EU LAW Law Trove (OUP)
Marshall Plan - 5 June 1947
- Cash grants to European countries - Conditions:
o Co-operation in the distribution of the aid o Progressive abolishment of trade barriers
A committee for European Economic Co-operation was established
HISTORY OF THE EU 1950 – 2010
Interpretation and understanding the regulations.
After the WWII there was a period of poverty – people demoralized. Not enough food, harsh winters and little money. No state money – for imports. EU countries devastated by the war.
Founders of the EU: - Konrad Adenauer - Winston Churchill - Alcide De Gasperi - Robert Schuman - Jean Monnet
Decided to reconstruct Europe after the war. Co-operated politically. Schuman Declaration
9th May 1950:
Proposed for all countries to get together and co-operate in terms of coal and steel. Decided to pool resources and production and be economically stronger.
Economic dominance of the US
Military dominance of the Soviet Union Possible was with Germany in the future
Six member states : - France - Germany - Luxembourg - Italy - Netherlands - Belgium
Political analysts say the real reason for signing a treaty was to keep an eye on their neighbours – prime reasons for war and so to sign a treaty removes the potential occurrence of a war with neighbour countries.
Reasons for EEC treaty:
- Political reason – reconstruct themselves after the war - Peach, prosperity and solidarity.
Concept of EU Integration
Integration can be considered both as an economical process and as a legal method - An economical process:
o Absence of internal borders, applying to all trade of goods.
o Institution of a Common Customs Tariff applying to goods from third countries o Elaboration of EU policies
- A legal method
o Reorganization of powers and sovereignties
o Conferral of competencies from Member States to the EU institutions Concept of Co-operation
- Political based co-operation between States which representatives meet periodically to adopt political decisions, normally by unanimity
- Individual States’ interests are thus represented
- Soft Law instruments are normally adopted – decisions, positions, declarations Neo-functionalism
- Economic integration will lead to political integration
- Supranational institutions of the EU will create a supranational agenda prevailing over national interests - The supranational political unity will be reinforced by the formation of supranational interest groups
(public and private) TREATIES – ENTRY TO FORCE 1952 Treaty of Paris
ECCS (European Coal and Steel Community) - the pragmatic approach
1958 Treaties of Rome
ECC (European Economic Community) and EURATOM (European Atomic Energy Community) 1987 The Single European Act
1993 Treaty of Maastricht – EU 1999 Treaty of Amsterdam 2003 Treaty of Nice
2009 Treaty of Lisbon
- Politics and economics inextricably linked - 18 April 1951 – Treaty of Paris
o The European Coal and Steel Community (ECSC)
Sent the conditions for the speedy establishment for the growth of nuclear energy. - 25 March 1957 – Treaties of Rome
o The European Economic Community (EEC) and Aim to create a common market.
**EEC treaty is central to the development of the EU o The European Atomic Energy Community (EURATOM) - Primary aim to ensure lasting peace.
Aims of the EEC Treaty
“Determined to lay down the foundations of an ever closer union among the peoples of Europe”
Resolved to ensure the economic ic and social progress of their countries buy common action to eliminate the barriers which divide Europe
…Intending to confirm the solidarity which binds Europe and the overseas countries and desiring to ensure the development of their prosperity, in accordance with the principle of the Charter of the United Nations
Resolved by thus pooling their resources to preserve and strengthen peace and liberty, and calling upon the other peoples of Europe who **********
NOVELTY
Novelty of the system set up in 1951 and 1957 can be assessed from 2 points of view: Institutional novelty: The community method
- Institutions independent from Member states - High Authority
o EEC authority which was given the power to promulgate binding decisions for the 6 member states.
- Different from the traditional model of intergovernmental co-operation
o Up to this point, there was the position that member states couldn’t be bound if they hadn’t given their consent.
- Idea that EU membership carries with it a curtailment of national power to act unilaterally. o (to some degree)
- The European Commission must act in the interest of the Community o Powers are a lot stronger
o Overarching – interests of the community. o Created the ECJ:
- The European Court of Justice (ECJ):
o Interpretation and application of legislation and terms of the treaty o Independent and impartial from member states’ courts.
As membership grew, it was clear that one ECJ wasn’t able to deal with it all – European Court of First Instance created.
- The European Parliament - The Council
The ECJ later tried to define what these new aims were: **Case 26/62 Van Gend en Loos [1963]:
sovereign rights, albeit within limited fields, and the subjects of which compromise not only Member states but also their nationals”
- Forms the basis for the Court’s case law on supremacy, direct effect and State liability. - Qualified majority voting was introduced in 1986 by the Single European Act
- 2/3 of the votes cast in favour of a measure required, as opposed to unanimity - QMV and unanimity coexist: depends on area at stake
- QMV means that a MS (member state) can now be bound by a measure even if it voted against it.
Substantive novelty: The internal market. - Article 3 TEU lays down objectives of EEC:
o Harmonious development of economic activities o To increase stability – reconstruct after the war o Raise the living standards
- Two means to do so:
o The establishment of a common market o Economic policies.
Agreement on how to deal with economical issues. Substantial novelty of a common market.
What is a common market?
“The concept of a common market involves the elimination of all obstacles teht intra-Community trade in order to merge the national markets into a single market bringing about conditions as close as possible to those of a genuine internal market (C-15/81 Shul
Goals of the EEC Treaty (Treaty of Rome 1957): - To simplify trade and economic activities - Increase standard of living
- To boost economies
- Intended benefit: more consumer choice, effective regulation, increased mobility (specialisation, regulations in terms of alcohol and pornography and food safety)
o Abolish obstacles of free movement of goods people services and capital.
Leads to more tolerance and multiculturalism across Europe.
EEC set in motion a harmonization of economic policy. Agreements include regulations and limitations as part of the EEC. Policies were made sure to have consistence of provisions and application of provisions – done by the ECJ.
Criticism of the EEC
- Three Treaties with their own institutions
o Each had their own way of working – not compatible.
- Merger Treaty of 1967 created common institutions and simplified structure – operated over all three treaties
o With this, 6 member states became known as the European Economic Communities. Criticism after 1967 is that those treaties were still too economically based.
