8/8/2019 EUNotes

1/18

European Union Law

June 10, 2008European Union has been called the 21st century super-power

SyllabusJune 10, 2008: Historical Background to the creation of the European Communities

June 11, 2008: The EUs institutional architecture and its evolution

June 12, 2008: The financial and legal instruments of the EU

June 16, 2008: The position of the EU law in the legal systems of the member states andthe relationships between legal orders: the French example

June 17, 2008: Internal Market/Fundamental rights

June 18, 2008: Strasbourg: visit of the European Parliament

Historical Background to the Creation of the European Communities

How and why the EU was born?

What were the major political events and decisions which contributed to shaping its legal

and constitutional structure?

I. Genesis of the European Integration

-The historical roots of European community come out of WWII-September 19, 1946: Winston Churchill: We mist build a kind of United States of

Europe

saying they needed unity between the states, cannot go further on the basis ofdestruction.-States were trying to rebuild relationships between them

-Many political unions arose to do this. They met during the Hague Congress which is

remembered as the Congress of Europe: May 7, 1948 Led to the setting up of aninternational organization which was called the Council of Europe

-Three main goals of unity was based on three main goals:

1) Human Rightsthis goal was achieved by the creation of the Council of

Europe and was founded by the Treaty of London (May 5, 1949) Signed byBelgium, Denmark, France, Ireland, Italy, Luxembourg, Netherlands, Norway,

Sweden, UKthe war was passed and they thought they needed to build relations

by protecting human rights.Council had a Parliament, a Council of Ministers, and a Courtstill the main

actors of Human Rights protection. One of the best-known achievements was the

signing of the European Convention of Human Rights (November 4, 1950). TheEuropean Court has the duty to protect the convention and condemn states that are

not following the convention

2) Economics-Rebuilding of economics. There was the creation of theorganization of The Organization for European Economic Cooperation (April 16,

8/8/2019 EUNotes

2/18

1948)emerged from the Marshall Plan to help the European states to supervise

the distribution of funds and rebuild economy. This was transformed in 1961 and

superceded by the Organization for Economic Cooperation and Development(OECD)still exists today and US is part of it

3) Defense/Security- The Brussels Treaty was adopted in March 17, 1948 and

created the Western EU and signed by Belgium, France, Luxembourg,Netherlands, and UKpurpose was conceived as a response to the Soviets move

to impose control over the countries of Western Europe. It was a cooperation

between states. The main feature was the commitment of mutual defense in caseof an armed attack in Europe. Shortly after was the signature of the North Atlantic

Treaty in April 1949European Countries joined and merged their forces in

terms of defense

At the beginning of the 1950s different structures existed but was based on

intergovernmental corporations. It was not at that time a question of an integrated system

as it was the case for the European Community and EU todaythis was just the genesis

of the system

II. A brief overview of analysis of Integration

-There was a question of choice between the Federal Structure or Confederation and is

still being discussed todaycontroversy of European constitution is a good example

Theories:

1) The functionalist theory in the 1950s: At this time there was a belief that Eurointegration would be best furthered by focusing initially on economic questions

thought this was a matter of supernational institutions. The main idea was to

prevent war and encourage the cooperation between states. People thought thatthe Euro community should stay away from politics and ideologyonly

economic questions

2) The Neofunctionalist Theory of the late 1950s: emerged as an alternative wayto build Europe. Has a common starting point with the Functionalist theory

should be based on cooperation of the states and cooperation non-controversial

sectors. This theory considered that this process should evolve and include othersectors like political ones. The idea that Europe should be based on economic

cooperation and political cooperation. Did not give birth to a real integrated

system, just a stage of it

3) The Neorealist Theory of the 1970s: This theory was in the context of aslowing down of the building of Europe. At that time the supernational, political

institution of the European Community appeared to lose influence. The interest of

individual member states started to be more and more defended by the states,defending their own interests. This emerged as a very important trend:

Intergovernmentalismno integration, just discussion between governments.

