INTRODUCTION TO EU LAW NOTES ON ARTICLES
INTRODUCTION TO EU LAW NOTES ON ARTICLES Curtin’s The Constitutional Structure of the Union: A Europe of Bits and Pieces Writing in 1992, following the passage of the TEU (Maastricht Treaty), he argues that intergovernmental negotiators succeeded in ‘hijacking’ part of the acquis communiautaire1. Curtin sees the non-unitary structure of the TEU as having no place in a “Treaty purporting to build on the acquis communautaire in order to progress towards “an ever closer union among the peoples of Europe.” He advances his argument as follows:
The TEU has a non-unitary structure: The TEU established the ‘three pillar’ approach to the EU — the three pillars are: (i) the Community2; (ii) the Common Foreign and Security Policy (CFSP)3; (ii) Justice and Home Affairs (JHA)4 — all of which fall under the ‘tarpaulin’ of the EU. There are several significant points to note about the pillar structure: o Rationale for the pillar system (from Craig): The Member States (MS) wished for some mechanism through which they could cooperate in relation to CFSP and JHA, since in its absence such meetings would have to be set up to discuss each new problem. This was inefficient. However, the MS were not willing to subject these areas to the normal supranational methods of decision making that characterised the Community Pillar. They did not wish the Commission and the ECJ to have the powers they had under the Community Pillar, because the 2 nd and 3rd pillars concerned sensitive areas of policy considered to be at the core of national sovereignty. Thus decision-making under the 2nd and 3rd pillars was more intergovernmental, with Member States in the Council and European Council retaining the primary reigns of power. o Curtin argues that the Treaty had a “convoluted structure”. He argues that the JHA and the CFSP are “smaller, more specific in scope, and are, as a general rule, not adjusted to the Community approach,” as they are almost entirely inter-
1 This is the entire body of EU law — it includes all the treaties, regulations and directives passed by the European institutions as well as judgments laid down by the Court of Justice. 2 Community: the decision making process under this ‘pillar’ was altered by the Union Treaty — the European Parliament was given a greater role through the ‘co-decision’ procedure (which allowed it to block legislation) and was given the right to request that the Commission initiate legislation. 3 CFSP: established the objectives of EU action in the areas of peace preservation and international security. These objectives were to be designed by the Council of Europe (consisting of heads of states of national governments) with the Council taking decisions to implement it. 4 JHA: governed policies such as asylum, immigration etc. and included cooperation on a range of international crime issues / carious forms of judicial and police cooperation — including the establishment of Europol. Decision making here was dominated by the Council, with the ECJ playing a limited role.
governmental in nature. He goes on to note that “Considerable doubts can rightly be cast as a result on the overall constitutional coherence of the system.” o A single institutional framework: Curtin argues that the the claim in Article C that the Union shall be served “by a single institutional framework” is “mere-lip service to an ideal.” He argues that “some of the EC institutions … have been generously put at the disposal of the Union but in a manner different to their classic Treaty functions.” He suggests that the EU has an “institutional ‘géometrie variable’.” In which the CFSP and the JHA pillars largely use the Council as an instrument of intergovernmental cooperation and pass over the other institutions.5 Craig notes: “examples of a differentiated integration introduced by the Maastricht Treaty were the UK’s opt out from what was then the Social Policy Chapter, the exemption from defence policy provisions of Member States which are neutral or were not full WEU members, and the option for the UK and Denmark to decide later whether to join the arrangements for Economic and Monetary Union.”
The acquis communautaire hijacked: Curtin discusses this point from two aspects. First, by examining the ‘special interest’ protocols (the Danish second-home protocol, the ‘Barber’ protocol, and the Irish abortion protocol) and second, by examining the Social Policy Agreement (which was not signed by the UK) o Special interest protocols: Curtin argues that “the most serious implication of the inclusion as an annex of the Irish Protocol is its possible precedent effect in a more general way. It implies that it is possible for individual Member States to plead and obtain a ‘ring fence’ of unlimited duration around iter alia specific national constitutional provisions … This spectre of a pandora’ box which has been opened is of course profoundly disintegrative and strikes at the heart of the very uniqueness of Community law, as well as the image that has been carefully cultivated since the early 1970’s that the Community takes its human rights protection seriously.” o Social Policy Agreement: This is an agreement between 11 (of the then 12) Member States to implement the 1989 Social Charter. The UK ‘opted out’ of this. The controversial point here is that this is an agreement of only 11 of the 12 Member States — Curtin argues that the “Protocol authorises the ‘group of 11’ to adopt intergovernmental acts amongst themselves (albeit within the framework of the ‘lent’ Community institutions) … What the Protocol does not explicitly do is to confer such acts with the status of Community law. Indeed, the ‘common accord’ of the 12 Member States was precisely that they were not amending the Treaty.”