Paris Summit of 1972
In the 70s, EEC was too economically focused. Aimed to broaden the focus:
- Need for flanking policies:
o Environmental protection o Labour protection o Consumer protection
Anything that supports free movement. - Substantive reform – SEA 1986
Single European Act 1986
Created a whole range of treaty amendments. - 1986: Single European Act (SEA)
o Aim of institutional changes: Qualified Majority Voting
Increasing role of the European parliament (introduction of the co-operation procedure) Establishment of a Court of First Instance CFI
Formalisation of the European Council
NOTE: European Council is not the Council of Ministers!!! NB: European Council is different to Council of Europe and Council of Ministers.
Substantive Changes: - Attributed competencies
o Environmental Policy o Health and Safety at work
o Definition of the Internal Market in Article 26 TFEU (Formerly 14 EC) European Council merely defines the political direction.
Council of Europe – International body – NOTHING TO DO WITH THIS COURSE. Decision making body : Law Making – Council of Ministers (Council of EU – ‘Council”) 1986 Act formalized the European Council (as mentioned in Treaty of Lisbon).
- 1992: Treaty of the European Union (TEU), also referred to as the Maastricht Treaty - 1997: Amsterdam Treaty
- 2000: Nice Treaty
THE CREATION OF THE EUROPEAN UNION - Maastricht 1992, TEU - Enthusiasm following the adoption of the SEA
- TEU (or Maastrict Treaty) adopted in February 1992; entered into force in November 1993 - Considerable amount of dissatisfaction:
o Complexity o Ambivalence o Fragmentation.
First Pillar: - Community Integration Method
The ‘E’ is dropped – the commitments were far too difficult to achieve under the EEC. European Community:
- Customs union and Single Market - Common Agricultural Policy - Common Fisheries Policy - EU Competition Law
- Economic and monetary union etc
European Coal and Steel Community (ECSC, until 2002) - Coal and Steel Industry
European Atomic Energy Community (EURATOM) - Nuclear power
Second Pillar – Intergovernmental Cooperation Method
The Common Foreign and Security Policy – deals with immigration etc. Foreign Policy:
- Human Rights - Democracy - Foreign Aid Security Policy:
- Common Security and Defence Policy - EU battle groups
- Helsinki Headline Goal – Force Catalogue - Peacekeeping
Third Pillar – Police and Judicial Co-operation in Criminal Matters (PJCC) Internal criminal matters.
- Drug trafficking and weapons smuggling - Terrorism
- Trafficking in human beings - Organized crime
- Bribery and fraud
These pillars made matters more complex and thus three different ways of dealing with things. However it has created the European Union – birthplace of EU.
The First Pillar does not exist any more – disappeared with the Treaty of Lisbon. The TEU creates the EU: a new political entity.
The TEU includes 2 new fields of activity to be pursued by the European Union: the Common Foreign and Security Policy and Justice and Home Affairs
These areas of EU activity are not EC competencies. The TEU does not replace the EC Treaty; it amends it. Complexity:
The TEU was meant to bring everything together – it was part of the EU it just wants regulated together in one treaty.
Arguments in favour of the TEU 1992 structure: - Common Roof
- Common insitutions
o The Council, the Commission and the European Parliament and the Court However this created a lot more work for the ECJ
o The same revision procedure
- These changes were meant to make the EU less complex. Arguments against the structure:
- 2 fundamentally different methods of implementation
o The first pillar is characterised by the Community method
The method established previously and the orginial novelties that were created with the coal and steel treaty.
o The second and third pillars are characterised by the intergovernmental method - No financial autonomy (see later notes)
- EC had legal personality; the EU does not. o Most tricky issue
o The first pillar has legal personality, but the whole EU does not.
o Some critics said that giving legal personality to the EU will compromise national sovereignty – ongoing debate.
o Other said that the EC had legal personality, why can’t there be legal personality for the EU too? Ambivalence:
- Expressly stated, Article 5 required the community o act within the limits of its power:
o Subsidiarity – decisions should be taken as closely as possible to its people in order to curtail the power of the EU.
Where the member state is in a position to act in the power of its people, it should. If not possible, decisions should be made by the EU.
EC can only act where it is empowered to do so
- Introduction of complementary competences (also referred to as supportive competence) - Some important exclusions from EC competence
o Example of wages, right to strike The TEU aimed at more integration:
- Extension of competence:
o Working conditions beyond health and safety at work o Consumer protection
o Public health - Expansion of existing areas:
o Environmental protection - The EEC is renamed the EC - European citizenship
- Extension of qualified majority voting - Co-decision procedure
- At the same time, some signs of caution: Signs of Caution:
- Article 5 EC
- Introduction to the principle of subsidiarity
- Express statement that EC cvan only act where it is empowered to do so - Complementary competencies (supportive competence)
- Some clear exclusions from competence Fragmentation:
Treaty of Maastricht, countries began to not follow the treaty. There were then opt-outs created.
Countries would sign up to the Treaty with the intention of excluding some of the main requirements of the Treaty itself.
- Opt-outs secured in various fields of Community action: o Social Chapter (negotiated by John Major in 1991)
Dealt with social rights/policy.
Argued that the UK had its own social policy and thus didn’t want to be dictated by the EU as to what social rights were.
Later in 1997 the UK agreed to the social rights – temporary opt out) o Third Stage of the EMU
Creation of the Euro – Britain opted out.
o Charter of fundamental rights – Britain later signed up to that in 2005. - Schengen Agreement which took effect in 1995
o Because of these opt outs, the Treaty of Maastricht was considered too flexible, variable etc. - Talks about variable geometry, flexibility, enhanced cooperation…
- Treaty of Maastricht was considered difficult. The Amsterdam Treaty 1997
- Aim of simplification in view of forthcoming enlargements. - Signed in October 1997; entered into force in May 1999 - Renumbering many of the articles – didn’t have great impact.
- The Amsterdam Treaty reflects a more cautious approach, after lessons learned with the TEU which had met with strong opposition.
o All these treaty amendments created a new benefit that new member states could join. o A new member state could only join when a new treaty was created.
- Further extended the scope of qualified majority voting in Council
o Council is 1 of 3 decision making bodies with regards law making. - Progress of European Social Policy
o No UK opt-out any longer on social policy. o Sex equality (Article 141 EC) better protected
And right to equality – non discrimination was expanded and better protected. o Article 13 EC: general non-discrimination clause
o New article Employment rights.
o Treaty of Amsterdam - New Title VIII – incorporation at EU level. - Enhanced Cooperation (Article 11 and Title VII)
Member states became fed up with new treaties, expansion, etc etc. 2 major shortcomings of the Treaty of Amsterdam:
- Hasn’t really dealt with fundamental rights – should they have a bill of rights?