Tried to slow down integration. The debate clearly opposed supernationalism tointergovernmentalism

4) From the late 1980s, the new dichotomy is Rationalist theory versus

Constructivist Theory: Debate on the political entity of Europehow should EU

be governed, what kind of system. Attention was given more to actors than states;

8/8/2019 EUNotes

3/18

Not only the states but the intra-national actors. No more European institutions

versus International institutions. Was question of strategy of taking into account

the actorshow they should achieve their goals. On opposite side theConstructivist goals emphasized the bringing together of nations and the EU, No

longer the nations vs. the EU

III. The Stages of the European Integration

Three Stages:

1) The first stage: from the ECSC (European Coal and Steel Community) to theEuropean Communities, 1953-1992: Robert Schuman, who was a strong

supporter of integration, took up an idea originally conceived by Jean Monet and

proposed establishing a ECSC Europe will not be made all at once, oraccording to a single plan. It will be built through concrete achievements which

first create a de facto solidarity. May 9, 1950 (actually the birth of Europe).

France and Germany should cooperate with steel and coal. The first step to

cooperate in this field, and it was very symbolic. Schuman was not just a

functionalist, but also belonged to the neofunctionalist approach thinking thatafter the first stage that Europe could move on to political questions, but start with

economics. This declaration is frequently compared to the American Declarationof Independence. Europeans think this was the first step towards a kind of Euro

constitution. Created by the adoption by the Treaty of Paris April 19, 1951:

established the first European Community. The Treaty became enforceable in1953it put in place a common market in coal and steel between the six founding

countries (Belgium, Germany, France, Italy, Luxembourg, and Netherlands). The

aim of the corporation was to ensure peace between states and was aimed atrecreating a balance between the losers of WWII and winnersForget the past

and the war

Problem in 1954--there was a question of creating a Euro army and there was aproject of adapting a treaty on the European Defense Community. At the birth ofthe project was a French Minister, but when the project went in front of the

French parliament it was rejected. De Gaulle was against the project so his camp

was against--why? This was a questions of sovereignty. Communist also opposedfor different reasons: the allegiance to soviet powerarmy was seen as a weapon

against the Soviet Union

A few months later, three countries tried to re-launch the construction of Europe.There was a famous conference called the Messina Conference and it led to a

decision of furthering the construction and the second main treaty:

The Rome Treaty, March 25, 1957: the treaties establishing the European

Economic Community (EEC) and the European Atomic Energy Community(EAEC) were signed in Rome. The goal was in the field of economics, intending

to create a common market in terms of economic trading/activities (main treaty

starting the Euro integration). Reinforce the stability between the statesif theyhave common interest then there is no reason to fight.

After the signature of the treaty, once again France tried to claim their sovereignty

caused another conflict. The time when De Gaulle said that when there was aquestion of institutional reform, they need to take into consideration each states

8/8/2019 EUNotes

4/18

rolethis led to a political crisis and the French president adopted the policy of

the empty chair, so since France was not there, no rules could be passedit meant

a victory of intergovernmentalismstates more important than the constructionof a community.

Integration process was slow because of all of this. Nevertheless, Europe

experienced an enlargement with other countries wanting to join.1973: UK, Ireland, and Denmark

1986: Spain and Portugal

With the new countries the integration progressed and at that time differenttreaties were adopted to complete the system of governments. There was a revival

of Euro integration. There was a new act: Single European Act, 1986kind of a

treaty, adopted to take into account the new countries and modernize the

institutions of Europe.

2) The Second Stage: From the European Communities to the European Union

1992: February 7, 1992: treaty on European Union or Maastricht Treatycreated

European citizenship. The Treaty creates the EU and brings about a majorinstitutional change in establishing a three-pillar structure=was based on the

image of a Greek temple. Established a new structure for Europe.First pillar is based on the first treaties (Rome Treaty 1957, Economic Treaties in

1957, and ECSC)at this level the decision making process is based on

Integrationthe one adopted at the European Institution.

The second pillar is called Common Foreign and Security Policya new field ofquestions for Europe. Based on Intergovernmentalism.

The third is called Justice and Home affairs. Also based on intergovernmental

discussionsFrance once again was not fully on board for integrationthey only adopted

50.1% of the treatystill wanted their sovereignty

Treaty was revised 3 times: 1996 with the adoption of the Amsterdam Treaty:added a few aspects to the third and second pillar and furthered integration. The

adoption of the Nice Treaty in December 2000very conflicted in France

because this treaty wanted to reorganize the institutions, taking into account thatin 2004, 10 more countries would be added. They wanted to change the

institutions before the addition of 10 new countires. There was also a big debate

on the rules of voting. Nice Treaty is also famous because at that time the Charter

of Fundamental Rights of the EU was createdit was the birth of the Charter,until this time there was no charter

