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The EU treaties, institutions and decisionmaking process

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Title: The EU treaties, institutions and decisionmaking process


1
The EU treaties, institutions and decision-making
process
  • International Constitutional law and democracy
  • Lecture 18.10.07
  • Inger-Johanne Sand

2
  • The challenges of the new inter-, supra- and
    transnational law
  • The democratic and national constitutional
    regimes have for their legitimacy been based on
    the legitimacy of human rights and democratic
    elections and procedures
  • - The legislative authority is elected
    democratically, based on universal and equal
    voting rights for all citizens.
  • - The legislature works by majority decisions
    after having been prepared by the executive and
    having been made publicly known (transparency).
  • - The executive is at all times accountable to
    the democratic parliament.
  • International decision-making is enacted by the
    participating states, often by procedures which
    are more intransparent and without the direct
    democratic procedures or executive
    accountability.
  • The present forms of national democratic
    procedures are however not sufficient if we take
    the trans-boundary nature of the problems into
    considerations.

3
  • Division of powers in nation-states
  • - constitutionally based,
  • - legislative competences, - democratically
    elected, - and democratically accountable,
  • - executive competences, - accountable to the
    parliament,
  • - judicial courts, - autonomous, rule-of-law,

4
  • Supranational treaties
  • powers given to the constitutional authorities or
    parts of them are transferred on to an
    international organisation, so that they can
    employ them,
  • legislative, judicial, executive, treatymaking
    so that decisions will have direct effect for the
    citizens of the nation-states involved,

5
The EU treaties and institutions
  • European Council - heads
    of state,

  • constitutional
  • Council of Ministers -
    government ministers

  • legislative / political
  • (COREPER member-state permanent
    representations,)
  • European Commission - 27 commiss. app. by
    memberst.govt.
  • - 26
    directorates-general,
  • -
    applying EU treaties, initiat.legislation
  • European Parliament - 732 MEPs, direct
    elections,

  • - legislative, budgets, control,
  • European Court of Justice 27 judges, app.
    memb.st.
  • -
    autonomous court, applying EU treaties

6
  • European Council - member states and
    European

  • constitutional
  • Council of Ministers - member states and
    European
  • government
    ministers

  • legislative, political,
  • COREPER member-state permanent representations,
    - admin.,
  • European Commission - European ,
  • -
    27 commiss. app. by memberst.govt.
  • -
    executive, - legislation initiative
  • -
    decision-making,
  • European Parliament - European, member states
  • -
    732 MEPs, direct elections,
  • -
    legislation, - budgets,
  • European Court of Justice - European
  • -
    judicial,

7
  • The constitutionality of the EU
  • - direct effect of regulations, directives and
    treaties,
  • - not only the governments, but also the peoples,
  • - supranationality,
  • - comprehensive legislative competences,
  • - comprehensive administrative apparatus/
    powerful
  • Commission with comprehensive adm., execut
    powers,
  • - admin and judicial decisions sanctionable in
    member st.
  • - judicial review of directives in relation to
    treaties,
  • vertically integrated politico-legal systems,
  • judicial review
  • no legislative/constitutional kompetenz-kompetenz

8
  • Many new questions arise with the supranational
    treaties which did not arise with the
    international
  • - purpose-oriented interpretation,
  • - implied powers,
  • - proportionality,
  • - human rights,
  • When does a supranational treaty also become a
    constitutional treaty
  • - several types of power are transferred,
    building on each other
  • - legislative, judicial (sanctionable), and
    executive/preparatory,
  • - direct effect on citizens,
  • - to create a vertically integrated legal order
    of its own,

9
  • What have the vital changes been?
  • - the starting point the Rome treaty,
  • - not only the states, also the peoples,
  • - the European Court of Justice,
  • - the cases van Gend en Loos, - Costa Enel,
  • - direct effect, - supremacy, - judicial
    review,
  • - the acquis communautaire,
  • 1986 the Single European Act,
  • - qualified majority, - the internal market,
  • 1992 Maastricht - extended competences,
  • - the Euro,
  • Lisbon - social coherence
  • Nice extended competences,

10
  • Theories
  • Intergovernmentalism - the member states are
    still the main actors,
  • Neo-functionalism - the doctrine of direct
    effect, the internal market and the practice of
    the Commission and the Court, etc., have created
    a particular dynamic, with spill-over effects,
  • Constitutionalism vertical integration
  • - strong and weak versions,
  • Federations confederations or sui generis?

11
  • The role of the Commission
  • - monopoly in preparing and taking initiatives
    for legislation, - committees,
  • The role of the Council / Parliament
  • - legislative and other decision-making,
  • The role of the Court
  • - judges are appointed by member-states, but the
    Court is fully autonomous,
  • - legal basis - the EU treaties,
  • - ensuring EU law conformity in the EU and in the
    member states,
  • - judicial review, - dirctives / treaties,

12
Legislative decision-making process in the EU
  • The Commission prepares,
  • Expert committees,
  • Committees with member state bureaucrats
    elaborate and evaluate,
  • (national processes of discussion, evaluation)
  • Commission delivers proposal to Council /
    Parliament,
  • COREPER (member state permanent representatives)
  • Council sub-committees,
  • Council discussion and decision
  • Parliament discussion and decision,
  • If not in agreement - co-decision procedure and
    committee with Council and Parliament, - final
    decision,
  • Comitology committees - memb.state govt. repr.
    meet to discuss coordination of implementation,
    -voluntary, under Commission,

13
  • The competence of the Court
  • art.230 flw. direct actions
  • - cases by EU institutions against member states,
    (for non-compliance), - or by member states
    against the EU,
  • - cases by EU citizens against EU institutions or
    member states to secure rights by EU legislation,
  • - cases by corporations in the EU against EU
    institutions or member states concerning EU law,
  • Art.177 / 234 - preliminary rulings,
  • - national courts must consult ECJ concerning the
    understanding of the EU treaties, legislation,

14
  • Organization
  • - 25 judges, - 6 yrs., - European,
  • - Palais de Justice, Luxembourg,
  • Court of First instance, (less complicated
    cases)
  • The Court chambers,
  • 8 general-advocates,
  • - French, English,

15
The Court and the national institutions
  • - the relative position of the Court in the EU,
  • - the Courts contribution to the aquis,
  • - the Court and the national courts,
  • - art.234,
  • - the role of law in the EU,
  • - the Court and the national executive and
    legislative branches,
  • - the role of law in the EU,
  • - the democratic problem of the Courts
    position?

16
Constitutional characteristics of the EU
  • - supranational and international organization,
  • - comprehensive legislative competences, but
    enumerated and not general,
  • - vertically integrated treaties and
    institutions,
  • - lack of direct democratic accountability, - for
    both Council and Commission,
  • - the EU Commission as an independent and
    powerfull executive,
  • - legislative initiative Commission,
  • - the role of committees,
  • - independent international court with judicial
    review,

17
Vital doctrines by the Court
  • - direct effect,
  • - supremacy,
  • - human rights,
  • - implied powers,
  • - not only discrimination, but also obstacles to
    trade,
  • - etc.,

18
Some vital cases in the history of the Court
parts of the aquis communautaire
  • - van Gend en Loos, 26/62
  • - Costa Enel, 6/64,
  • - Statistical Levy, 24/68
  • - Dassonville, 8/74,
  • - Cassis de Dijon, 120/78
  • - Torfaen, 145/88,
  • - Keck, 267 and 268/91,

19
  • EU-domstolen sag 26/62 Van Gend en Loos -
    direct effect
  • - more than a treaty merely creating mutual
    obligations among states.,
  • - the preamble of the treaty mentioning not only
    governments, but also the peoples of Europe.
  • - The European Economic Community constitutes a
    new legal order of international law for the
    benefits of the states..and the subjects of
    which comprise not only Member States, but also
    their nationals
  • not only imposing obligations on individuals
    but is also intended to confer upon them
    rights..

20
Costa Enel, 6/64 supremacy
  • unlike ordinary international treaties, the EEC
    treaty has created its own legal system. This
    became an integral part of the legal systems of
    the Member States.
  • The Member States have permanently limited their
    sovereign rights..
  • The law stemming from the Treaty.could notbe
    overridden by domestic legal provisions..

21
The free of movement of goods etc.
  • EC-treaty
  • Art.28
  • Quantitative restrictions on imports and all
    measures with equivalent effect shall be
    forbidden among the member states.
  • Art.30
  • The regulations of art.28 and 29 shall not be of
    hindrance to restrictons on import, eksport or
    transitt based on the consideration of public
    morality, the protection of human, animal and
    plant life and health, national treasures of
    artistic, historical or archeological value, or
    the industrial or commercial legal protection.

22
The freedom of movement
  • The Statistical Levy case, Commission vs. Italy,
    24/68,
  • - a small charge levied upon imported and
    exported goods, violating EEC art.9, 12, 13, 16,
  • - the charges were small, but they violated a
    general ban on charges with equivalent effect of
    customs,
  • - this is the first decision with the expansive
    interpretation of equivalent effects,
  • Dassonville, Procureur du Roi v Dassonville,
    8/74,
  • - a charge of certificates of origin for
    certification of original whisky, Belgian govt
    accepted only British certif.,
  • - hindering cross-border trade, and having an
    equivalent effect to quantitative restrictions, -
    discriminatory,
  • - market regulation, not direct, indirect
    obstacle,

23
  • - in both cases charges or measures having an
    equivalent effect,
  • - but the logic is more obstacle than
    discrimination-based regime,
  • - what is discrimination ?
  • - what are obstacles to trade ?
  • - what are the consequences of the differences?
  • - not merely a regime of fair trade, but a regime
    more designed to remove all unjustified
    obstacles to trade,
  • Why ? - It may be technically difficult to tell
    when a measure is discriminatory, or not, -
    whereas unjustified obstacles may be easier to
    distinguish, - and will include measures which
    are deemed to be de facto protectionist.

24
  • Cassis de Dijon, 120/78,
  • - French alcoholic beverage with a lower
    disallowed in Germany,
  • - this was deemed discriminatory, and a measure
    with the equivalent effect of quantitative
    restrictions on trade, - and with no other
    legitimate purpose,
  • - were the national laws seen as necessary to
    protect human health and consumer interests ?
  • - no, the alcohol in question was weaker than
    similar beverages,
  • - and the alcohol content may be labelled, and a
    ban would thus not be necessary for consumer
    protection,

25
  • Keck, 267-268/91,
  • - a ban on further sale with a loss,
  • - obstacle to trade,
  • - but was deemed to be general for all goods and
    not have specific consequences for imported
    goods,
  • - the Court formuated a more moderate version of
    the obstacle to trade practice,

26
Free movement of services, EC art.49
  • - hospital services, Watts, ECJ C no. 372/04,
  • - EC art.49, and EC regul. No. 1408/71,
  • - the regulation grants an individual right to
    such services in any member state,
  • - when covering of costs is involved, prior
    authorisation of home state may be demanded,
  • - such authorisation may only be denied when this
    can be objectively justified, by general
    interests,
  • - the risk of seriously undermining the
    financial balance of social security system may
    constitute such interest,
  • - such reasons must be based on objective,
    non-discriminatory criteria, which are known in
    advance, - and requirements of proportionality,
  • and applied non-arbitrarily,
  • - and must be dealt with objectively,
    impartially, in reasonable time, and with
    judicial proceedings,

27
The EU and the Member States
  • The Rome treaty, the doctrines of direct effect
    and supremacy,
  • a new international legal order
  • mentioning not only states but also its
    nationals,
  • .not only imposing obligations on individuals
    but also conferring rights upon them.,
  • - a supranational legal order with direct effect
    of EC legislation for the citizens, and supremacy
    of EC/EU law in relation to national law,
  • - EU citizenship,

28
The institutional architecture of the EU
  • European Council - the European and
    semi-constitutional level, - treaty amendments,
  • (European, heads-of-state, member-state
    represent.)
  • European Commission - European, loyalty to the
    EU treaties, - preparing/proposing legislation,
  • (Commissioners controlled by Parliament)
  • Council of Ministers - European and member-state
    loyalty, - legislative and decision-making body,
  • (ministers from memb.state governments,)
  • European Parliament - elected by member state
    citizens directly, - European by loyalty,
  • (co-decision legislature)
  • European Court of Justice - proposed by member
    states, but European in function, - loyalty to
    the Treaties,

29
Member States
  • - primary influence - Council representation
    and vote,
  • - the apparatus of the national governments,
  • - member state representations in Brussels,
  • - COREPER committee of permanent
    representatives,
  • - committes under the Commission / nat.
    represent.,
  • - committees under the Council / national
    represent.,
  • - implementation procedures,
  • Wild card - members of the European
    Parliament, - they work both European and for
    national interests,
  • The change from unanimity to qualified majority
    voting in all internal market areas,
  • - the states lose their power of veto,

30
  • Areas of EC legislative and policy authority
  • - EC art.28 and 30, quantitative restrictions,
    and measures with equivalent effects,
  • - the internal market, free movement,
    competition,
  • - agriculture,
  • - environment, consumer protection,
  • Areas in which authority is shared
  • - employment, energy, environment, social issues,
  • - foreign relations,
  • - regional development,
  • Areas in which balance lies in Member States
  • - broadcasting, citizenship, education, health,

31
The power
  • The Commission, and what it chooses to focus on,
    and prepare,
  • The Council,
  • Patterns of bargaining procedures,
  • Single member states right to veto in some cases,
    or just showing their power in others,
  • The internal market, free movement, competition
  • - art.28 etc. all other regulations must
    comply, or not be in contradiction of,

32
Historically
  • - starting out with more moderate policy
    initiatives and legislation, - 1960-70-ies, - and
    unanimous legislation,
  • - the Single European Act, 1986,
  • - qualified majority voting,
  • - a more ambitious plan for an effective market,
  • - framework directives, - standardization,
  • - harmonizing directives, - much more legislative
    activity in areas of social regulation,

33
  • Incrementalism or radical changes
  • - the EU as exemplary of both,
  • - the normal situation - incremental change,
  • - decisions have been taken since 1986 several
    radical and comprehensive
  • - the Single European Act, (Delors )
  • - Maastricht, (several reforms) (citizenship)
  • - the Euro and the European Bank,
  • - Eastern enlargement,
  • How was such comprehensive change possible in
    such a short time ?
  • The Constitutional Treaty and why this has
    failed, so far?

34
  • Multi-level governance
  • - overlapping, combining, cooperative and
    competing competences,
  • Constitutionalism,
  • - vertically integrated legal system,
  • - judicial kompetenz-kompetenz, but not
    legislative,
  • The proposal for a Constitutional Treaty,
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