- Rapid enlargement – began with 6 member states but then grew to 27 – more people to consider with regards to amendments, policies and strategies.
o Critics said Amsterdam Treaty didn’t create much response to these issues o Matters outstanding and this treaty wasn’t addressing any issues.
The Treaty of Nice 2001
“The culmination of all confusion”.
Member states who had to have a referendum to agree on new treaty got particularly frustrated. - Signed in February 2001; entered into force in February 2003
- It dealt mostly with reforming the institutions so that the Union could function efficiently after its enlargement to 25 member states
o Reforming the institutions and still with the Greek Temple (3 pillars)
- Extension of qualified majority voting to more areas of Community action, and in particular Article 13(2) on non-discrimination and Article 18(2) on citizenship
- The proclamation of the EU Charter of Fundamental Rights – not (yet!) legally binding but nonetheless influential (10 years later in 2011– Treaty of Lisbon made the Charter of Fundamental Rights legally binding)
o Drawn up in 2000.
- The Nice Treaty is the point where the members of Europe become very fed up. Irish member state – need a referendum for every treaty amendment.
Treaty of Nice was rejected by Ireland, however a second attempt was later accepted. Discussion came about whether the EC should have a constitution.
- Difficult structure, multiplicity of texts
- A Convention brought together representatives of the MS, EP, national parliaments and Commission - Public debate in 2002 and 2003 later 2004.
- In-depth reform of the Union proposed to make it more effective, more transparent, more comprehensible and close to European citizens
10 member states arranged for a referendum but they didn’t go well – decision by those member states was quite definite – they did not want a constitution.
A Constitution for Europe - Part I:
o Principles, objectives and institutional provisions governing the new European Union - Part II:
o European Charter of Fundamental Rights – would become legally binding - Part III:
o Provisions governing the policies and functioning of the Union (including provisions on the internal market, economic and monetary union, the area of freedom, security and justice, the common foreign and security policy (CFSP), and the functioning of the institutions)
- Part IV:
o General and final provisions, including entry into force, the procedure for revising the Constitution and the repeal of earlier Treaties
Constitution was not voted in EC countries by referendum. No Constitution BUT Lisbon Treaty
- To enter into force, the Treaty had to be ratified by all the MS in accordance with their constitutional rules (parliamentary ratification or referendum)
o Ratification problems encountered most notably in France and the Netherlands in May and June 2005
- “Period of reflection” on the future of Europe launched in June 2005
- European Council of June 2007: agreement to convene an IGC to finalise and adopt, not a Constitution, but a reform treaty for the European Union.
o Signature of the treaty of Lisbon on the 13th December 2007 o Ratified in 2009
Having all this debate on the public stage was not helping – observed negatively by the people of Europe. Period of reflection!
The Treaty of Lisbon 2007 (2009)
- Created 2 new treaties to replace previous framework o Wanted transparency etc.
o The TEU and the TFEU (Treaty on the Functioning of the European Union) - Abolition of 3 pillar structure created by Maastricht
o Now just 1 EU
- Process was challenged before the national courts of Czech Republic and Germany o Many court cases to do with Democratic legitimacy.
- Enlargement from 6 to 27 countries
1993 – First enlargement saw the EU coming in after 3 applications.
UK quite involved in founding stage, decided not to join but then made 3 applications – the third was accepted.
The Europe of Six
At the time of its foundation, the Community comprised six countries: Germany, Belgium, France, Italy, Luxembourg and The Netherlands.
The Europe of Nine
In 1973, Denmark, United Kingdom and Ireland accede to the European Communities (EC).
The Europe of Twelve
During the eighties, the European Communities (EC) expanded to include Greece (1981), then Spain and Portugal (1986).
The Europe of Fifteen
In 1995, Austria, Finland and Sweden accede to the EC.
The Europe of Twenty-Seven
On 1 May 2004 the greatest enlargement in the history of the EU took place with the accession of 10 new countries: Cyprus, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Czech Republic, Slovak Republic and Slovenia. In addition to considerably increasing the geographic area and the number of citizens of the Union, this
fifth wave of enlargement illustrates the end of the division of Europe between East and West. On 1 January 2007, Romania and Bulgaria make their entry, thus completing this historic process.
The Europe of Twenty-Eight
On 1 July 2013 Croatia joined as a Member State of the EU
Candidate countries – negotiations have begun for potential member states. They have been promised the prospect of joining. Need to fulfill the conditions first.
Future Enlargement Candidates: Iceland Turkey Serbia Montenegro Etc
Conditions to Join the EU ARTICLE 49 TEU
- Any European State which respects the principles set out in Article 6(1) may apply to become a member of the Union. It shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the assent of the European Parliament, which shall act by an absolute majority of its component members.
- The conditions of admission and the adjustments to the Treaties on which the Union is founded, which such admission entails, shall be the subject of an agreement between the Member States and the applicant State. This agreement shall be submitted for ratification by all the contracting States in accordance with their respective constitutional requirements.
Article 6 (1) TEU
- The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member states.
Copenhagen Criteria (European Council 1993)
- Stable institutions that guarantee democracy, the rule of law, human rights and respect for and protection of minorities;
- A functioning market economy, as well as the ability to cope with the pressure of competition and the market forces at work inside the Union;
- The ability to assume the obligations of membership, in particular adherence to the objectives of political, economic and monetary union.
- The ability to put the EU rules and procedures into effect ( Madrid European Council 1995). Stages
1.Prospect of membership - formal offer
2.The country becomes an official candidate for membership 3.The candidate moves on to formal membership negotiations Negotiations – start
- Council: unanimous decision
- Establishment of a framework or mandate for negotiations with the candidate country - Negotiations under each chapter (policy field) are based on:
o Screening: a detailed examination of each chapter is carried out by the Commission
o Negotiation positions: position adopted by the candidate and common position adopted by the EU about the candidate country’s achievements
Negotiations – conclusion
- Every chapter under negotiation should be individually closed (EU Member States are unanimously satisfied with the progress shown by candidates). If each chapter of negotiation is not closed, another cannot begin.