Conclusion: “The result of the Maastricht summit is an umbrella Union threatening to lead to constitutional chaos; the potential victims are the cohesiveness and the unity and the concommitant power of a legal system painstakingly constructed over the course of some 30 odd years.” 5 The general jurisdiction of the CJEU is specifically excluded with regard to the CFSP and the JHA.
“It must be said, at the heart of all this chaos and fragmentation, the unique sui generis nature of the European Community, its true world- historical significance, is being destroyed. The whole future and credibility of the Communities as a cohesive legal unit which confers rights on individuals and which enters into their national legal systems as an integral part of those systems, is at stake.”
Table showing the pillar structure of the EU:
Mancini: The Making of a Constitution for Europe: Central argument: “If one were asked to synthetise the direction in which the case-law produced in Luxembourg has moved since 1957, one would have to say that it coincides with the making of a constitution for Europe.” “In other words, the Court has sought to "constitutionalise" the Treaty, that is to fashion a constitutional framework for a federal-type structure in Europe.” In supporting this argument, Mancici argues: Supremacy, direct effect, and pre-emption: The case law evidences this drive for constitutionalism. For example in Costa and Van Gend en Loos the court recognised Community pre-eminence and the direct effect of legislation. He notes that, “supremacy and direct effect are usually regarded as two of the three principal doctrines encapsulating the judicial constitutionalisation of the Treaty. The third notion is preemption.” He illustrates this later notion by pointing to the following: under the common agricultural policy the Community has adopted for most products a Community-wide marketing system; the Court has taken the view that the very existence of such a system precludes Member States from legislating within the field covered by it.
European citizenship: Further, he notes that “the Court has of course been aware that certain progressive forces are trying to give rise to a form, albeit still imperfect, of European citizenship and recently, seizing the opportunity offered, it legitimised their efforts with one of its shrewdest judgments.” (see Cowan v. Tresor Public). Reading an unwritten bill of rights into community law: Reading an unwritten bill of rights into Community law is indeed the most striking contribution the Court has made to the development of a constitution for Europe.
Mancini and Keeling: Democracy and the European Court of Justice
Lack of democracy: they argue that the Community was never intended to be a democratic organisation. That is proved above all by the preamble and the first part of the Treaty of Rome in which the word ‘democracy’ is not used at all and ‘liberty’ is spoken of, like ‘peace,’ as a value to be defended. Indeed, the Assembly, composed of members chosen by the national Parliaments, was involved in the exercise of legislative power solely as the addressee of information and as a consultative organ. The power to legislate, though admittedly only on the basis of proposals submitted by the Commission, belonged to the Council of Ministers, an institution composed paradoxically of the leading members of the national executives. They suggest two reasons for this lack of democracy: o First, the Community began life as an international organisation founded on a Treaty between sovereign States. Such organisations do not normally provide for much direct democracy in their decision-making apparatus. o Second, although from the beginning the Community contained supranational elements and provided for some pooling of sovereignty, the Member States were anxious to circumscribe the surrender of national sovereignty within clearly defined limits. Gradual democratisation of the Community since 1957: The Community is no longer an organism that pursues economic and social objectives with institutional mechanisms that are indifferent to the requirements of democracy; instead it has at last been infected with the democratic traditions of the Member States. Although the democratic deficit still exists, and will continue to do so even after the entry into force of the Maastricht Treaty, there is no doubt that it has been reduced considerably since the foundation of the Community. [see, for example, the now increased role for the European Parliament.]
