International Business Law Part I
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Transcript of International Business Law Part I
International Business LawPart I
European Union
Law
A HISTORICAL
OVERVIEW
The European Union
Two main Ideas, two main Missions:
• Europe
• Union
Europe
A common set of values which can distinguish Europe from non-Europe
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EUROPEAN IDENTITY
European Union
The unification of all the States which take part in the European Identity
HOW?
FUNCTIONALISM
• Step by step process (SPILL-OVER)
• Creation of supranational authorities representative of, but independent from, the Member States
INTERGOVERNMENTALISM
• Closer cooperation between sovereign States
FEDERALISM
• Establishment of a European Federation among independent, but no longer sovereign, States
MULTI-LEVEL GOVERNANCE
• Relationship between the actors and institutions involved at all the different levels of governance
• Network structure
Schuman-Monet Declaration9 May 1950
Unification of Europe1. as the only means for longstanding
peace (a political project)2. as a step by step project (first step: the
unification of a limited field, the coal and steel production)
3. by means of a supranational organizazion open to all countries willing
to take part
The Treaty of Paris1951
The European Coal and Steel Community
(ECSC)Six States:• France
• Germany• Italy
• Belgium• Netherlands
• Luxembourg
The Treaties of Rome1957
• [The European Defence Community (1953): failed]
• The European Economic Community (EEC)• The European Atomic Energy Community
(EURATOM)• Objectives: establishment of a common market (customs union, four
fundamental freedoms, competition policy, regulation of State intervention in the economy, harmonization of fiscal regimes of goods, general cooperation in economic fields)
• Original institutional arrangement (Commission, Assembly, Council, European Court of Justice)
During the 60s,70s, 80s
• 1973: First enlargement: UK, Ireland and Denmark (resignation of De Gaulle)
• 1981: accession of Greece
• 1986: accession of Spain and Portugal
• 1986: Single European Act
Single European Act1986
• Completion of the common market by 31 December 1992
• Institutional reform (cooperation procedure; formal recognition of the European Council)
• Laying down of foundations for greater economic and monetary integration
• Intergovernmental cooperation in foreign policy
During the 90s
• 1992: The Maastricht Treaty
• Application for membership by 12 Eastern Europe States
• 1993: Copenhagen criteria:• Stability of institutions guaranteeing democracy, the rule of law, human
rights, protection of minorities
• Existence of a functioning market economy
• Ability to assume the obligation of membership
• Adjustment of the national administratve structures
• 1997: The Treaty of Amsterdam
The Maastricht Treaty1992
• From the European Economic Community to the European Union, from policies to polity
• Three pillars:• First pillar: The European Community (EC)
• Second pillar: Common Foreign and Security Policy (CFSP)
• Third pillar: Justice and Home Affairs (JHA)
• (EC: supranational; CFSP and JHA: intergovernmental)
• A single institutional framework
Main features
• Serious consideration of democracy and legitimacy
• Institution of EU citizenship
• Introduction of the subsidiarity principle
The drama of ratification
• First referendum in Denmark: no (second referendum in 1993: yes)
• British Parliament: motion of confidence
• Challenges to the Treaty before national courts (UK, Spain, France, Denmark and Germany)
The Treaty of Amsterdam1997
• Area of Freedom, Security and Justice (integration of Schengen
Agreements into the legal framework of the EU; immigration, asylum and the rights of non-EU nationals brought within EC legislative competences)
• Third pillar renamed as Policing and Judicial Cooperation in Criminal Matters (PJCC)
• Stronger commitment for fundamental rights and enforcement of the principle of non-discrimination
• Provisions for “Enhanced Cooperation”• Increasing number of opt-outs (a multi-speed European
Union)
After Amsterdam
Negotiations for membership opened with:• Czech Republic• Poland• Hungary• Slovenia• Estonia• Latvia• Lithuania• Malta• Cyprus• Slovakia• Bulgaria• Romania
The Treaty of Nice2000
• Institutional reform directed at preparing Union for enlargement and at managing internal dissatisfaction
• Different allocation of seats in the European Parliament
• Recalculation of the distribution of the votes between national government within the Council
• [a poor and unsatisfactory compromise]• Proclamation of the Charter of Fundamental
Rights of the European Union (not legally binding)
The way forward
• 2000: Nice: Declaration on the Future of the Union
• 2001: Laeken: Declaration on the Future of the European Union
• 2001: Laeken: Establishment of the Convention on the Future of Europe (its task: to draft the Constitutional Treaty)
The Constitutional TreatyRome 2004
TREATY
or
CONSTITUTION?
