EU Governance Notes - The professor is Radu Carp. During the courses, he simply dictates, so it is PDF

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EU Governance: Theories and Practices Notes Week 2 The EU law is part of the public law. The distinction between EU law and public/international law is given by the treaties/every piece of legislation regarding EU, a part of the legal order of the member states. International laws are part of the in...

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EU Governance: Theories and Practices Notes

Week 2 The EU law is part of the public law. The distinction between EU law and public/international law is given by the treaties/every piece of legislation regarding EU, a part of the legal order of the member states. International laws are part of the internal legislation only if they are ratified. In the case of the EU law, the simple fact of adopting the legislation is the only prerequisite. International and public laws regard obligations of the state and not the natural persons. Natural persons are challenge to EU law. If wish to challenge EU in an internal court, you cannot do it without the ratification. EU law is close to public international law in the sense that it creates a supernational law but at the same time it is closer to internal law. EU law is the middle way between public international law and internal law, but is closer to internal law. EU law is a national law common to all the member states.

The features of EU law: 1. The main feature is that of immediate applicability. As soon as they are adopted, they are a part of internal law. One of the first cases refers to this nature of EU law. Costa vs ENEL -> according to one paragraph of this decision, that member states have limited sovereign rights and have created norms that apply to their own citizens and the fact that EC (European Community) law is part of the legal order that applies to the territory of each member state.

EU law is applicable once it is published in the Official Journal of EU law.

2. Direct applicability: it is the direct effect – rights and obligations are created as the laws are adopted. Example: in the international law, only states have rights and obligations. These rights and obligations may be opposed to governments and to the whole system of justice in the member states. There are 2 types of direct applicability: -

Vertical applicability: refers to the relationship between citizens and EU institutions Horizontal applicability: two persons that use EU law in a case of international court 1

Van Gendelos (1962) – citizens may invoke the obligations of the member states before national legislations. The court said that there is a specific nature of EU legal order. There are also exception to this principle: The direct effect may be affected by the European Court of Justice. The Council may act in such cases according to the proposal of the Commission. The Commission has the right to challenging the court, the abstention of the council. We do not speak about a direct effect because the law is applicable by the decisional. The directives are a part of the EU legal order and may be part of the EU law only if the national piece of legislation is adopted. This is a false exception of the direct applicability. Even if the directive is not already part of the national law, citizens may invoke the direct effect of a directive. They may invoke the lack of transposition, the may invoke the bad transposition. Everything could be challenged in a court. That is why we are talking about a false abstention. Direct applicability: there are requirements for a directive to have direct effect. We may say that all the norms have direct applicability and are part of the treaties, regulations. In the case of directives, we do have some requirements for direct effect. Not automatically all the directives have direct effect. The content has to be unconditional and precise and it may only be challenge in a court only for a bad application into the national legal order. There is a number of definite exercises to decide whether or not a directive has a direct effect. Another principle of EU law: the supremacy of EU law. It means that by national norms, you cannot change or abrogate EU law. EU law may change internal law – it may declare certain norms as inapplicable. EU also helps the national judges make a decision. Supremacy is considered the classical principle of the EU law. Does supremacy also apply to constitutions or not? (The classical answer is that the constitution is a barrier to supremacy -> supremacy ends when the constitution comes out).

Sometimes the EU law has been rejected in favor of the national constitution. The courts have had a hard time deciding who has the competence. Ex: the Italian constitutional court declared that a law that was adopted after The Treaty of Rome which is the contrary to this treaty may be applied. The European Court ad reversed this decision and pointed out that it cannot be applied. Supremacy was considered an essential condition of the existence of EU law. 2

Competence: We do have exclusive competences that are transferred to EU institutions – competences that cannot return to member states, such as common commercial policies, conservation of resources (related to environment). Member states do not have any rights of legislation in this matter – they have the obligation to apply the norms that are a part of the EU law. There are also shared competences between EU institutions and national states: in certain cases we do need the help of the principle of subsidiarity. We do have national competences such as the fiscal policy. Interesting question: Is the new fiscal treaty a challenge to the fact that fiscal matters are considered to be outside the competences. (professor’s opinion: it is a challenge – fiscal policy is not just to decide the limits of the budget. It is also to decide about the nature of the taxes, the exact amount of taxes and so on. It is mandatory to put all the elements of a national fiscal policy into the EU law. ). Fiscal policy remains in some respect outside the field of shared competences.

There are also other kinds of interventions of EU, called reserved areas. For example culture is a matter of national policy, but at the same time we do have a kind of finance for EU programs dedicated to culture.