CASES CONCERNING THE NATURE / LEGAL ORDER OF THE EU Case 26/62 Van Gend en Loos v. Nederlandse Administratie der Belastingen [1963] ECR 1 NB: the focus in this case is on the direct effect of Community law, but the court also notes that the Community is a new legal order, under which the states have limited sovereign rights in order to access Community benefits. Facts: a company imported a chemical from Germany into the Netherlands, subject to what they thought was an increased customs charge. At the time, increases in customs charges
were banned by the EEC Treaty (now Art. 30 TFEU) — the charges also violated the EC’s position on the free movement of goods. Van Gend en Loos brings an action in a national court (just a customs and exercise tribunal). The tribunal refers the issue to the CJEU on the question of whether Van Gend en Loos can rely directly on the EEC Treaty. CJEU: found that Van Gend en Loos could rely on the Treaty. The Treaty in principle is capable of having draw down effect — therefore, individuals can enforce rights drawn down from EU law. The article in question (now Art. 30 TFEU) was one of the articles capable of direct effect. States’ arguments: Netherlands, Germany, and Belgium argue that the EEC treaty is a standard international treaty, subject to state law and, therefore, that it doesn’t trickle down such that it can be applied by individuals within member states. This argument is rejected. Court’s judgment (NB: Romer dissents). o On direct effect and sovereignty: The treaty is more than just an agreement creating mutual obligations between the member states — it constitutes a “new legal order of international law.” o Full quote: “The Community constituted a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals. Independently of the legislation of Member States, Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. These rights arise not only where they are expressly granted by the Treaty, but also by reason of obligations which the Treaty imposes in a clearly defined way upon individuals as well as upon the Member States and upon the institutions of the Community.” SR: This is significant, it means that every individual litigating will be able to bypass recalcitrant member state behaviour regarding specific provisions and go straight to domestic courts to draw down provisions from European legislation to get around the national measure. Opinion 1/91 EEA Agreement [1991] ECR 6079 Facts and opinion: (from Craig): the proposed conferral of jurisdiction upon a new EEA Court composed of three judges from the CJEU and three from EFTA states was held to be incompatible with EU law. As was the fact that the agreement would introduce a large body of legal rules which would be juxtaposed to a corpus of identically worded EU rules, with all the problems of interpretation and consistency that would follow. This was said to conflict with what was then Article 220 EC (now Art. 19 TEU) which sets out the basic task and role of the CJEU by providing that it “shall ensure that in the interpretation and application of the Treaties the law is observed.” It was also said to conflict with the very foundations of the EU. For present purposes (on the CJEU’s view of the EU): In this context, the CJEU said the following:
The TEU has a non-unitary structure: The TEU established the ‘three pillar’ approach to the EU — the three pillars are: (i) the Community2; (ii) the Common Foreign and Security Policy (CFSP)3; (ii) Justice and Home Affairs (JHA)4 — all of which fall under the ‘tarpaulin’ of the EU. There are several significant points to note about the pillar structure: o Rationale for the pillar system (from Craig): The Member States (MS) wished for some mechanism through which they could cooperate in relation to CFSP and JHA, since in its absence such meetings would have to be set up to discuss each new problem. This was inefficient. However, the MS were not willing to subject these areas to the normal supranational methods of decision making that characterised the Community Pillar. They did not wish the Commission and the ECJ to have the powers they had under the Community Pillar, because the 2 nd and 3rd pillars concerned sensitive areas of policy considered to be at the core of national sovereignty. Thus decision-making under the 2nd and 3rd pillars was more intergovernmental, with Member States in the Council and European Council retaining the primary reigns of power. o Curtin argues that the Treaty had a “convoluted structure”. He argues that the JHA and the CFSP are “smaller, more specific in scope, and are, as a general rule, not adjusted to the Community approach,” as they are almost entirely inter-
1 This is the entire body of EU law — it includes all the treaties, regulations and directives passed by the European institutions as well as judgments laid down by the Court of Justice. 2 Community: the decision making process under this ‘pillar’ was altered by the Union Treaty — the European Parliament was given a greater role through the ‘co-decision’ procedure (which allowed it to block legislation) and was given the right to request that the Commission initiate legislation. 3 CFSP: established the objectives of EU action in the areas of peace preservation and international security. These objectives were to be designed by the Council of Europe (consisting of heads of states of national governments) with the Council taking decisions to implement it. 4 JHA: governed policies such as asylum, immigration etc. and included cooperation on a range of international crime issues / carious forms of judicial and police cooperation — including the establishment of Europol. Decision making here was dominated by the Council, with the ECJ playing a limited role.