STRUCTURE OF THE CT
Four parts:• Part I: general provisions on objectives,
symbols, fundamental rights, citizenship, democracy, institutional framework, law-making
• Part II: Charter of Fundamental Rights (legally binding)
• Part III: EU policies• Part IV: closing provisions• (Abolition of the three-pillar structure)
From Rome to Lisbon
• May-June 2005: French and Dutch referendum against the Treaty
• Period of reflection
• A two-fold process:
1. A political agreement (June 2007)
2. An Intergovernmental Conference with task limited by the mandate of the political agreement (December 2007)
The Treaty of Lisbon2007
• Two Treaties (same legal value):
1. The Treaty on European Union
2. The Treaty of the functioning of the European Union
• Abolition of all the “constitutional” provisions
• The Charter of Fundamental Rights as an annex to the Treaty
The Ratification Procedure
Very complex ratification for:• Ireland (second referendum on 2 October 2009)• Germany (sentence of the Federal Constitutional
Court, 30 June 2009)• Poland• Czeck Republic
• 1 December 2009: Entry into force
EU INSTITUTIONAL FRAMEWORK
MAIN INSTITUTIONS
• European Council
• Council
• Commission
• European Parliament
• European Court of Justice
• [European Central Bank]
• [Court of Auditors]
EUROPEAN COUNCIL
COMPOSITION
• Heads of States or government of the Member States
• President of the European Council
• President of the Commission
TASKS
• makes decisions about the future institutional shape of the EU
• defines the development of the EU policies
• establishes the EU priorities (Agenda-setting role)
PRESIDENT OF THE EUROPEAN COUNCIL
(Lisbon Treaty)• is elected by the European Council for a once
renewabile two-and-a-half year term• doesn’t hold national office• is an additional member of the European Council
TASKS:• Chairs and drives forward the work of the
European Council• Ensures cooperation between the EU institutions• Presents reports to the European Parliament• Represents the European Union externally
COUNCIL
COMPOSITION
• One Minister from each Member State (the Minister who is equipped to represent the government on the topic in question)
• Different formations depending on the issue in question
POWERS
• Legislative functions jointly with the European Parliament
• Decision to delegate normative powers to the Commission
MANAGEMENT OF THE COUNCIL
• PRESIDENCY
- rotation between the Member States for a six-month period
- chairs Council meetings
- represents the Council outside
• GENERAL AFFAIRS COUNCIL
- ensures consistency in the work of the different Council formations
DECISION-MAKING
• Now WEIGHTED system of voting: each MS is allocated a number of votes depending on its size
• From 2014 (or at most 2017): QUALIFIED MAJORITY system (at least 55% of the members of the Council comprising at least 15 of them, and representing MS comprising at least 65% of the EU population)
COMMISSION
INTERNAL ORGANIZATION
Three tiers:
• College of Commissioners (political branch)
• [Directorates-General (administrative branch; similar to national Ministries)]
• [Cabinets (offices of the individual Commissioners)]
COMPOSITION
• One Commissioner from each Member State including the President and the High Representative for Foreign Affairs (from 2014?)