3) The Third Stage: The European Constitution and the Lisbon Treaty 2004: In2000, the countries wanted to have one big text instead of many treaties, in Nice it

was decided that there be a convention that would be mandated to write the

constitution for Europe. October 29, 2004: The Treaty establishing a Constitutionis signed in Rome but it does not enter into force. Giscard dEstaing (1974-1981:

President of France) was very pro-Europe and the construction. He was appointed

as president of the convention that drafted the constitution. It was impt because it

was not only composed of reps from the member states, but also those of future

8/8/2019 EUNotes

5/18

members and Turkey. It was a big democratic convention with reps from the

states. The convention established the constitution which was slightly amended

and the final text was signed in October 2004it was a Rome treaty because itwas signed in Rome. In the Constitution was included all the rules from former

treatiesin order to be enforced all member countries had to ratify and France

said NO. Because of the French the Constitution did not enter into force, it was asad day and a slow down to integration. Why France said NO? its an internal

political question, the people said no to the president of France and to the treaty

Later the Dutch said No as well. France also said no because in part 3 of theconstitution (out of 4) which concerned the provisions of European policies,

France said it was too liberalthought it did not help the people enough. In

France, Constitution is only for States, and this was a problem for them as well.After the failure, the political actors still did not want to stop the integration, they

wanted to go further, this was broken in 2007:

The Lisbon Treaty, December 13, 2007-a complex game of strategies between

political actors. This treaty excludes the provisions on economic policiessame

disposition as in the constitution but only on the institutions and the charter ofrights (mini-Treaty)all member countries are to ratify the treaties.

One main point of treaty: the EU replaces the European Community and meansthat all the three pillars are brought togethernew aspect of the treaty. When it is

ratified there will be two in existence: The Treaty on the Functioning of the EU

and the Lisbon Treaty

June 11, 2008Part II:

How function the European Union institutions today?

What are the major changes enclosed in the Lisbon Treaty to be entered into force in2009?

I. The Political Institutions and their interactions

What are they? What are the functions?European Parliament, Council of the European Union (originally Council

of Ministers), Commission, European Council

How goes the decision-making process? In terms of democracy, of efficiency?

A. The 4 Political Institutions

-EU is characterized by a particular institutional set-up based on a

decision-making triangle

Commissions (only one that can introducenew legislation) Parliament Council of EU

1) The European Council (apart from the decision triangle)

-Not established by the treaties; Born from the practice (starting in1974) of holding summit meetings

-It gathered the Heads of State or Government of the Member

States-Main function: A political body providing impetus and guidance

8/8/2019 EUNotes

6/18

for the European policies

-Not recognized till 1986

-Presidency is assumed by the head of government in charge of thepresidency of the Council of the EUlasts 6 months and changes

every 6 months

2) The Council of the European Union-Represents member states within the EU

-Consists of the representatives-at ministerial level- of the Member

States. The composition of the Council varies according to theagenda for each meeting (If discussing agriculture, then the

ministers of agriculture will make up the Council)

-The Presidency of the Council of the EU follows a rotation. It is

held in turn by each Member State for 6 monthsstill depends onthe topic being discussed

-A few changes since the last enlargement, since 2007,

there is an 18 month program (three

presidencies/countries), those three countries have todetermine the program for the next three terms (18 months)

This has no influence on the presidency itself-Has legislative power in the domain of Community Policies; a

budgetary power

-A power of decision and in practical terms it means that it

has legislative powers. Its the Council that votes andadopts the text with the Parliament (they vote jointly)

Notion can be adopted w/o the consent of the Council of

the EU-They also have budgetary power: this means that the

Council shares the budgetary power with the Parliament.

-The council also participates to the conclusion ofinternational agreements because it also participates in

foreign relations so they have to discuss agreements

-Cannot introduce new legislation, can only make changes(neither can the European Council)

-This system is unusual to any classical institution

-Preparations for work of the Council are carried out by the

Permanent Representatives Committee (Corepar)-Considered an executive body, but can transfer some of the

decisions to the Commissionbut Council still has the main

power of enforcement-Voting Procedures: qualified majority has now become the most

commonly used voting procedure

-The calculation of a majority based on the votes allocatedto each Member State according to a system of weighted

votes that has changed with each successive enlargement of

the Communities and the EU

-A minimum of 255 votes our of 345 (73.9%) is required to

8/8/2019 EUNotes

7/18

reach a qualified majority. In addition:

-A majority of member states (in some cases two

thirds) must approve the decision, (so that smallercountries are not taken advantage of) and

-Any member state may ask for confirmation that

the votes, cast in favor, represent at least 62% of theEUs total population (not mandatory, has to be

asked for) (these rules established in Nice Treaty in

2000)-The establishment of the number of voices for each

state was a big issue and a question of conflict

because some wanted more voice (this is why they

have decided issues above3) The Commission

-Represents the interests of the European Communities

independently of those of the member states

-From November 1, 2004, the Commission is composed of onemember per Member State

-Has the right to propose legislation; is the driving force and theguardian of the treaties; it applies the Union Law; is the executive

body, and it represents the Communities and negotiates agreements

in the field of external relations.

