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EU Law Starting Revision
Forms of EU law: Primary Legislation: legislation that comes from the treaties. Secondary Legislation: Comes from the Law- making powers given to the institutions under Article 288 TFEU.
Limited competence of EU law • “limited competence” means that there are only some areas of law that have
been passed onto the EU through the Treaties by the Member States. • All other areas are still governed by the member states themselves.
Key info on treaties: • The Treaty of Rome is the founding Treaty of the European Economic
Community (now the EU). It is the main treaty that is referred to. The Treaty of Lisbon changed the name of this treaty and now is referred to the Treaty on the Functioning of the European Union (TFEU).
• The Single European Act, Maastrict Treaty (treaty on European Union) (TEU), Amsterdam Treaty, Treaty of Nice and Lisbon Treaty have all amended the Treaty of Rome and therefore usually you don't need to refer to them directly (with the exception of the Maastricht Treaty which was a more significant amendment than others).
• The TEU has been given greater significance because of the Treaty of Lisbon, and therefore the TFEU is no longer the only Treaty to which you will commonly need to refer to.
Signing of the Maastricht Treaty • Followed a tortuous path • The Danish People voted narrowly against ratification in June 1992, and in
December 1992 the European Council reached an agreement designed to offer a solution to the Danish problem- a second referendum held in 1993 secured a favourable vote. The “yes” campaign prevailed in the Irish referendum in August 1992 and secured a narrow victory in the French referendum of September 1992.
• In the UK the adoption of European Communities (Amendment) Act had to overcome a vote of confidence in Parliament and an action for judicial review by Lord Rees-Mogg (R V Secretary of State for Foreign and Commonwealth Affaird, ex parte Rees Mogg  3 CMLR 101).
• The Act finally received the Royal Assent on 20 July 1993. Germany was the last Member State to ratify the Treaty in October 1993 after a citizen’s challenge to the constitutionality of the German accession.
The Maastrict Treaty or TEU coming into force- 1 Nov 1993 • TEU is an umbrella type of agreement which is often likened to a temple
resting on “three pillars”: the revised EC Treaty, the Common Foreign and Security Policy (CFSP) and that of Cooperation in Justice and Home Affairs (JHA).
• There are big differences between the first pillar and the other two- in terms of the decision- making process, the roe of the European Institutions and the effect of legislation produced under them.
Objectives of the union: Art 2 TEU: to promote economic and social progress; to assert its identity on the international scene; to strengthen the protection of the rights and interests of its citizens; to maintain and develop the Union as an area of freedom, security and justice; and to maintain in full the acquis communautaire.
Major amendments to the EEC Treaty, the TEU: • Establishes a timetable for progress towards Economic and Monetary
Union (EMU) and a single currency. • Changes the EEC into European Community (EC) • Introduces the “co-decision procedure” • Introduces expressly and in writing the “subsidiarity principle” • Introduces the concept of “citizenship of the Union” • Adds several new fields of activity, including employment, culture, public
health, consumer Protection, Trans- European Networks, Industry, and Development cooperation.
• Annexes the Social Policy Agreement (the so called social chapter), concluded between all member states bar the UK, to the Protocol on Social Policy
• Strengthens the provisions on Economic and Social cohesion and on the Environment first inserted by the SEA
• Extends the use of qualified voting • Formalised the “Europe a la carte” approach by including “opt in” and
“opt out” clauses for certain ]]member states (Denmark and the UK)
The Treaty of Amsterdam- 1 May1994 • Modifies the TEU • Lacks a single grand project as its hallmark • Renumbers the provisions of the EC Treaty and of the TEU (by switching
from letters to numbers) and thus has caused a lot of confusion. • Develops the principle of “closer cooperation” (also known as “variable
geometry” or “principle of flexibility” or “Europe a la carte” ) • Introduces new provisions on Fundamental Human Rights (FHR). • Modifies and extends the use of the co-decision procedure and limits the
application of the co-operation procedure to matters concerning the EMU. • Makes provisions for the eventual abolition of border controls on persons
travelling from one Member State by integrating the “Schengen Acquis” into the framework of the EC Treaty (although three protocols annexed to the Treaty grant permanent opt-outs to the UK and Ireland and to a more limited extent to Denmark)
• Ends Britain’s opt out on social policy • Postpones for future resolution the quest for institutional reform to render the
EU ready for enlargement. • Redistributes some content between the three pillars (most of all, from the
“third” pillar now termed “police and Judicial Cooperation on Criminal matters” or “PJCC”) to the EC ‘first’ pillar).