- Conclusion of an accession treaty: the document that contains terms and conditions od the accession. The accession treaty must be:
- Supported by the Council, the Commission, and the European Parliament - Signed by the candidate country and by EU Member States
- Ratified by the candidate country and by every individual EU Member State, according to their constitutional rules (parliamentary vote, referendum, etc.)
Western Balkans
- Special process: stabilisation and association process - Aims:
o stabilising the countries politically
o Encouraging their transition to a market economy o promoting regional co-operation
o eventual membership of the EU - Tools:
o trade concessions
o economic and financial assistance
o assistance for reconstruction, development and stabilisation o stabilisation and association agreements
Recommended reading
Dedman, M. (2009) The origins & development of the European Union 1945-2008. A history of European Integration. Oxon: Routledge.
For next week: Chalmers D., Davies G., Monti G., European Union Law, second edition, chapters 2 and 3 on EU institutions and law-making; or Craig, de Burca, EU Law, 5th edition, pp.31- 71 on institutions and 121- 156 Legislation and Decision-Making.
The Legal Nature of the EU 1. International Law and the European Union
Is the EU sui generis?
Tendency to classify the EU as sui generis (something that is entirely unique and escapes comparison with other entities).
Problematic:
- Reflects a particular agenda or ‘concept’ of Europe as an autonomous legal and political project - Misleading as it masks the international law origins of the EU and its legal order
- Makes understanding the nature of the EU more difficult as it suggests there is nothing we can compare it to
- Misguided as it refuses to engage with international law and scholarship on its own terms. Must refer to international law in order to understand nature of EU.
Bentham coined the term ‘international law’ to replace expression ‘law of nations’ in referring to the law governing mutual transactions between sovereign states.
Classic international law
International law applies between sovereign States in their mutual relations Classic system emerged during 16-18th century based on key concepts:
- Territorial sovereignty
o States are recognised as supreme political entities exercising authority over a geographical part of the world
- Sovereign equality
o All States are equal in their rights and duties – Independence
o No Sovereign State is subject to the authority of another State
Territorial Sovereignty is the essence of Statehood and the existence of a multitude of legally equal and independent States in the organising principle of the international legal order:
Island of Palmas case (1928), 2 RIAA 829 (PCA) at 838
Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State. The development of the national organisation of States during the last few centuries and as a corollary, the development of international law, have established this principle of the exclusive competence of the State in regard to its own territory in such a way as to make it the point of departure in settling most questions that concern international relations.
International law applies between States and as such must be distinguished from the law applicable within each State (known as the domestic or internal law of each individual State).
Evolution of international law
Dramatic changes in international law:
- Its Scope has extended to cover matters that no longer concern relations between States sstrictly speaking (e.g. human rights)
- New actors have emerged (above all international organisations) meaning that States are no longer the only subjects of the international legal order
- States have increasingly lost their legal and political freedom to manoeuvre
Thus, whereas States are still the principal actors and subject of international law, they have lost their exclusive position and arguably their dominant position in international law.
Implications for the study of the EU Three implications for the study of EU law:
- The evolution of the EU as a corporate entity has taken place (and still does) against background of the changing nature of public international law
- Development of international law is partly the story of the changing nature of the modern territorial State; the development of the EU is a story about the legal position of its Member States.
– International law offers two paradigms for understanding the EU: Is the EU a State and is the EU an international organization
2. Is the European Union a State? What is a State?
A State under public international law is not categorically defined.
There is a set of reasonably well-established criteria used to define a State under The Montevideo Convention (1933) however this is open to difference in interpretation and application:
Article 1, Montevideo Convention (1933):
The state as a person of international law should possess the following qualifications: (a) a permanent population;
(b) a defined territory; (c) government; and
(d) capacity to enter into relations with the other states. Population
- International law does not require a large number of inhabitants o E.g. Monaco; Nauru and Tuvalu
o However exceedingly small entities e.g. Pitcairn (pop. of 45) are unlikely to achieve Statehood. Territory
- States are territorial entities and exist in space; however, international law does not require that all the State’s boundaries are fully settled (e.g. Israel)
- Nevertheless, an entity claiming to be a State must have at least some geographical presence o E.g. Palestine before 1994.
North Sea Continental Shelf Cases (1969) ICJ Rep. 3, at 132:
There is for instance no rule that the land frontiers of a state must be fully delimited and defined, and often in various places and for long periods they are not, as is shown by the case of the entry of Albania into the League of Nations.
Government
- International law requires that an entity claiming to be a State exercises effective authority over its territory and population, but beyond this it does not impose any fixed requirements regarding the structure or nature of government
o E.g. no requirement that government must be democratic.
- There is no specific size of a state regarding population or geographical area. There only needs to have an effective government – the type does not matter.
Independence
- An entity claiming to be a State must not be dependent on any other State but enjoy a degree of actual and formal independence enabling it to act on the international level on its own.
Separate Opinion of Judge Anzillotti, Customs Regime between Germany and Austria, PCIJ Ser A/B, No 41 (1931), at 57:
“The independence of Austria within the meaning of Article 88 is nothing else but the existence of Austria ... as a separate State and not subject to the authority of any other State or group of States. Independence as thus understood is really no more than the normal condition of States according to international law; it may also be described as sovereignty (suprema potestas), or external sovereignty, by which is meant that the State has over it no other authority than that of international law “
Does the EU Satisfy these criteria?
Population:
o Does EU citizenship equate to a population? Can argue no as EU citizenship is secondary to the citizenship of a member state.
o See judgement on Lisbon case for Germany below. But overall, EU does not have a population. Lisbon Case, BVerfG, 2 BvE 2/08, Judgment of 30 June 2009 (German Federal Constitutional Court)
After the ratification of the Treaty of Lisbon, the Federal Republic of Germany will continue to have a state people. The concept of the "citizen of the Union", which has been more strongly elaborated in Union law, is exclusively founded on Treaty law. The citizenship of the Union is solely derived from the will of the Member States and does not constitute a people of the Union, which would be competent to exercise self-determination as a legal entity giving itself a constitution.
[347] In particular, the introduction of the citizenship of the Union does not permit the conclusion that a federal system has been founded. Historical comparisons, for instance with the German foundation of a federal state via the North German Confederation of 1867 ... do not help very much in this context. After the realisation of the principle of the sovereignty of the people in Europe, only the peoples of the Member States can dispose of their respective constituent powers and of the sovereignty of the state. Without the expressly declared will of the peoples, the elected bodies are not competent to create a new subject of legitimisation, or to delegitimise the existing ones, in the constitutional areas of their states.
[348] In this sense, the citizenship of the Union is nothing which culturally or normatively precedes the current treaty law and from which legal effects that shape the constitution could emerge. The citizenship of the Union, which has been incorporated into primary law by past treaty amendments, is a derived status which shall be additional to national citizenship (Article 17.1 sentences 2 and 3 ECT; Article 9 sentence 3 TEU Lisbon). This status is also not altered by the rights connected with the citizenship of the Union even though the Treaty of Lisbon extends these rights. The citizens of the Union are granted a right to participate in the democratic life of the Union (Article 10.3, Article 11.1 TEU Lisbon), which emphasises a necessary structural connection between the civic polity and public authority. Additionally, the exercise of existing rights of the citizens of the Union in the area of protection by the diplomatic or consular authorities and of the documents of legitimization is facilitated (see Article 23.2, Artcile 77.3 TFEU)
Territory
o Any territory ‘given’ to the EU is not owned by law. Title over the territory remains with the neighbour states. The EU holds the authority to extend its influence over such land, however, it does not own it. Ergo, no territory.
Government
o Is a structure. Has to be effective. Such structures do exercise effective powers, but international law relates to more exclusive government. The EU does not fit this as it does not hold complete sovereignty over member states. Looks like its ‘government’ does not fit the necessary criteria. o The institutions of the EU clearly exercise an effective form of governance on the European level,
yet the authority is limited both in its scope and its nature.
o There are limits to its powers, which it shares with its member states. Also, the EU does not hold all the capabilities expected by a state. It is dependent on the member states to function.
o The EU enjoys formal independence of action in a number of key areas, but not in others; moreover, it is factually dependent on the support of its Member States in taking action at the international level.
Refer to Lisbon Case BVerfG Judgment of 30 June 2009. 3. Is the European Union an International Organisation?
What is an international organisation?
There is no authoritative, legally binding definition. They must be distinguished from their Member States on the one hand and from other organisations which are not public or truly international in nature on the other hand. Five features are commonly used to this end:
- Created by international agreement rather than domestic legal instruments: o means they are usually created by states to act on an international level. o Distinguishes intergovernmental organisations from NGOs
- At least one autonomous organ
o Distinguishes them from being a sub-department of the state.
o Must have some power to act independently and means that an international organisation is not simply a collective organ of its member states.
– Public international law must regulate its activities directly
o An international organisation acts directly on the international level – Prescribed field of activity –
o Defined in terms of function rather than territory.
o The state holds sovereignty (can do what it wants) However, international organisations should uphold the duties they were created for.
– Legal personality –
o Must enjoy legal personality under public international law
o Allows them to function with law – creating and interpreting law to move forwards. Applying the criteria to the EU
- Created by international agreement – Yes
o The EU was created through international agreement – it relies on this agreement to exist and function.
- At least one autonomous organ – Yes (many)
o All institutions of the EU are capable of acting independently from the Member States individually, including the European Council, the Council, the Commission, the European Parliament and the Court of Justice.
- Directly governed by international law - Yes
o The ECJ has accepted on several occasions that the EU must comply with applicable rules of international law.
Case C-308/06, Intertanko [2008] ECR I-4057
51. Admittedly, as is clear from settled case-law, the powers of the Community must be exercised in observance of international law, including provisions of international agreements in so far as they codify customary rules of general international law (see, to this effect, Case C-286/90 Poulsen and Diva Navigation [1992] ECR I-6019, paragraphs 9 and 10; Case C-405/92 Mondiet [1993] ECR I6133, paragraphs 13 to 15; and Case C-162/96 Racke [1998] ECR I3655, paragraph 45). - Prescribed field of activity - Yes
o The treaties lay down certain objectives for the EU (Article 3 TEU) and also define what competences it enjoys in order to carry out those objectives (Article 5 TEU).
- International legal personality – Yes
o The Lisbon Treaty now confirms in express terms that the EU enjoys legal personality (Article 47 of the Treaty of the European Union)
does not state whether this is domestic or international. But, is largely accepted that the EU has power to act in both.
The EU fits all the criteria and is therefore an international organisation. 4. Constitutional Perspectives
However, some would argue that the EU is unlike other international organisations because it has special features which make it very different; these features include:
- The wide scope of functions; - The nature of its competences
- The relationship between EU law and domestic law Two responses to this situation are possible:
a) The EU should simply be regarded as the most advances international organisation in existence today b) The EU is more than just an international organisation and it is no longer appropriate or accurate to
describe it as one.
Rather – the EU is something ‘in-between’ an international organisation and a State, combining features of both paradigms.
Alternative concepts to the classification of the EU:
– Supranationalism – The legal order of the EU is above Member States; that EU law is superior to the states and is therefore different (overarching)
o Criticism is that it defines the Union in negative terms – Compound democracy (Fabbrini) –
o The idea that the EU is a compound consisting of the Member States and EU institutions and that decision-makers in the EU are elected either directly or indirectly through democratic processes, with decision-making power being diffused among a plurality of actors within a multiplicity of institutions.
– Multilevel Governance (Pernice)
o Describes EU as a multilevel constitutional structure of a new kind, based upon functioning democratic Member States, complementary to the, and binding tem together in a supranational unit without itself being a State or aiming at statehood.
Others have described the EU as a Federalist Entity; prominently, Robert Schutze has described the EU as a “federation of States” by relying on the American constitutional tradition.
The American federalist tradition
The American federal tradition suggests that the 1787 Constitution created the United States of America as an entity ‘in between’ an international and a national structure:
- The legal order of the US was international in origin
- The legislature of the US represented both individuals and the constituent states
- The powers exercised by the central government were both national (applicable to individuals) as well as international (applicable to the constituent States).
Applying the criteria to the EU
Schütze relies on federalism and argues the same analysis applies to the EU:
- The EU was conceived as an international organisation founded bu an international agreement, but since then its founding treaties have evolved into a ‘Treaty-Constitution’
- The Union’s principal law-making organs represent the European people (European Parliament) and the Member States (council);
- There is a division of powers in Europe between the EU and the Member States along federal lines. Schütze therefore concludes that the EU is best characterised as a federation of States.
Criticism of the federalist view
However the federalist thesis may be questioned from three angles: - Accuracy:
o The federalist argument does not fit all institutions of the EU. Moreover, the extent to which the founding treaties have turned into constitutional documents may be questioned.
- Comparison with the USA
o Schutze’s reliance on the American federal tradition may be of mostly historical interest with limited contemporary relevance.
o He seems to be making a sui generis argument to the extent that the EU is the only ‘federation of States’ currently in existence.
o Internal and external view; the US is a federation of States from the inside but ap-pears as a federal State from the outside – could the EU be described as a federation of States from the internal perspective but then seen as an international organisation from the outside? - Constitutional perspective
o Schütze refers to international law merely from the point of view of the American and European constitutional traditions but overlooks that international law is a separate legal system which is capable of providing its own perspective of the EU.
- Conclusion
No one knows what the EU should be defined as. The EU is still in a state of progression and flux. Consequently, whatever the EU is labelled as now would appear to reflect more upon the view of what it is to become, than its current state.
Basic Reading
Shaw, International Law (6th, 2008), Ch 5 (‘The Subjects of International Law’) [available at https://www.dawsonera.com/readonline/9780511574429/startPage/363].
Grimm, ‘Defending Sovereign Statehood Against Transforming the Union Into a State’ (2009) 5 European Constitutional Law Review 353.
Recommended Reading
Bieber, ‘An Association of Sovereign States’ (2009) 5 European Constitutional Law Review 391.
Lock, ‘Why the European Union is not a State: Some Critical Remarks’ (2009) 5 European Constitutional Law Review 407.
Schütze, ‘On “Federal” Ground: The European Union as an (Inter)national Phenomenon’ (2009) 46 Common Market Law Review 1069.
Everling, ‘The European Union as a Federal Association of States and Citizens’ in von Bogdandy and Bast (eds) Principles of European Constitutional Law (2nd, 2010) 701.
Kirchhof, ‘The European Union of States in von Bogdandy and Bast (eds) Principles of European Constitutional Law (2nd, 2010) 735.
Further Reading
European Law 349.
Fabbrini, ‘Contesting the Lisbon Treaty: Structure and Implications of the Constitutional Divisions Within the European Union’ (2010) 10 European Journal of Law Reform 457.
Mancini, ‘Europe: The Case for Statehood’ (1998) 4 European Law Journal 29.
Weiler, ‘Europe: The Case Against the Case for Statehood’ (1998) 4 European Law Journal 43.
Curtin and Dekker, ‘The European Union from Maastricht to Lisbon: Institutional and Legal Unity out of the Shadows’, in Craig and de Búrca (eds) The Evolution of EU law (2nd, 2011) 155.
Akande, ‘International Organizations’ in Evans (ed) International Law (3rd, 2010) 252.
The Competences of the EU (1) Terminology
It is necessary to distinguish between a number of related but nonetheless separate concepts relevant to the present lecture.
Legal personality:
- Entities regarded as carriers of rights and duties and legal capacities within a particular legal system Legal capacity:
- Denotes the authority or power enjoyed by legal persons to perform legally valid and meaningful acts within the legal system they inhabit (eg conclude contracts, incur liability)
States:
- Are the original and principal subjects of international law; their legal personality and capacities derive from the very structure of the international legal order as a system of rules based on State sovereignty Sovereignty:
- In a legal sense refers to the rights and capacities that are inherent in Statehood International organizations:
- Are secondary subjects of international law created (mostly) by States;
o they enjoy legal personality only if their member States endowed them with legal personality either in express terms or by implication
Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion (1949) ICJ Rep. 174, at 179:
the organisation was intended to exercise and enjoy, and is in fact exercising and enjoying, functions and rights which can only be explained on the basis of the possession of a large measure of international personality and the capacity to operate upon an international plane. It is at present the supreme type of international organisation, and it could not carry out the intentions of its founders if it was devoid of international personality. It must be acknowledged that its members, by entrusting certain functions to it, with the attendant duties and responsibilities, have clothed it with the competence required to enable those functions to be effectively discharged.
Article 47 TEU confers legal personality on the EU in express terms; in the past, it was unclear whether the EU (as opposed to the EC) enjoyed legal personality at all (see Sari)
International organizations only enjoy those legal capacities, often referred to as competences, which their
Member States have conferred upon them, either expressly or by implication, in order to carry out their functions. Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion
(1949) ICJ Rep. 174, at 182–184:
Under international law, the Organization must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication. as being essential to the
performance of its duties. [...]
Having regard to the foregoing considerations, and to the undeniable right of the Organization to demand that its Members shall fulfil the obligations entered into by them in the interest of the good working of the Organization, the Court is of the opinion that, in the case of a breach of these obligations, the Organization has the capacity to claim adequate reparation, and that in assessing this reparation it is authorized to include the damage suffered by the victim or by persons entitled through him.
Competence:
- Refers to the capacities conferred upon an international organization by its member States (the corporate level) or the capacities enjoyed by the organs or institutions of an international organization (the internal division of powers);
- competence is another word for legal capacity Dr Aurel Sari 2013-14 / T1:02 / Competences 2/8
(2) Competence and European integration
The Member States have transferred a broad range of competences onto the EC and EU during the course of European integration, thereby limiting the exercise of their own capacities
This process has been contentious:
a) Member States are concerned about a shift of power to the EU and the creeping expansion of its competences in practice
b) European public opinion is concerned about a lack of oversight and control of ‘Europe’
c) The institutions are ambivalent as they benefit from expanding EU competences but fear a backlash Matters are complicated by the fact that two separate questions have to be asked about EU competence:
1. Does the EU enjoy competence in a particular area?
a. The Member States may empower the EU to act either in express terms or by necessary implication; implied powers doctrine was accepted by the ECJ in Case 8/55, Federation Charbonniere de Belgique v. High Authority [1956] ECR 245;
b. implied powers played a particularly significant role in EC external relations Case 22/70, Commission v Council (ERTA) [1971] ECR 263
15 To determine in a particular case the Community's authority to enter into international agreements, regard must be had to the whole scheme of the Treaty no less than to its substantive provisions.
16 Such authority arises not only from an express conferment by the Treaty ... but may equally flow from other provisions of the Treaty and from measures adopted, within theframework of those provisions, by the Community institutions.
17 In particular, each time the Community, with a view to implementing a common policy envisaged by the Treaty, adopts provisions laying down common rules, whatever form these may take, the Member States no longer have the right, acting individually or even
collectively, to undertake obligations with third countries which affect those rules. 18 As and when such common rules come into being, the Community alone is in a position to assume and carry out contractual obligations towards third countries affecting the whole sphere of application of the Community legal system.
19 With regard to the implementation of the provisions of the Treaty the system of internal Community measures may not therefore be separated from that of external relations. 28 Although it is true that Articles 74 and 75 do not expressly confer on the Community authority to enter into international agreements, nevertheless the bringing into force, on 25 March 1969, of Regulation no 543/69 of the Council on the harmonization of certain social legislation relating to road transport (OJ L 77, p. 49) necessarily vested in the Community power to enter into any agreements with third countries relating to the subject-matter governed by that Regulation.
2. If the EU does enjoy competence, a second question must be asked: what is the nature or type of this competence?
States may confer legal capacities onto international organizations in two main ways:
a. They may confer powers onto the organization whilst at the same time retaining the right to exercise the same powers themselves (delegation of power:
i. the organization enjoys non-exclusive powers)
b. They may confer certain powers onto an international organization whilst at the same time agreeing not to exercise their own powers in that area (transfer of powers: the organization enjoys exclusive powers)
One of the special features of the EU is that the ECJ declared many of its competences to be of an exclusive nature, often justifying this conclusion by relying on the principle of effectiveness
i. Case 22/70, Commission v Council (ERTA) [1971] ECR 263
30 Since the subject-matter of the ERTA falls within the scope of Regulation no 543/69, the Community has been empowered to negotiate and conclude the agreement in question since the entry into force of the said Regulation.
31 These Community powers exclude the possibility of concurrent powers on the part of Member States, since any steps taken outside the framework of the Community institutions would be incompatible with the unity of the common market and the uniform application of Community law. The more precise delimitation of the respective competences of the EU and the Member States was one of the fundamental aims of the reform process launched in 2000; the Lisbon Treaty attempts a more precise delimitation by:
- Underlining the principle of conferral;
- Codifying the division of competences between the Union and the Member States in express terms (Article 2 TFEU);
- Recognizing that the competences of the EU may be reduced (Article 48(2) Dr Aurel Sari 2013-14 / T1:02 / Competences 3/8 TEU);
- Recognising that Member States may regain the right to exercise their competence in areas of shared competence under certain circumstances; (e) limiting the use of the flexibility clause under Article 352 TFEU
3. The Scope of EU Competences
States confer competences onto international organizations so that the latter can discharge their functions; The competences of international organizations, including those of the EU, are therefore limited by their objectives and functions:
- The EU’s objectives have evolved over time and are very broad Article 3 TEU
1. The Union’s aim is to promote peace, its values and the well-being of its peoples
2. The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime.
3. The Union shall establish an internal market. It shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. It shall promote scientific and technological advance. It shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child. It shall promote economic, social and
territorial cohesion, and solidarity among Member States. It shall respect its rich cultural and linguistic diversity, and shall ensure that Europe’s cultural heritage is safeguarded and enhanced.
5. In its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter.
In response to the growing scope of the EU’s objectives and the concern over ‘competence creep’, the Lisbon Treaty now strongly underlines the principle of conferral as the basis for the EU’s powers
Article 5 TEU
(1)aUnder the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.
The notion that the EU’s competences derive from the Member States is emphasized in the Preamble of the TEU By this Treaty, the HIGH CONTRACTING PARTIES establish among themselves a EUROPEAN UNION,
hereinafter called ‘the Union’, on which the Member States confer competences to attain objectives they have in common.
The corresponding notion that powers not conferred upon the EU remain with the Member States is confirmed in Article 4 TEU, which also sets substantive limits to the EU’s authority.
Article 4 TEU
1. In accordance with Article 5, competences not conferred upon the Union in the Treaties remain with the Member States.
2. The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.
To further clarify the division of powers between the EU and the Member States, Article 2 TFEU identifies three types of EU competence:
A. Exclusive: only the Union is empowered to act in the area covered by exclusive competence Article 3 TFEU
4. The Union shall have exclusive competence in the following areas: a. Customs union;
b. The establishing of the competition rules necessary for the functioning of the internal market; c. Monetary policy for the Member States whose currency is the euro; (d) the conservation of marine
biological resources under the common fisheries policy; (e) common commercial policy.
4. The Union shall also have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or in so far as its conclusion may affect common rules or alter their scope.
B. Shared competence: both the EU and the Member States may act when the field is not covered by existing EU legislation; when the EU has acted and covered a particular field, the Member States are prevented from exercising their powers
Article 4 TFEU
2. Shared competence between the Union and the Member States applies in the following principal areas:
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;
ii. Area of freedom, security and justice;
iii. Common safety concerns in public health matters, for the aspects defined in this Treaty. 4. In the areas of research, technological development and space, the Union shall have competence to carry out
activities, in particular to define and implement programmes; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.
4. In the areas of development cooperation and humanitarian aid, the Union shall have competence to carry out activities and conduct a common policy; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.
C. Supporting, coordinating or supplementing competence: the EU may act to support, coordinate and supplement actions of the Member States, but may not enact harmonizing legislation
In the past, the predecessor of Article 352 TFEU [ex Article 235 EC, later ex Article 308 EC] enabled the Council, acting unanimously and on a proposal from the Commission and after consulting the European Parliament, to take measures it considered necessary in order to attain the objectives of the Treaties in a situation where the
Community had no explicit or implied powers to act – this was known as the flexibility clause
Article 352 TFEU was used extensively; this was challenged before the ECJ in successive cases; in Case 45/86, Commission v. Council (General Tariff Preferences) [1987] ECR 1493, the Court underlined that a measure could only be adopted under Article 308 EC if there was no other appropriate provision in the EC Treaty which would provide a legal basis for Community action;
Opinion 2/94, Re the Accession of the Community to the European Convention on Human Rights [1996] ECR I-1759
[27] No Treaty provision confers on the Community institutions any general power to enact rules on human rights or to conclude international conventions in this field. [28] In the absence of express or implied powers for this purpose, it is necessary to
consider whether Article 235 of the Treaty may constitute a legal basis for accession. [29] Article 235 is designed to fill the gap where no specific provisions of the Treaty confer
on the Community institutions express or implied powers to act, if such powers appear none the less to be necessary to enable the Community to carry out its functions with a view to attaining one of the objectives laid down by the Treaty.