-Only institution that can propose and draft text, then sendto Parliament

-The commission applies the Union Law and also means

that they are in charge of the sanction being addressed, forexample, to the companiesthis is why it is called the

guardian of the treaties

-The Commission has to apply and execute some of thedecisions being taken by the Council of the EU (transferred

to Commission)

-Powers in terms of negotiations and in terms of signaturesof international conventions and treaties

-Current President is Portugese: Jose Manuel Durao Barroso,

elected by the European Council consensus, but it has to be ratified

by the Parliament. President has to appoint the commissioners to aspecial topic (commissioners were chosen by their states)--

changes every 5 years, they are considered the main representative

of foreign relations4) The Parliament

-Represents the peoples of the States which together from the

European Community voice of the people-Its members are elected by direct universal suffrage since 1979.

New rule: 736 members of Parliament (starting in 2009)Right

now there are more than this amount, but it is because there werenew states added, will change in 2009; mandate-term is 5 years

8/8/2019 EUNotes

8/18

(how long they are in Parliament)

-Determined by the population of the states (78 for France)

-Can be reelected after 5 years-President is appointed for 2 and a half-years (this is half of the

mandate)

-Appointed by the members of the parliamentbased on aconsensus, but it rotates between democratic and

conservative even if majority vote is different

-Current President is: Hans-Gert Pottering (GermanPresident)

-Has the power to

1) Legislate, jointly with the Council of the EU,2) The power of the purse (budgetary-jointly shared with

Council of EU);

3) The power to monitor the executiveapproves President

of Commission and can vote censure against the

Commission (this has never been done).-Parliament can address written or oral questions to

the Commission or the Council of the EUa wayto have pressure (political control) on the groups, no

binding effects

B. The Relationships between the Institutions-It is sometimes said that the framers of the Treaty opted for a confederal

rather than federal decisional structure. Do you agree with this

proposition? What role do the Council of Ministers (Council of EU) play?

-A Central Legislative Function-Despite this choice, the Treaty seeks to attenuate some of the

consequences of a central confederal legislative organ. This it does by thefunctions assigned to other institutions. Which one in particular?-The Commission

-What about the voting and decision making rules it imposes on the

Council?qualified majority-In the Community there is no separation of powers between government

coalition and opposition as it exists at the national level. Nor is there a

confident relationship between the Council and the Parliament. Can youidentify any checks and balances?

-Commission answers to Parliament, and censure

-Sharing of legislative power btw Parliament and Council of EU

-Commissions legislation goes to Council of EU and Parliament,if they agree then it is adopted or they can introduce amendments.

If Parliament and Council of EU do not agree then a committee

meets to find a way for them to agree on points, if no agreementthen text is not adoptedboth have to consent

-Are these mechanisms sufficient from the perspectives of democratic

control?-What do you think of the independence of the Commissioners?

8/8/2019 EUNotes

9/18

-What are the main changes introduced by the Lisbon Treaty? Do they

improve the functioning of the EU system?

1) President of the Council will be appointed for 2 years2) Creation of a new institution: The High Representative of

Foreign Affairs and Security Policies (similar to a minister)

3) Concerning the number of Commissioners, there should be lessthan one commissioner per state (18 total)there will be a rotation

of states because some will not be represented

4) Powers of Parliament: more democratic, general procedure forthe common procedure

5) Treaty takes into account the National Parliament more than

before NP would be informed of the propositions discussed atthe level of the EU. NP have the right to speak, doesnt necessarily

mean they will be heard tho

6) The number of Parliaments should not exceed 750

7) For voting majority it has changed to double majority (65% of

the population and 55% is required)

June 12, 2008

B. The Advisory and Financial Bodies

1) The economic and social Committee (ECOSOC)-Composed of 344 members, and members are nominated by national

governments and then appointed by the Council of the European Union

-All belong to Social Groups like: Employees, Workers, and other types ofSocial Groups