7 December 2000 Solemn Proclamantion of the Charter of Fundamental Rights of the European Union.
Treaty of Nice- Feb 2003 • Came into force (following two referendums in Ireland).
• Lacks a single project as a hallmark again like the TA • Prepares the way for the enlargement of the EU – qualified majority voting,
the co-decision procedure, and the composition of the institutions. • Further develops the principle of “enhanced cooperation” (see Article 11 EC)-
used to be “closer cooperation”- enhanced requiring, significantly, the participation of a minimum of only 8 member states, rather than a “majority”, as previously under the Treaty of Amsterdam.
• Creates a new statute of the Court of Justice (see the Protocol on the Statute of the Court of Justice).
The Treaty of Lisbon 2007 • October 2007, the Heads of State and Government reached a new political
agreement on what was termed the “Reform Treaty”, now more commonly, the “Treaty of Lisbon” – for some, the constitution in all but name.
• Political leaders signed the Treaty of Lisbon in December 2007; due to come into force in 2009, once it had been ratified in all 27 Member states.
• This time, the only member state that decided to hold a referendum was Ireland. In all other Member States, ratification was to proceed by parliamentary vote.
• In June 2008, 53.4% of the Irish people rejected the treaty of lisbon. Meanwhile, ratification proceeded in other countries but provoked some resistance; a legal challenge to the treaty in the Czech Republic was resolved in nov 2008, when the highest court ruled it was compatible with the constitution.
• Similar situation in Germany. • Following Ireland’s rejection of the treaty, the European Council concluded in
June 2008 that Ireland should bring forward proposals to enable it to ratify the treaty.
• At its next two meetings, in Dec 2008 and June 2009, the European Council agreed a compromise whereby Ireland would hold a second referendum on the Treaty, in exchange certain legal guarentees on national sovereignty (e.g on taxation and abortion) ad on keeping the current number of members of the EU Commission.
• Second time round, Ireland overwhelmingly voted yes (by 67% to 33%) after some grandstanding by the Presidents of Poland and the Czech Republic, all Member States were in position to ratify the Treaty, which came into force December 2009.
The Treaty of Lisbon: • Renumbers the Articles of the Treaties; • Ends the “pillar structure” of the EU, and replaces the EU and EC Treaties
with the TEU (Treaty on the European Union) • Increases the scope for cooperation among willing Member States (see article
20 TEU, and Articles 326-334 TFEU) • UK’s opt-out in relation to justice and home affairs are retained. • Alters the statements on the values and objectives of the Union (there is
debate whether the changes are anything other than cosmetic)- articles 2 and 3 TEU;
• Increases the Union’s commitment to human rights- article 6 TEU; • Increases the reach of majority voting within the council of ministers and
definition of qualified majority; • Introduces the office of High Representative for Foreign Affairs and Security
• Introduces a permanent President of the European Council; • Increases the power of the European Parliament further • Changes the way in which the Treaties may be amended ( Article 48 TEU) • Makes provision for States to withdraw from the Union (Article 49 TEU)
A few other boring states joined blah blah
July 2013- Croatia joined making the number of states- 28.
Role of the institutions of the EU
The three primary legislative institutions exist to represent different parties in the EU:
• The Council of Ministers- represents the interests of the Member States’ governments;
• The European Parliament- serves the interests of the EU citizens (same as UK parliament); and
• The Commission- role is to serve the interests of EU as an organisation
Non Legislative: Council of the European Union Also note: The Court of Justice of the European Union (CJEU) and the General Court (formely CFI) are there to adjudicate on cases arising from the Treaty, the Eurpean Central Bank is also significant and there are also other institutions which serve in an advisory or consultative role- e.g the economic and social committee, or the Committee of the Regions.
The European Council is now also now officially recognised as an institution of the EU, since the Lisbon Treaty. Its official recognition has had an effect upon the roles of other institutions, although it does not participate in making legislation. The European Council (Articles 15 TEU; 235-236 TFEU) NOT THE COUNCIL OF MINISTERS!!