When we are talking about EU law, we are talking about primary and secondary resources. The primary resources are the treaties (the first one, the EU treaty was signed in Rome in 1957. Some treaties had changed the content of the treaties before. After 1990 there was a revolution in the area of treaties, large dynamics of the change in 20 years having been issued more treaties than in the past 45 years – Moscow, Amsterdam, Paris, Lisbon. Treaties also refer to protocols and declarations of the member states). Also, there are the accession treaties: every time a state is part of the EU, an accession treaty is signed. Romania had signed an accession treaty along with Bulgaria. Other parts of legislation are considered as primary resources: the system of election in the European Parliament. This has the same power as the treaties. We also have the recent fiscal treaty. Secondary resources are general principles that are applied in member states and also the European convention of human rights. Until recently we had an interesting discussion if the EU should be a part of the convention of human rights. After the 3

Lisbon Treaty, an agreement was signed and EU could be member of the European Court of Human Rights. Even if the European Union has its own system of Human Rights, it is applicable. Until the Treaty of Lisbon, there was a treaty that stated that European Union may be a part of the system of Human Rights.

International agreements signed by the European Union: As a supranational entity, the EU may sign international public law agreements. These are a part of the EU law only if certain rights and obligations are created for the citizens of EU.

There is the case in which the application of EU law, called Bukalfa – a German woman who married a Nigerian man at the embassy and asked for certain rights. The problem was which legislation applied to this woman. The European Court of Justice issued a statement saying that the Vienna Convention applies to a EU citizen as long as it creates certain rights and obligations. Even if the Treaty of Rome and the current treaties define the territory of the European Union as the total sum of the territory of member states and does not speak a word about embassies and consulates. In this case, the European Court of justice said that certain international law agreements may create problems if they create rights and obligations.

The last category is given by Internal regulations. The constitutional treaty wished to change the current situation, saying that regulations are laws and directives are framework laws: a better classification. Even this language was considered to be more revolutionary, introducing the legal law. The intent of the Treaty of Rome was to change the previous regulations. It was considered a step towards the federal law. Regulations are directly applicable and have a superior force in the internal laws. The Regulation is mandatory is different from the treaty. The application of a regulation is for all the member states. Even if we do have regulations that are given the consideration of a single state, they are applicable in the whole territory of the EU. It is even forbidden to transform the content of a regulation into a law. You cannot even translate the regulation and publish it in the official journal of the member state.

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The directive need an implementation, an application. They are regarded as framework laws. There are requirements for the directives in order for them to have direct effect. They may have unconditional applicability. There are some paradoxes which are directed to the directives. A citizen (natural person) may challenge in the court the lack of transposition and implementation in the law. Even if the directive is not part of that law, citizens may invoke parts of the directive (which is a paradox because you can address in the court and invoke in your favor norms that are already enforced). The decision is an individual act that addresses situations that is individual as a whole and has direct applicability. There are advisory opinions and we do have what we call “no name acts” – we do have communication from the commission through this widespread recent years. A communication does not include mandatory norms, but is only an assessment of a certain situation. The European Court of justice may say that a certain act does have legal effects. Sometimes it is more important the content of a communication than the directive itself. Directives are directed because of a communication. These EU laws do not only talk about legal acts, but also about certain policies and intentions that may have a direct effect in the future. There is a specific reference in the treaties of the EU, defined by the Treaty of Lisbon. In article 6 it is stated that fundamental rights as they are guaranteed by the European Convention and as they are presented, are principles of the EU law. The Union Respect of quality states and the national identity and the essential function of the state, the territorial integrity, the maintaining of public order and the national security – the limits of the EU intervention. EU can intervene in important functions of the state. Some may read this article as an act against the national constitutions. In fact, this article refers only to the exclusive competence in certain areas and it also says what they limits if the EU intervention are. There is a reference to common constitutional conditions. Knowing the principles determines whether or not it is right to intervene. The subsidiarity is an intervention to certain federal states. The question is: Could you have a non-federal state apply the principle of subsidiarity? In fact, the principle of subsidiarity is part of the EU law due to its specific experience of certain member states. It was the idea of Jacques Delore who was in favor of federalism, who asked the famous French politician Francois Del Sol about how subsidiarity is applied in Germany. In that report, the author said that subsidiarity as it is applied in Germany could help with the reintegration of Germany. 5

Subsidiarity was a principle since 1947, but only related to environment. From the very beginning, Even in the German constitution, the principle of subsidiarity is not mentioned. However, subsidiarity is a part of the German principles. The areas that do not fall within certain competences, the community shall take action in accordance to the principle of subsidiarity only in so far as ………… And therefore by reason of effects of proposed actions can be better achieved by a community. The action of the union is limited only in and insofar the objectives of the union can be achieved. The principle of subsidiarity is a filter between the competence of the union and the possibility of exercising that competence. The principle was a reaction to a degree of dissatisfaction by the way in which the Union was making decisions. There was a feeling that member states may be unaware of the union actions. Subsidiarity is a political principle that guides the whole EU legal order and the whole political regime of the EU. Subsidiarity had always been a part of the EU legal order.