-Function: to give advice about economic and social intersts but there

advice is not bindingsimilar to lobbyists in America-This group is recognized by Mistrich treaty, not created in the beginning2) The Committee of the Regions (CoR)

-344 members, representatives of the national regionshave to have and

electoral mandate at the level of their national state-For representation of regional interest

-Created by Mistrich treaty under German influence

-Same function as ECOSOCgives advice and point of view onlegislation, not binding

3) The European Investment Bank

-In Luxembourg

-Provides investments to help some main projects aimed at promotingregional development inside the EU

4) The European Central Bank

-Central Bank for the Euro-Established in 1998 and the bank is gathering the national banks but they

are only the banks that are part of the Euro system (only 50)

-Maintains Euro purchasing power and price stability-The President is currently French and elected in 2003

8/8/2019 EUNotes

10/18

Part 3: The EUs Financial and Legal Instruments

2008 EU Budget: 129.1 billion Euros

Compared to France: 380 billion Euros (2007) and USA: 2.8trillion (2007) or 1.80 trillion

Euros

I. EUs FinancesA. Revenue

-Is equivalent to expenditure

-Has four sources:1) Agricultural duties-less used today

2) Custom dutiesto encourage the freedom of movement-less used today

3) Value-added Tax (VAT) based resourcetaken out of the nationalstates resources-becoming more impt

4) Gross-National-Income (GNI) based resource-becoming more impt

-Germany gives 19.67% of the EU budget

-France is the second with 16.95%-Then Italy and the UK

B. The Expenditure

-Divided into different sectors:

1) Aimed at Sustainable Growthconcerns competitiveness andknowledge-based economy (44.9% of the budget)

2) Natural Resources (31.6%)Market-oriented agriculture and high-

quality food products3) Rural Development (11%)-fisheries and the environment

4) A Global Playersustainable development, peace and security around

the world5) Citizenship, Freedom, Security, and JusticeHealth, Consumer rights,and public dialogue, safety and security in Europe

6) Administrativestaff, buildings, etc (6%)

States Receiving money from European Union: first is France, then Spain, the Germany

-Since France receives the most, they also give the most

-New member states are still net recipients of the funding of the EU

II. The Legal Instruments

A. The sources of the EU Law

1) Primary Law-Also known as the primary or original source of law, canbe seen as the supreme source of law in the EU and the European

Community. It is the apex of the European legal order. It consists mainly

of the founding treaties of the Communities and the Unions.2) Secondary law

-It comprises unilateral acts and agreements

a. Unilateral Acts can be divided into two categories:1. those listed in Article 249 of the Treaty establishing the

8/8/2019 EUNotes

11/18

European Community: regulations, directives, decisions,

opinions, and recommendations

2. Those not listed in Article 249 of the Treaty establishingthe European Community, i.e., atypical acts such as

communications and recommendations, and white and

green papersnot mentioned in the treatiesb. Agreements comprise:

1. International agreements signed by the Community or

the EU and a country or outside organization;2. Agreements btw Member States, and

3. Inter-institutional agreements, i.e., agreements btw the

institutions of the EU

NOTE: Primary law comes from treatiesSecondary comes from the institutions and then enacted by treaties???

3) Supplementary Law

-Besides the case law of the Court of Justice, supplementary law includes

international law and general principles of law. It has enabled the Court tobridge the gaps left by primary and/or secondary law

-International law is a source of inspiration for the Court of Justice whendeveloping its case law. The Court cites written law, custom and usage.

For example, in order to validate the external agreements concluded b the

European Community, the Court relied on the rules of international law

relating to treaty-making power (the international capacity to enter intoagreements with non-member countries and organizations) arising from

international legal personality.

-General principles of law are unwritten sources of law developed by thecase law of the Court of Justice. They have allowed the court to implement

rules in different domains of which the treaties make no mention,

concerning the non-contractual liability of the European Community, forexample.

Types of Requests to make to the Court:1) Requests for preliminary rulings-question of interpretation to make a uniform

interpretation

2) Action for failure to fulfill obligationsusually the European commission requests to

the court to see if a state has violated a European law3) Actions for annulmentone of the institutions has adopted a regulation and is in

violation of lawgoes to the court of first instance (first level of request)

4) Action for failure to act-courts can say to the institutions that they should have acted aspecific way and have not done their job (violation of law)goes to court of first

instance (first level of request)

5) Appealsclassic type of request, appeal against a decision adopted by the court offirst instance

6) When some civil servants of the EU do not do their job, they can be fined, this is a

request against an action of a civil servant

A. The Legal Effects of the EU Law

8/8/2019 EUNotes

12/18

1) The direct effect

Judgment of the Court, Van Gend & Loos, Case 26-62 (February 5, 1963)

The Van Gend & Loos judgment is one of the most important

judgments in the development of the Community legal order. The European Court

of Justice specifies that the Community constitutes a new legal order of

international law for the benefit of which the States have limited their sovereignrights and the subjects of which comprise not only Member States but also their

nationals. The Court concludes from this a fundamental principle: that of the

direct effect of Community Law.Direct Effect Criteria:

1) Provision must be sufficiently clear and precisely stated

2) Provision must be unconditional3) Provision must confer a specific right for the citizen to base his claim

on

If these three criteria are satisfied, then National Courts have the duty

to enforce the right in question. They cannot say that a states law is

sovereignthis was saying that national courts are obliged to apply andprotect the rights of the citizens on the basis of EU law. EU law has a

direct effectimpt in terms of relationships between legal systems, firststep of European courts to regulating EU law

Direct Effect is applied to Primary and Secondary law

2) The Supremacy

Judgment of the Court of Justice, Costa v. ENEL, Case 6/64 (July 15, 1964)

Fundamental judgment of the Court in respect of principles, the Costa v.

ENEL judgment shows that the EEC Treaty has created its own legal system

which has become and integral part of the legal systems of the member states, andthat Community law takes precedence over national law

Where there is conflict btw EU rules and national rules, the EU lawsshould apply (French courts do not agree with this)

June 16, 2008

Part 4: The Position of the EU law in the Legal Systems of the Member States

The relationship between legal orders: The French Example

The European Unity is an autonomous legal communitythey transferred their sovereignrights to the European level, and they have submitted to the legal order

National judges had the duty to apply the European law.

Position of the national courts very often diverges from the point of view of the European

court of justicesupremacy of EU law and the direct effect of EU law

I. EU Law reception through the French Legislation

-Article 55: International treaties prevail over Acts of Parliament-Article 54: If international treaties contain a clause contrary to the Constitution, the

Constitution shall be amended so that the treaty may be ratified

The French Constitution was amended in 1992 (Mastricht), 1999 (Amsterdam),2005 (European Constitution) , February 4, 2008 (Lisbon Treaty)

8/8/2019 EUNotes

13/18

The Constitutional Council/Judge had in the past to review all the European

treaties that were discussed and has a conclusion, the French Constitution was

amended several times-Specific provisions concerning UE= Title XV

II. EU Law reception in the case-law of high national CourtsTwo Questions:

A. The primacy of EU law over National statutes and regulations?

Pay attention to the way the judicial system works in Francethree main highcourts= 1) Administrative OrderDisputes between citizens and state--Council

dEtat is the Judge; 2) Ordinary System/Judicial Order-- Cour de Cassation

disputes between citizens; 3) Constitutional Council-court specializing in the

question of judicial reviewcheck that statutes conform to the constitution1) March 1, 1968=Famous Case law: Semoules. Conseil dEtat

An administrative court cannot accord treaties precedence over subsequent

legislation which conflicts with them and this applies to Community rules

just as much as to ordinary international conventions. French judge willapply the French statute instead of European law (position in 60s and

70s)2) January 15, 1975: Constitutional Council=decision on abortion

The Constitutional council ruled that it was not entitled to review the

conformity of French legislation to international conventions. It was the

duty of ordinary courts. They had to ensure that international treaties wereapplied. Statute must conform to constitution, not taking into account the

international treaties

3) May 24, 1975: Cour de Cassation= Caf Jacques Vabre case.Instead when a conflict existed between an internal law and a properly

ratified international act which had thus entered the internal legal order,

the Constitution itself accorded priority to the latter. Respect for theprinciple of the primacy of international treaties should not be left to the

Conseil constitutional to secure, since it was the duty of the ordinary

courts before which such problems actually arose to do justice in the case.4) October 20, 1989, Conseil dEtat, Nicolo

The court accepted the apply the treaty and not the French statute even tho

the statute was more recent and adopted after the treaty

5) After this, the Couseil dEtat also recognized the primacy of bothCommunity regulations and directives over French statutes:

CE, September 24, 190 Boisdet: on a regulation adopted after the

French lawCE, February 28, 1992 Rothmans and Philip Morris: on a directive

adopted before the French law

B. The primacy of EU law over the French Constitution itself?

The position of the French court is easy to get: They all have the same

position=the French Constitution is the supreme norm

1) CE, October 30, 1998, Sarran, Levacher et al.

8/8/2019 EUNotes

14/18

The Supremacy conferred by article 55 of the Cion to international

conventions does not apply, in internal law, to dispositions of a

constitutional nature. The Constitution is the supreme norm within thenational legal system

2) CCass: it gave a similar ruling in Fraisse case, on June 2, 2000

3) CC, November 19, 2004Point 10= The title of said treaty has no effect upon the existence

of the French Constitution and the place of the latter of the summit of the

domestic legal order.

III. The New Challenges

=Judicial review of statutes or regulations which are transposing European directives

Two types of French Legal Acts: 1) Transposing thru the adoption of the statutes or2) Government has to adopt regulations

A. The Constitutional Council case-law

1) June 10, 2004: first step

Article 88-1 of the Constitution provides: The Republic shall participatein the European Communities and the EU constituted by States which

have freely chosen, under the Treaties that established them, to exercisesome of their powers in common. The transposition of a Community

Directive into domestic law thus complies with a constitutional

requirement. Transposition of directives by statute is a constitutional

requirement and therefore every time the French parliament adopted astatute, it should be considered constitutional

Constitutional Council completed its position in 2006

2) Second Step: July 27, 2006The Constitutional Council is under a duty to comply with this

requirement; the review it carries out to this end is however subject to a

twofold limitation:a. Firstly, the transposition of a Directive cannot run counter to a

rule or principle inherent to the constitutional identity of France

(principles that come from the history of the Republic), exceptwhen the constituting power consents thereto;

b. Secondly, it can only find a statutory provision unconstitutional

under Article 88-1 of the Constitution if this provision is obviouslyincompatible with the Directive, which it is intending totranspose.

B. The Counseil dEtat case-law

CE February 8, 2007 Arcelor: when the Constitution has a provision on the topicwhich is different from that of EU law, then apply French and if there is an

answer to it then apply EU law

June 17, 2008

Part 5: Selected Issues on free movement of goods and on fundamental rights

8/8/2019 EUNotes

15/18

How the EU evolved from an economic union towards a political union?

What role has the ECJ played?

The ECJ was the main actor in the evolution

I. The Single Market-The cornerstones of the single market are ofter said to be the four freedoms: the free

movement of people, the free movement of goods, the free movement of services, and the

free movement of capital-These freedoms are enshrined in the EC Treaty and form the basis of the single market

framework. The single market is also enabled by additional laws (Directives-adopted

after the treaties) that bring down further barriers in specific areas and are implemented at

national level by Member States themselves.

A. A brief overview of the establishment of a single market1957: These six countries sign the Treaty of Rome creating the European

Economic Community with its common market (pay attention to thewording, because they change with time)1968: Treaty of Rome also established a goal to eliminate all the quotasand tariffs (duties on imported goods) that would be obstacles to the free

movement of goods, but such a goal should be achieved over a period of

11 yearswritten into the treaty: means that inside the common market,

there could not be any tariffs created by the states, it had to be decided bythe European community1986-1992: EU adopts nearly 280 separate items of legislation prising

open hitherto-closed national markets to complete the single market. Inmany areas, 12 sets of national regulations (there were only 12 members

then) were replaced by one common European rule.1993: The single market becomes a reality. Introduced thru the MastrichtTreaty, replaced the term Common Market for Single Market

B. The Example of the Free Movement of Goods1) A customs union: prohibition of customs duties

Articles 23-37 of the EC treaty lays the foundations for a customs union

by providing for the elimination of customs duties between Member States

and by establishing a Common Customs Tariff.

But if matters rested there, free movement would be only imperfectly

attained. It would still be open to States to place quotas on the amount of

goods that could be imported and to restrict the flow of goods by measureswhich have an equivalent effect to quotas.

2) Prohibition of quantitative restrictions between member states: such as

quotas imposed by the member statesThe object of Article 28-31 is to prevent Member States from engaging in

these strategies Quantitative restrictions on imports and exports-andall measures having equivalent effect-shall be prohibited betweenMember States.

8/8/2019 EUNotes

16/18

Underlined portion: The meaning of this expression was not clear at that

timeWhat does it mean?: all measures having equivalent effect to a

quantitative restriction (MEQR)

The court have given a broad interpretation to such a phrase

Usually these MEQR were used towards imports. A MEQR was

a discriminatory or protectionist measure. ECJ, February 20, 1979, Cassis de Dijon case:

In this case a German regulation fixed a minimum alcohol conternt

of 25% for the marketing of fruit liquors. Therefore the FrenchCassis de Dijon (with 20% of alcohol) could not be imported and

sold in Germany.

*The court held that Article 28 can apply even when

there is no discrimination between domestic goods and

imports

*The court spelled out the general principle called the

principle of mutual recognition, which is now the most

famous part of the ruling: There is therefore no validreason why, provided that they have been lawfully

produced and marketed in one of the Member States,

alcoholic beverages should not be introduced into anyother Member State. The principle of mutual recognition

was an alternative means for ensuring the free flow ofgoods even in the absence of legislation which harmonized

the relevant rules. Page 61.8

3) The authorized restrictions to free movement of goodsMember states may restrict the free movement of goods only in

exceptional cases mentioned in Article 30

The provisions of Article 28 and 19 shall not preclude prohibitions orrestrictions on imports, exports, or goods in transit justified on grounds of:

1) Public morality

2) Public policy or public security

3) The protection of health and live of humans, animals or plants4) The protection of national treasures possessing artistic, historic,

or archeological valued

5) The protection of industrial and commercial property

Examples on page 64 of packetmeans have to be

proportionate

II. The EU and Fundamental Rights-When the original three European Community Treaties were signed in the 1950a, they

contained no provisions concerning the protection of human rights in the conduct ofCommunity affairs. EC was based on economics not on the human being.

-But since 1957, the position has changed, even though the legacy of economic aims still

remains significant. There is currently a lively debate on the significance of human rights

for the EU and the appropriate scope of an EU Human rights policy.A. The evolution of the relationships between the EU and fundamental rights

8/8/2019 EUNotes

17/18

1) The role of the ECJ

The ECJ played here again a very important role

November 12, 1969, Stauder: The ECJ ruled that fundamental

human rights form an integral part of the general principles of

Community law and are protected by the Court (page 66, point 7)

May 14, 1974, Nold: In safeguarding these rights, the Court isbound to take into account the constitutional traditions common to

the member states and also international treaties for the protection

of human rights of which member states are signatories. (page 69,point 13)

2) The introduction of fundamental rights in the treaties

Article F of the Treaty on EU (1992)first time fundamentalrights became a goal of the Union

Then changes were introduced by the Amsterdam Treaty EU

(Article 6- protection of human rights was developed saying there

would be no violation allowed)

Following the Amsterdam treaty, respect for these fundamentalprinciples was also made a condition of application formembership of the EU (procedure to check that state does respect

and protect fundamental rights)

Adoption in 2000 of the Charter of Fundamental Rights for the

EU (This charter is very similar to the European Convention onHuman Rights)

B. Challenges

Today there is a certain degree of skepticism about the ECJs ability to enforce asatisfactory system of human rights protection for the EU

1) Market Rights vs. Human Rights

The court has been criticized for manipulating the rhetorical force of thelanguage of rights, while in reality advancing the commercial goals of thecommon market. Market Rights are prevailing over other values

fundamental to the human condition

People are considered as part of the economic goal and aim, not ashumans. They have a very liberal view of rights, there is no real protection

of social rights

2) The accession of the EU to the European Convention on HumanRights?

In 1996: The ECJ ruled that the Community lacked competence

under the Treaties to accede to the Convention

Of course, there are links between the EU system and the ECHRsystem:

*Thru the texts: Article 52.3 of the EU charter:

In so far as this Charter contains rights which correspond to rightsguaranteed by the Convention for the Protection of Human Rights

and Fundamental Freedoms, the meaning and scope of those rights

shall be the same as those laid down by the said Convention. Thisprovision shall not prevent Union law providing more extensive

8/8/2019 EUNotes

18/18

protection/

*Thru the Judges: despite some kind of a competition

between the Strasbourg and Luxembourg Courts, we shalladmit that they are trying to establish a dialogue

ECJ, January 2, 2004: The European Court of Justice refers to a

ruling of the ECHR concerning the rights of transsexuals(Goodwin casepage 74, point 33)

The Lisbon Treaty introduced some major changes:

1) It recognized the legal value of the Charter of Fundamental Rights of the EU of

December 7, 2000

2) It recognized the accession of the EU to the European Convention HR. (Suchaccession shall not affect the Unions competences as defined in the Treaties.)