[30] That provision, being an integral part of an institutional system based on the principle of conferred powers, cannot serve as a basis for widening the scope of Community powers beyond the general framework created by the provisions of the Treaty as a whole and, in
particular, by those that define the tasks and the activities of the Community. On any view, Article 235 cannot be used as a basis for the adoption of provisions whose effect would, in Dr Aurel Sari 2013-14 / T1:02 / Competences 5/8 substance, be to amend the Treaty without following the procedure which it provides for that purpose.
The Lisbon Treaty reduces the scope of Article 352 TFEU by, amongst other things, limiting it to the objectives listed in Article 3 TEU (except the Common Foreign and Security Policy), requiring the European Parliament’s consent and excluding harmonization measures
4. The Principle of Subsidiarity and Proportionality
The Treaty of Lisbon further seeks to clarify the delimitation of competences between the Union and the Member States by strengthening the principle of subsidiarity and proportionality
Article 5 TEU
3. Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.
The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and proportionality. National Parliaments ensure compliance with the principle of subsidiarity in accordance with the procedure set out in that Protocol.
Subsidiary thus imposes several requirements on EU action: sufficiency (action at EU level must be necessary), benefit (action must bring added value); closeness to the citizen
The principle of subsidiarity applies to all institutions of the EU, including the European Commission, European Parliament and the Council, within their spheres of activity
The principle of subsidiarity has been invoked before the ECJ on a number of occasions, but the Court has not adopted a strict standard of review
Case C-84/94 United Kingdom v Council
46. The applicant further maintains that the Community legislature neither fully considered nor adequately demonstrated whether there were transnational aspects which could not be satisfactorily regulated by national measures, whether such measures would conflict with the requirements of the EC Treaty or significantly damage the interests of Member States or, finally, whether action at Community level would provide clear benefits compared with action at national level. In its submission, Article 118a should be interpreted in the light of the principle of subsidiarity ...
47 In that respect, it should be noted that it is the responsibility of the Council, under Article 118a, to adopt minimum requirements so as to contribute, through harmonization, toachieving the objective of raising the level of health and safety protection of workers which, in terms of Article 118a(1), is primarily the
responsibility of the Member States. Once the Council has found that it is necessary to improve the existing level of protection as regards the health and safety of workers and to harmonize the conditions in this area while maintaining the improvements made, achievement of that objective through the imposition of minimum requirements necessarily presupposes Community-wide action, which otherwise, as in this case, leaves the enactment of the detailed implementing provisions required largely to the Member States. ... 57 As regards the principle of proportionality, the Court has held that, in order to establish whether a provision of Community law complies with that principle, it must be ascertained whether the means which it employs are suitable for the purpose of achieving the desired objective and whether they do not go beyond what is necessary to achieve it (see, in particular, Case C-426/93 Germany v Council [1995] ECR I-3723, paragraph 42).
58 As to judicial review of those conditions, however, the Council must be allowed a wide discretion in an area which, as here, involves the legislature in making social policy choices and requires it to carry out complex assessments. Judicial review of the exercise of that discretion must therefore be limited to examining whether it has been vitiated by manifest error or misuse of powers, or whether the institution concerned has manifestly exceeded the limits of its discretion.
59 So far as concerns the first condition, it is sufficient that, as follows from paragraphs 36 to 39 of this judgment, the measures on the organization of working time which form the subject-matter of the directive, save for that contained in the second sentence of Article 5, contribute directly to the improvement of health and safety protection for workers within the meaning of Article 118a, and cannot therefore be regarded as unsuited to the purpose of achieving the objective pursued.
60 The second condition is also fulfilled. Contrary to the view taken by the applicant, the Council did not commit any manifest error in concluding that the contested measures were necessary to achieve the objective of protecting the health and safety of workers.
Protocol 2 to the Lisbon Treaty on the Application of the Principles of Subsidiarity and Proportionality introduces new procedures which gives national parliaments the opportunity to monitor the proper application of the principle of subsidiarity
The Lisbon Treaty also highlight the role of the principle of proportionality as a limit to the EU’s competences Article 5 TEU
4. Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties.
The institutions of the Union shall apply the principle of proportionality as laid down in the Protocol on the application of the principles of subsidiarity and proportionality
The ECJ has been somewhat stricter in applying the principle of proportionality Case C-310/04 Spain v Council [2006] ECR I-7285
96 The Community legislature has a wide discretion where the common agricultural policy is concerned ... Consequently, judicial review by the Community Court must be limited to verifying that the measure in question is not vitiated by any manifest error or misuse of powers and that the authority concerned has not manifestly exceeded the limits of its discretion (Case C‑189/01 Jippes and Others [2001] ECR I‑5689, paragraph 80 and the case-law cited).
97 As to review of proportionality, it should be recalled that the principle of proportionality, which is one of the general principles of Community law, requires that acts adopted by Community institutions do not exceed the limits of what is appropriate and necessary in order to attain the legitimate objectives pursued by the legislation in question; where there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (Jippes, paragraph 81 and the case-law cited). 98 As regards judicial review of the implementation of that principle, bearing in mind the wide discretion enjoyed by the Community legislature where the common agricultural policy is
concerned, the lawfulness of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate in terms of the objective which the competent institution is seeking to pursue (Jippes, paragraph 82 and the case-law cited).
122 However, even though such judicial review is of limited scope, it requires that the Community institutions which have adopted the act in question must be able to show before the Court that in adopting the act they actually exercised their discretion, which presupposes the taking into consideration of all the relevant factors and circumstances of the situation the act was intended to regulate.
123 It follows that the institutions must at the very least be able to produce and set out clearly and unequivocally the basic facts which had to be taken into account as the basis of the contested measures of the act and on which the exercise of their discretion depended.
133 In those circumstances, the conclusion must be that the Council, the author of
Regulation No 864/2004, has not shown before the Court that in adopting the new cotton support scheme established by that regulation it actually exercised its discretion, involving the taking into consideration of all the relevant factors and circumstances of the case, including all the labour costs linked to cotton growing and the viability of the ginning undertakings, which it was necessary to take into account for assessing the profitability of that crop.