governmental in nature. He goes on to note that “Considerable doubts can rightly be cast as a result on the overall constitutional coherence of the system.” o A single institutional framework: Curtin argues that the the claim in Article C that the Union shall be served “by a single institutional framework” is “mere-lip service to an ideal.” He argues that “some of the EC institutions … have been generously put at the disposal of the Union but in a manner different to their classic Treaty functions.” He suggests that the EU has an “institutional ‘géometrie variable’.” In which the CFSP and the JHA pillars largely use the Council as an instrument of intergovernmental cooperation and pass over the other institutions.5 Craig notes: “examples of a differentiated integration introduced by the Maastricht Treaty were the UK’s opt out from what was then the Social Policy Chapter, the exemption from defence policy provisions of Member States which are neutral or were not full WEU members, and the option for the UK and Denmark to decide later whether to join the arrangements for Economic and Monetary Union.”
The acquis communautaire hijacked: Curtin discusses this point from two aspects. First, by examining the ‘special interest’ protocols (the Danish second-home protocol, the ‘Barber’ protocol, and the Irish abortion protocol) and second, by examining the Social Policy Agreement (which was not signed by the UK) o Special interest protocols: Curtin argues that “the most serious implication of the inclusion as an annex of the Irish Protocol is its possible precedent effect in a more general way. It implies that it is possible for individual Member States to plead and obtain a ‘ring fence’ of unlimited duration around iter alia specific national constitutional provisions … This spectre of a pandora’ box which has been opened is of course profoundly disintegrative and strikes at the heart of the very uniqueness of Community law, as well as the image that has been carefully cultivated since the early 1970’s that the Community takes its human rights protection seriously.” o Social Policy Agreement: This is an agreement between 11 (of the then 12) Member States to implement the 1989 Social Charter. The UK ‘opted out’ of this. The controversial point here is that this is an agreement of only 11 of the 12 Member States — Curtin argues that the “Protocol authorises the ‘group of 11’ to adopt intergovernmental acts amongst themselves (albeit within the framework of the ‘lent’ Community institutions) … What the Protocol does not explicitly do is to confer such acts with the status of Community law. Indeed, the ‘common accord’ of the 12 Member States was precisely that they were not amending the Treaty.”
Conclusion: “The result of the Maastricht summit is an umbrella Union threatening to lead to constitutional chaos; the potential victims are the cohesiveness and the unity and the concommitant power of a legal system painstakingly constructed over the course of some 30 odd years.” 5 The general jurisdiction of the CJEU is specifically excluded with regard to the CFSP and the JHA.
“It must be said, at the heart of all this chaos and fragmentation, the unique sui generis nature of the European Community, its true world- historical significance, is being destroyed. The whole future and credibility of the Communities as a cohesive legal unit which confers rights on individuals and which enters into their national legal systems as an integral part of those systems, is at stake.”
Table showing the pillar structure of the EU:
Mancini: The Making of a Constitution for Europe: Central argument: “If one were asked to synthetise the direction in which the case-law produced in Luxembourg has moved since 1957, one would have to say that it coincides with the making of a constitution for Europe.” “In other words, the Court has sought to "constitutionalise" the Treaty, that is to fashion a constitutional framework for a federal-type structure in Europe.” In supporting this argument, Mancici argues: Supremacy, direct effect, and pre-emption: The case law evidences this drive for constitutionalism. For example in Costa and Van Gend en Loos the court recognised Community pre-eminence and the direct effect of legislation. He notes that, “supremacy and direct effect are usually regarded as two of the three principal doctrines encapsulating the judicial constitutionalisation of the Treaty. The third notion is preemption.” He illustrates this later notion by pointing to the following: under the common agricultural policy the Community has adopted for most products a Community-wide marketing system; the Court has taken the view that the very existence of such a system precludes Member States from legislating within the field covered by it.
European citizenship: Further, he notes that “the Court has of course been aware that certain progressive forces are trying to give rise to a form, albeit still imperfect, of European citizenship and recently, seizing the opportunity offered, it legitimised their efforts with one of its shrewdest judgments.” (see Cowan v. Tresor Public). Reading an unwritten bill of rights into community law: Reading an unwritten bill of rights into Community law is indeed the most striking contribution the Court has made to the development of a constitution for Europe.