• Persons whose independence is beyond doubt (no conflict of interest)
APPOINTMENT OF THE PRESIDENT
• Nomination by the European Council, after appropriate consultation and taking into account the result of the European Parliament election
• Election by the European Parliament for a five-year term
APPOINTMENT OF THE COMMISSIONERS
• Nomination of individual Commissioners by the President
• Collective approval of the President, the list of Commissioners and the High Representative for FA by the European Parliament, after appropriate hearings
• Appointment by the Council for a five-year term
POWERS OF THE PRESIDENT OF THE COMMISSION
• Involvement in the appointment of individual Commissioners
• Allocation of the individual portfolios
• Dismissal of individual Commissioners (Lisbon Treaty)
• Political guidance to the Commission
• Representative role
POWERS OF THECOMMISSION
• Delegated legislation
• Legislative proposals and agenda-setting
• Executive powers
• Supervisory powers
HIGH REPRESENTATIVE
for FOREIGN AFFAIRS
and SECURITY POLICY
APPOINTMENT
• Appointed by the European Council with the agreement of the President of the Commission
• Collective approval (together with the Commission President and the individual Commissioners) by the European Parliament
ROLE
The HR
• Is a member of the Commission
• Takes part in the work of the European Council
• Chairs the Foreign Affairs Council
TASKS
Conduction of the EU foreign and security policy with the aim of creating a more integrated and coordinated external policy
EUROPEAN PARLIAMENT
MAIN FEATURES
• Aimed at representing peoples of the Member States
• Initially made up of representatives from national Parliaments
• From 1979 directly elected• Proportional representation system• Seats allocated from among Member States
(more or less) on the basis of population• Lack of “European political parties”
POWERS
• Legislative power jointly with the Council• Election of the Commission President• Collective approval of the President of the
Commission, of the College of Commissioners and of the High Representative for FA at the beginning of the term
• Dismissal of the Commission during the term (motion of censure)
EUROPEAN COURT OF JUSTICE
INTERNAL ORGANIZATION
• COURT OF JUSTICE
• COURT OF FIRST INSTANCE (GENERAL COURT)
• SPECIALISED COURTS (JUDICIAL PANELS)
JURISDICTION
• Preliminary reference from national Courts• Enforcement actions brought by the Commission
against European institutions or Member States for breaching of European Union law
• Enforcement actions brought by Member States against other Member States for breaching of European Union Law
• Judicial review of European Community institutions (recourse for annulments)
• Opinions on the conclusion of international agreements by the EU
CONCLUSIVE REMARKS
• Each institution represents a different EU component: principle of the INSTITUTIONAL BALANCE
• Similarity to parliamentary system of government but with relevant differences: a European politics is still lacking
EUROPEAN UNIONSOURCES OF LAW
TREATY ON EUROPEAN UNION
INTERNATIONAL SOURCE OF LAW
AND
THE “CONSTITUTIONAL CHARTER” OF THE EUROPEAN UNION
EUROPEAN UNIONSOURCES OF LAW
• Acts passed by the European institutions
• Hierarchically subordinate to the Treaty
• Distinction between legislative and non-legislative acts
TYPES OF EUROPEAN ACTS
ART. 288 TFEU
• Regulations
• Directives
• Decisions
• Recommendations and Opinions (not legally binding)
REGULATION
• Has general application
• Is legally binding as a whole
• Has direct applicability (automatic incorporation into the domestic legal order of each Member State)
• Is aimed at uniformity of norms in all the Member States
DIRECTIVE
• Is addressed to the Member States• Is legally binding as the result to be achieved• The choice of means and methods of
implementation is left to the national authorities• A national transposition by the deadline stated in
the directive is needed • Is aimed at harmonisation of norms in all the
Member States
DECISIONS
• Legally binding as a whole
• Binding only upon the addressee
• Similar to domestic administrative acts
LEGISLATVE PROCEDURE
CO-DECISION PROCEDURE
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ORDINARY LEGISLATIVE PROCEDURE
LEGISLATIVE ACTS
ART. 289 TFEU
Legal acts adopted by legislative procedure shall constitute legislative acts.
