concepts on nature of EC law

1. Direct effect of Treaty provisions

• Van Gend: Treaty provisions may have direct effects for individuals

• individual enforcement of Treaty provisions, vertical

• applies to Community, not Union (eg Art 34(2.)pc TEU)

• Limited scope– must be clear, unconditional,

negative– require no legislative intervention

by states– capable of same interpretation in all

MSs

EC law and national law

Re Direct effect of Treaty provisions

• Flaminio Costa v Enel (C 6/64) prelim ruling– Italy nationalized ENEL 1962, state

aid/competition– FC refused to pay invoice. Nationalising

contrary to various Treaty provisionsECJ:– self executing Treaty provisions have direct

effect– Eg art 31 para 2 was unconditional (severance

of a part of provision)– Regulations pursuant to such Treaty provisions

have direct effect+ (conflicting national laws void if passed after Treaty, conflicting national laws prior to Treaty also void, Community law cannot vary from one MS to another, meaningless if each MS could act unilaterally)

• Reyners v Belgium (C 2/74)– Is Art 52 (now 43) directly effective without

implementing directives? yes

• Defrenne v Sabena (C 43/75)– Re art 119 (now 141) – principle is fundamental,

therefore directly effective

• Direct effects even where no individual rights can be derived

EC Law and national law

Direct effect of other measures

– Regulations – directly applicable and have direct effect

Commission v Italy (C39/72)

– Decisions – yes, sufficiently unconditional, clear, precise

Franz Grad v Finanzamt T (C9/70)

EU law and national law

EU law and national law

Direct effect of other measures

– directivesnational implementation necessary but

van Duyn v Home Office (C41/74)discretion left to MS is limited, publicpolicy measures under directive only tobe based on personal conduct

Pubblico Ministero v Ratti (C 148/78)MS failed to implement directive on time,then individuals may rely on (clear, precise)obligations/rights.

“legitimate expectation” of individual MS “estopped” from preventing individual rights

What about before implementation period over? No individual rights

EU law and national law

direct effect of other measures:

Directives

Marshall v Southampton HA (C152/84)

Direct effect can only be pleaded against the state or state entity, no against private

No horizontal direct effect

What is a state entity = public body?

Up to the MS

EU Law and national law

Direct effect of other measures

– international agreements

international fruit company (C21-24/72)

hauptzollamt Mainz v Kupferberg (C104/81)

EU law and national law

• Indirect effect of directives– Domestic law must be interpreted in

conformity with directive (principle of interpretation) even between private parties

Von Colson v NRW (C 14/83)

• Remedies for breach by MS of obligations

-Adequate and effective

Von Colson

-any national provision which does not allow that must be waived

R v Sec of State for Transport Factortame (C)

- may also result in state liability

Francovich et al v Italy (C6/90, C9/90) Factortame III (1996)

EC law and national law

2. Supremacy of EC law(Foster p 77-81)

Costa v ENEL