• The European Council comprises of the Heads of State or Government of the Member States.
• It’s meetings are known as “European Summits” • It has a broad non-legislative role, consulting on topical political issues and
defining general policy direction for the EU. • The Treaty of Lisbon created the new role of President of the European
Council. Elected by the European Council by qualified majority for two and a half years, the President, who is not allowed to hold national office whist holding the Presidency, ensures the preparation and continuity of the European Council’s work, in cooperation of the President of the Commission, and reports to the European Parliament.
• European Council meetings are four times a year.
• The President of the Commission is a full member if the European Council (Article 15 TEU).
• The new role of High Representative of the Union for Foreign Affairs and Security Policy was also created. The post-holder, elected by the European Council by qualified majority, conducts the EU’s common foreign and security policy (Article 18 TEU).
Council of the European Union (council of ministers) (Articles 16 TEU; 237- 234 TFEU) NOTE THE DIFFERENCES WITH THE EUROPEAN COUNCIL- DO NOT GET CONFUSED! Presidency
• The presidency of the Council is held by each member state, in rotation, for six months. Before taking office, a Member State sets the Programme for its presidency.
Composition • The Council comprises ministers of the Member States, membership changing
according to the matter in discussion. • The General Affairs Council ensures the consistency in the work of the
different council’s configurations. • There used to be as many as 22 configurations, but this has now beeb reduced
Voting • Each state has a number of votes, and the votes are weighted in a similar way
to the weighting of the European Parliament, although they are slightly different e.g although Germany has far more MEPs than UK or Italy, it has exactly the same number of votes in the Council of Ministers.
• Voting in the Council is by unanimity, simple majority voting, or qualified majority, depending on the Treaty requirement for the particular matter.
• When unanimity is required, it can be difficult to press ahead with legislation, as any state has the power to veto. For that reason, amending treaties have continued to extend majority voting to more areas of EU activity.
European Commission (Articles 17 TEU; 244-250 TFEU)
The Commission's main roles are to: • Propose legislation which is then adopted by the co-
legislators, the European Parliament and the Council of Ministers
• - Enforce European law (where necessary with the help of the Court of Justice of the EU)
• - Set a objectives and priorities for action, outlined yearly in the Commission Work Programme and work towards delivering them
• - Manage and implement EU policies and the budget
- Represent the Union outside Europe (negotiating trade agreements between the EU and other countries, for example.).
Commissioners must be completely independent, neither seeking nor taking instructions from their governments and member states must not seek to influence them.
The Commission acts as a “guardian” of EU law, bringing actions against Member States or individuals in breach. It formulates policy, proposes legislation and partakes in discussions on the framing of legislation by the Council and Parliament, and performs an executive role, implementing the Council’s policy decisions, under delegated powers. The Commission manages the EU budget. The Treaty of Lisbon made no new significant changes to the Commission’s functions.
European Parliament (Articles 14 TEU; 223-234 TFEU)
Membership and Functioning • The European Parliament has its sear in Strasbourg and a secretariat in
Luxembourg, with certain sessions and committee meetings taking place in Brussels.
• Members of the European Parliament are directly elected in Member States. Following the June 2009 elections, 736 MEPS were appointed, in accordance with the Treaty of Nice.
• Under the Lisbon Treaty amendments, by 2014 the number of MEPs will be fixed at a maximum of 750, plus the president.
• The European Council, with the Parliament’s consent, will determine the number of MEPs and the seats allocated to Member States, on the basis od population size and “degressive proportionality”(MEPS representing the larger member states by population will represent more people than the smaller states), non having more than 96 nor less than 6 MEPs (Article 14 TEU).
Powers • Originally, Parliaments participation in the legislative process was purely
advisory and consultative. • With the amending Treaties, parliaments powers increased. Notably, where the
co-decision procedure applies as is now the case in many policy areas, Parliament’s approval must be obtained before legislation can be adopted.
• Parliament exerts control over the executive through its right to approve the commission and to dismiss the entire commission.
• It also has powers of scrutiny, including the ability to question Commissioners orally, or in writing, and the power to reject the annual budget.
• The Treaty of Lisbon increased Parliament’s powers still further by the extension of co-decision to more policy areas.