Mancini and Keeling: Democracy and the European Court of Justice
Lack of democracy: they argue that the Community was never intended to be a democratic organisation. That is proved above all by the preamble and the first part of the Treaty of Rome in which the word ‘democracy’ is not used at all and ‘liberty’ is spoken of, like ‘peace,’ as a value to be defended. Indeed, the Assembly, composed of members chosen by the national Parliaments, was involved in the exercise of legislative power solely as the addressee of information and as a consultative organ. The power to legislate, though admittedly only on the basis of proposals submitted by the Commission, belonged to the Council of Ministers, an institution composed paradoxically of the leading members of the national executives. They suggest two reasons for this lack of democracy: o First, the Community began life as an international organisation founded on a Treaty between sovereign States. Such organisations do not normally provide for much direct democracy in their decision-making apparatus. o Second, although from the beginning the Community contained supranational elements and provided for some pooling of sovereignty, the Member States were anxious to circumscribe the surrender of national sovereignty within clearly defined limits. Gradual democratisation of the Community since 1957: The Community is no longer an organism that pursues economic and social objectives with institutional mechanisms that are indifferent to the requirements of democracy; instead it has at last been infected with the democratic traditions of the Member States. Although the democratic deficit still exists, and will continue to do so even after the entry into force of the Maastricht Treaty, there is no doubt that it has been reduced considerably since the foundation of the Community. [see, for example, the now increased role for the European Parliament.]
CASES CONCERNING THE NATURE / LEGAL ORDER OF THE EU Case 26/62 Van Gend en Loos v. Nederlandse Administratie der Belastingen [1963] ECR 1 NB: the focus in this case is on the direct effect of Community law, but the court also notes that the Community is a new legal order, under which the states have limited sovereign rights in order to access Community benefits. Facts: a company imported a chemical from Germany into the Netherlands, subject to what they thought was an increased customs charge. At the time, increases in customs charges
were banned by the EEC Treaty (now Art. 30 TFEU) — the charges also violated the EC’s position on the free movement of goods. Van Gend en Loos brings an action in a national court (just a customs and exercise tribunal). The tribunal refers the issue to the CJEU on the question of whether Van Gend en Loos can rely directly on the EEC Treaty. CJEU: found that Van Gend en Loos could rely on the Treaty. The Treaty in principle is capable of having draw down effect — therefore, individuals can enforce rights drawn down from EU law. The article in question (now Art. 30 TFEU) was one of the articles capable of direct effect. States’ arguments: Netherlands, Germany, and Belgium argue that the EEC treaty is a standard international treaty, subject to state law and, therefore, that it doesn’t trickle down such that it can be applied by individuals within member states. This argument is rejected. Court’s judgment (NB: Romer dissents). o On direct effect and sovereignty: The treaty is more than just an agreement creating mutual obligations between the member states — it constitutes a “new legal order of international law.” o Full quote: “The Community constituted a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals. Independently of the legislation of Member States, Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. These rights arise not only where they are expressly granted by the Treaty, but also by reason of obligations which the Treaty imposes in a clearly defined way upon individuals as well as upon the Member States and upon the institutions of the Community.” SR: This is significant, it means that every individual litigating will be able to bypass recalcitrant member state behaviour regarding specific provisions and go straight to domestic courts to draw down provisions from European legislation to get around the national measure. Opinion 1/91 EEA Agreement [1991] ECR 6079 Facts and opinion: (from Craig): the proposed conferral of jurisdiction upon a new EEA Court composed of three judges from the CJEU and three from EFTA states was held to be incompatible with EU law. As was the fact that the agreement would introduce a large body of legal rules which would be juxtaposed to a corpus of identically worded EU rules, with all the problems of interpretation and consistency that would follow. This was said to conflict with what was then Article 220 EC (now Art. 19 TEU) which sets out the basic task and role of the CJEU by providing that it “shall ensure that in the interpretation and application of the Treaties the law is observed.” It was also said to conflict with the very foundations of the EU. For present purposes (on the CJEU’s view of the EU): In this context, the CJEU said the following:
