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Legal expertise of Lisbon treaty.

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Legal expertise of Lisbon treaty. Prof. Tanel Kerikm e * * * * * * * * * * * * * * * T * Hierarchy of norms Constitution European Union law Laws Govt regulations ... – PowerPoint PPT presentation

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Title: Legal expertise of Lisbon treaty.


1
Legal expertise of Lisbon treaty.
  • Prof. Tanel Kerikmäe

2
Hierarchy of norms
European Union law
International law
Constitution
Constitutional laws
Presidential Decree
Laws
Local Government regulations
Govt regulations
3
EU law influences most of the legal regulation
Private law
Public law
Law of obligationsContract law
Administrative law
Criminal / Penal law
Civil liability
Constitutional law
Bankruptcy law
Banking law
Business law
Labour law
4
EU LEGAL SYSTEM
  • Supranational character of primary and
    secondary legislation, delegation of powers
  • Internal market (four freedoms) as priority
  • Relevance of ECJ jurisprudence
  • Emerging constitutionalism and attempts to create
    citizens Europe

5
Primary Legislation
DA with implementation act of EU
Directly applicable
Original (constitutional) law
Legal doctrines and principles
Communitarized international law (e.g. Customary
law)
Basic Treaty and the amending treaties to it
International treaties signed by EC or MS-s
International agreements between MS-s
Accession treaties
NO DA
Protocols, annexes, declarations
MS acts adopted at Council meeting
6
Secondary Legislation
Directly applicable
Delegated legislation
Decisions of ECJ
Conditionally DA
Legal acts binding entirely
Harmonization measures
Legally not binding
Soft Law recommendations, opinions,
declarations, communications, resolutions,
explanatory letters, academic opinions etc.
Framework directives, directives
Regulation
Decision
7
European Constitution Why and how?
  • continue the work accomplished within the
    framework of the Treaties establishing the EC and
    the TEU, by ensuring the continuity of the
    Community acquis
  • Estonian Government approved 21. oct 2004, and
    forwarded to Riigikogu for ratification, then
    ratified it twice

8
Terminology
  • the words common market shall be replaced by
    internal market the word ecu shall be
    replaced by euro

9
Sergio Dellavalle Constitutionalism Beyond the
Constitution 2009
  • The Lisbon marks the end of the project of a
    European Constitution?
  • EU Basic law has to be considered
    constitutional law
  • The concept of Constitution
  • Competences of public power
  • Safeguard of the rights of the individuals
  • Normative guarantee of the legitimation of public
    power
  • Identity of the political community

10
Laurent Pech The Rule of Law as a Constitutional
Principle of the EU
  • Common principle (Maastricht art 6(1), Preambul
    of Lisbon and Charter
  • Distinctive features of EU (autonomous
    interpretation)
  • Le Verts 1986) Community based on rule of law
  • Judicial activism of the ECJ (creative function)

11
Rule of law
  • Confusing III pillar structure disappearing
  • The Constitution and law adopted by the
    institutions of the Union in exercising
    competences conferred on it shall have primacy
    over the law of the Member States.
  • EU shall have legal personality capacity to
    conclude international agreements and be
    adjudicated

12
Legal ground for divorce
  • MS may decide to withdraw from the Union in
    accordance with its own constitutional
    requirements
  • shall notify the European Council
  • the Union shall negotiate and conclude an
    agreement with that State, setting out the
    arrangements for its withdrawal

13
Categories of competence
  • When the Constitution confers on the Union
  • exclusive competence in a specific area, only
  • the Union may legislate and adopt legally
  • binding acts, (MS only if empowered by the
  • Union)
  • Customs union, competition and common trade
    policy etc
  • NB! May also be realised through an
  • international agreement
  • Other shared (and MS) competence

14
Exclusive competence
  • Article 2 B1. (a)customs union(b) the
    establishing of the competition rules, monetary
    policy for the Member States whose currency is
    the euro the conservation of marine biological
    resources under the common fisheries policy
    common commercial policy

15
Shared competence
  • (a)internal market (b)social policy, for the
    aspects defined in this Treaty (c)economic,
    social and territorial cohesion (d)agriculture
    and fisheries, excluding the conservation of
    marine biological resources (e) environment
    (f)consumer protection (g) transport
    (h)trans-European networks (i) energy (j)area
    of freedom, security and justice (k)common
    safety concerns in public health matters, for the
    aspects defined in this Treaty.