When may subsidiarity be applied? The first requirement is that the issue at stake needs to have national aspects. We are not talking about internal policy matters, but about issues of transnational aspects. Actions by member states would damage the interest of the member states. Action at the EU level would produce clear benefits. Subsidiarity does not authorize member states to avoid obligations that are derived from the EU law. You have to decide the means of applying the directive and cannot avoid a law application. The subsidiarity applies in areas that do not fall within exclusive EU competence. Subsidiarity is a dynamic concept which allows options to be extended in certain circumstances that require it.

Another principle is applied: The principle of proportionality. From the very beginning the EU institutions were also looking at subsidiarity measures. There was no compete measure or may to examine subsidiarity. The Lisbon treaty is a great step forward because it establishes a new way to control the use of subsidiarity. Even if the procedure is easy to understand and even the EU Parliament requires to have such a prerogative, the results are not according to the intentions of freedom.

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Judicial review of subsidiarity is an important part: The courts may say that a certain act is not in accordance with subsidiarity and may withdraw/unify an act that is not according to subsidiarity. National courts may say also that subsidiarity has been neglected. The European Court of justice may use subsidiarity as a way of interpretation. The national parliaments are involved into checking the subsidiarity matters. The subsidiarity is a concrete check and balance for the European Commission. The legislation may be renewed according to subsidiarity principles.

The principle of balance assesses the priority of an exercise of power. An exercise of power is considered lawful only if it is appropriate to retain the result. It decides whether or not a measure is contrary to the laws. The objective of an action conflicts with other union objectives – it may strike a balance and in 99% of the cases it is to be decided a balance between the objectives. There was a very long dispute inside the Commission about the taxes – the objective to increase the guarantees of the movement of goods which is essential for a free market. On the other hand there is the environment issue. The court of justice did not decide this issue and there was a dispute between the leftist and liberal politicians. You have to judge this action according to proportionality principle: an issue is alright because it is proportional to do anything. It is proportional to apply the first principle of freedom of goods, and not the environment. The requirements of proportionality: the action is appropriate when it is capable of attaining the objective. In one cause, the court answered that some protective measures were inappropriate. The court does not replace the assessment of the authority – the national authority was wrong so another assessment had to be done. An action has to be indispensable. In cannot be replaced by some alternative form of faction. It had to be the single action that is legitimate. The protocol next to the Lisbon Treaty also refers to proportionality, but the competences of national parliaments are not as large as the competences regarding subsidiarity. It is protocol number 2 regarding the subsidiarity of proportionality. Another principle is the principle of cooperation and good faith. Member states are required to take all the appropriate measures to ensure fulfillment of the applications rising out of this treaty or resulting from actions taken by the institutions of the union. 7

At the same time, member measures could abstain from rejecting the treaty. This is a general principle that applies to any part of the treaty. Cooperation and good faith is only a matter of principle and is not a norm. You cannot sanction a member state because it does not respect the principle of cooperation and good faith. It is an expression of solidarity within member states. It is important because in man federal systems we do have federal good faith, a clause saying that the states must cooperate according to good faith. In Germany there is a clause stating that states should cooperate in good faith. By good faith (good cooperation), the European Union does have another feature that makes the union closer to a federal state. As a political regime, the European Union does have its own definition. In accordance to this principle, national courts may secure the legal protection with citizens derived from the direct effect. This principle obliges also all national authorities to remedy any consequences of an infringement of EU legal order. For example, an authority that delivered a decision and this decision is considered to be based on a wrong interpretation, this authority has to change its initial decision. There is an obligation for all national authorities to change their mind after the infringement is stated. The institutions of EU are in duty to collaborate with any national institutions and also the judicial authorities. We have a measure according to which we can ask the European Court of Justice -> a complete result of the cooperation and good faith. Equal treatment is the simplest treatment – the way in every legislation and order we have it mentioned. It requires persons in the same situation to be treated in the say way. This is part of the chart of the fundamental rights and the part of the treaties. The Court of Justice interprets this case in a very important way – Ruck Duscher. The prohibition of discrimination is a specific enuntation of the German principle of equality and states that in similar situations should not be treated equally unless differentiation is justified.

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There is a prohibition in matters of nationality, but if a member state put a condition that someone had to hold a residence permit -> it is an objective if justified. If a certain authority hires people and uses language as a criteria, this is justified. Another example that is objective and justified is a certain directive stating that employers may use, in the area of religion, discrimination between men and women. If woman cannot be priests, the equal treatment is not broken, as there is an internal regulation for it.

Discrimination is direct when a measure employs a prohibited criteria: nationality, religion, gender.

Indirect discrimination creates the same effect, but has different means behind. Reverse discrimination – a member state may adopt measures that treat members states different from others. Positive discrimination is compatible with the EU legal order. In this case, discrimination has to be balanced with proportionality. In all the cases, a principle collides with another principle. It is difficult to assess which principle you have to apply in practice.

Week 3 The relationship between the EU law and the constitutions