(Formal definition)
NON-LEGISLATIVE ACTS
• DELEGATED ACTS (ART. 290 TFEU)
• IMPLEMENTING ACTS (ART. 291 TFEU)
THE CONSTITUTIONALIZATION
OF THE E.U. LEGAL ORDER
PRINCIPLES
• PRIMACY
• DIRECT EFFECT
• DUTY OF CONSISTENT INTERPRETATION
• STATE LIABILITY FOR BREACHING EU LAW
FOUNDATIONS: VAN GEND EN LOOS (1963)
• Teleological reasoning
• Reference to the people
• Right conferred on individuals directly by Community Law
• Community as “a new legal order of international law”
PRIMACY
COMMUNITY LAW TAKES PRECEDENCE
OVER
NATIONAL LAW
COSTA V. ENEL1964
“The law stemming from the Treaty […] could not be overridden by domestic legal provisions […] without being deprived of its character as Community law and without the legal basis of the Community itself being called into question”
AMMINISTRAZIONE DELLE FINANZE DELLO STATO v. SIMMENTHAL
1978
1. “In accordance with the principle of the precedence of Community law, the relationship between provisions of the Treaty and directly applicable measures of the institutions on one hand and the national law of the Member State on the other is such that those provisions and measures not only by their entry into force render automatically inapplicable any conflicting provision of current national law, but […] also preclude the valid adoption of new national legislative measures to the extent to which they would be incompatible with Community provisions”.
2. “Every national court must, in a case within its jurisdiction, apply Community law in its entirety and protect rights which the latter confers on individuals and must accordingly set aside any provision of national law which may conflict with it, whether prior or subsequent to the Community rule”
DIRECT EFFECT
Nationals of Member States may on the basis of Community law provisions lay claim to rights which the national courts
must protect (Van Gend en Loos)
EARLY CRITERIA FOR DIRECT EFFECT
Has direct effect in national legal order:• A norm of the Treaty• Clear • Unconditional• Containing a negative prohibition, not dependent
upon further implementation
• Only vertical direct effect (between a private party and State)
LIBERALISATION OFDIRECT EFFECT
(1)
RELAXING OF THE PREVIOUS CRITERIA(Defrenne v. Sabena 1976)
Has direct effect in national legal order:• A norm of the Treaty• Sufficiently precise and unconditional• Negative prohibition not needed
• Horizontal direct effect (relationship between private parties)
LIBERALISATION OFDIRECT EFFECT
(2)
DIRECT EFFECT OF DIRECTIVES (Van Duyn v. Home Office 1974)
“Where the Community authorities have, by Directive, imposed on Member States the obligation to pursue a particular course of conduct, the useful effect of such an act would be weakened if individuals were prevented from relying on it before their national courts and if the latter were prevented from taking it into consideration as an element of Community law”
DIRECT EFFECT OF DIRECTIVESWHEN
• From the end of the transposition period
• Only if the Member State has failed to implement (“Estoppel clause”)
• No horizontal direct effect
DUTY OF CONSISTENT INTERPRETATION
The national legislation is to be interpreted in the light of EU law
(INDIRECT EFFECT)
EXTENT OF THE DUTY(1)
Von Colson1984
“It is for the national court to interpret and apply the legislation adopted for the implementation of the Directive in conformity with the requirements of Community law, insofar as it is given discretion to do so under national law”.
EXTENT OF THE DUTY(2)
Marleasing SA1990
All national legislation is to be interpreted in the light of EC Law, irrespective of whether it is implementing legislation or not and irrespective of whether it was enacted prior or subsequent to the provision of EC law in question.