16
Reform of Judicial system
  • The Court of Justice of the European Union shall
    include the Court of Justice, the General Court
    and specialised courts
  • Frame for judicial activism
  • Differentiation of judicial powers in different
    level

17
Support, coordination, supplementing
  • The Union shall have competence to carry out
    actions to support, coordinate or supplement the
    actions of the Member States. The areas of such
    action shall, at European level, be(a)protection
    and improvement of human health (b) industry
    (c) culture (d) tourism(e)education, vocational
    training, youth and sport (f)civil protection
    (g)administrative cooperation..

18
Solidarity
  • (a)(b) prevent the terrorist threat in the
    territory of the Member States protect
    democratic institutions and the civilian
    population from any terrorist attack assist a
    Member State in its territory, at the request of
    its political authorities, in the event of a
    terrorist attackassist a Member State in its
    territory, at the request of its political
    authorities, in the event of a natural or
    man-made disaster.

19
Enhanced cooperation
  • Member States which wish to establish enhanced
    cooperation between themselves in one of the
    areas covered by the Treaties, with the exception
    of fields of exclusive competence and the common
    foreign and security policy, shall address a
    request to the Commission, specifying the scope
    and objectives

20
New legal acts (initial proposal)
  • European laws (ex regulation)
  • European framework laws (ex directive)
  • European decisions (ex decision)
  • European regulation shall be a non-legislative
    act of general application for the implementation
    of legislative acts and of certain provisions of
    the Constitution

21
Legislative process
  • Legislative process is tied with the concrete
    form of legal act as a rule
  • Differentiation of legislative (art I-34) and
    non-legislative (art I-35) acts,
  • Delegated European regulations (art I-36)
    (Commission) and implementation acts (I-37)
    (Member States)

22
Transparency of decision making (art I-50)
  • The European Parliament shall meet in public,
    as shall the Council when considering and voting
    on a draft legislative act.

23
Participatory democracy?
  • Not less than 1000 000 citizens who are
    nationals of a significant number of Member
    States may take the initiative of inviting the
    Commission, within the framework of its powers,
    to submit any appropriate proposal on matters
    where citizens consider that a legal act of the
    Union is required for the purpose of implementing
    the Constitution.

24
Choice of values
  • Remembering Haider case
  • Eugen Schmidberger v Republik Österreich 2004
  • Willingness to grow up recognition of
    superiority of Human Rights

25
Protecting human rights (art I-9)
  • EU catalogue of rights Charter of Fundamental
    Rights constitutes Part II.
  • No isolation from international protection
    The Union shall accede to the ECHR. Such
    accession shall not affect the Union's
    competences as defined in the Constitution.

26
III act of the Constitution
  • The Constitution of the Republic of Estonia
    Amendment Act Passed 14 September 2003 (entered
    into force 14 December 2003).
  • 1. Estonia may belong to the European Union in
    accordance with the fundamental principles of the
    Constitution of the Republic of Estonia.
  • 2. As of Estonias accession to the European
    Union, the Constitution of the Republic of
    Estonia applies taking account of the rights and
    obligations arising from the Accession Treaty.
  • 3. This Act may be amended only by a
    referendum.

27
Whats next?
  • Unusual implementation act, unclear positioning
    in Estonian legal order?
  • Ratifying EU Constitutional Treaty - expanding
    delegation of State powers? Draft law of
    ratification (645 SE I) indicates to
    consolidation, but also to several significant
    changes etc
  • Is there a need to change IIIrd act/change the
    limits of delegation of powers (accession
    treaty)?

28
Homework 2
  • Essey on conflicts between constitution of
    particular MS and EU (constitutional) law
  • 5 pages, 1,5 space, Times New Roman
  • Deadline 1 of March
  • 8 March, conclusions of the esseys and seminar
    by Mitchiru Nagatsu

29
Reading
  • Case law of ECJ
  • European Supreme and Constitutional Courts
  • Analytical articles (see Jean Monnet papers,
    Westlaw etc)
  • http//www.tlulib.ee/files/arts/92/SOTS_1fcdba4377
    32c547bfea3f8c0ea01960.pdf (Tanel Kerikmäe,
    ESTONIA IN THE EUROPEAN LEGAL SYSTEM PROTECTION
    OF THE RULE OF LAW THROUGH CONSTITUTIONAL
    DIALOGUE
  • Kerikmäe, T. Nyman-Metcalf, K. (2010). Karlsruhe
    vs. Lissabon an Overture to a Constitutional
    Dialogue? European Journal of Law Reform, (will
    be published 2011)

30
Thank you!
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