WHEN
• Only from the end of the transposition period
• If the Member State has failed to implement
• Yes horizontal indirect effect
STATE LIABILITY
AN ACTION FOR COMPENSATION AGAINST THE STATE FOR BREACH OF
EU LAW MUST BE AVAILABLE
Francovich and Bonifaci1991
“It is a principle of Community law that the Member States are obliged to make good loss and damage caused to individuals by breaches of Community law for which they can be held responsible”
CRITERIAFOR STATE LIABILITY
• The result prescribed by the Directive should entail the grant of rights to individuals
• It should be possible to identify the content of those rights on the basis of the provisions of the Directive
• A causal link between the breach of the State’s obligation and the loss and damage suffered by the injured parties has to exist
EXPANSION OF STATE LIABILITY
Köbler v. Austria
2003“In the light of the essential role played by the judiciary in
the protection of the rights derived by individuals from Community rules, the full effectiveness of those rules would be called in question and the protection of those rights would be weakened if individuals were precluded from being able, under certains conditions, to obtain reparation when their rights are affected by an infringement of Community law attributable to a decision of court of a Member State adjudicating at last instance”
EU LAW and
ITALIAN LAW
CONSTITUTIONAL BASES
• ART. 11 Const.
“[…] Italy agrees to limitations of sovereignty when they are necessary to allow for a legal system of peace and justice between nations, provided the principle of reciprocity is guaranteed; it promotes and encourages international organizations furthering this end”
• ART. 117, par. 1
“Legislative power belongs to the State and Regions in accordance with the Constitution and within the limits set by European Union law and international obligations”
THE ITALIAN CONSTITUTIONAL COURT CASE-LAW CONCERNING THE
SUPREMACY OF EUROPEAN LAW
FIRST PERIODDEC. n. 14/1964
• Dualistic approach
• European norms and national norms possess the same binding authority: the most recent one prevails
• Denial of supremacy
SECOND PERIODDEC. n. 183/1983 – DEC. n. 232/1975
• Dualistic approach
• Acceptance of supremacy
• Two-folded judicial guarantee:
1. Direct application by national judges of the more recent European norm
2. Declaration of unconstitutionality of the more recent national norm (indirect infringement of art. 11 Const.)
THIRD PERIODDEC. n. 170/1984
• Dualistic approach
• Direct application by the national judges of every European norm, regardless of the time of their enactment
• Irrelevancy of the national norm to state the cases before national judges
RESIDUAL JURISDICTION OF THE CONSTITUTIONAL COURT
1. Direct procedures between State and Regions
Dec. n. 384/1994 – Dec. n. 94/1995
The national or regional norms conflicting with European law are declared unconstitutional
2. COUNTER-LIMITS DOCTRINE
Dec. n. 98/1965 – 183/1973 – 232/1989The European law can NOT violate
fundamental rights or other basic values protected by the Italian Constitution: if it does so, the judge shall apply to the Constitutional Court for judicial review of European law (rectius: for judicial review of the part of the Italian act of ratification of the European treaties on which the contested European norm is based)
(SUPREMACY UNDER CONDITION)
3. European norms lacking direct effect
DEC. n. 170/1984 – DEC. n. 28/2010
When a conflict between a European norm lacking direct effect and a domestic norm arises, the judge shall apply to the Constitutional Court for judicial review of the domestic norm. The national provision conflicting with the European one is declared unconstitutional.
THE ITALIAN CONSTITUTIONAL COURT CASE-LAW CONCERNING THE DIRECT
EFFECT OF THE EUROPEAN LAW
WHEN AND WHAT
Every European norm (other than regulations), if clear and unconditional, can have direct effect in the Italian legal order.
So• Treaty provisions• Decisions of the European Court of Justice• Directives can have direct effect, under the conditions fixed
by the Court of Justice.
PRELIMINARY REFERENCE FROM THE ITALIAN CONSTITUTIONAL COURT
Ord. n. 103/2008
The first preliminary reference from the Italian Constitutional Court in a direct procedure between State and Regions: the Constitutional Court can be qualified as a “national jurisdiction”.