European Union Law Notes 2021-2022 PDF

Notes on EUROPEAN UNION LAW Written and edited by Francesco Mauri Contents from A.Y. 2021/2022 lectures, class 20 Notes on European Union Law Table of Contents 1. Institutional Europe History of European Integration and Treaties............................................................................................ 4 The birth of the EEC...................................................................................................................................... 4 Two crucial decisions: Van Gend en Loos and the direct effect................................................................... 9 Two crucial decisions: Costa v. Enel (6/64) and the Principle of Supremacy............................................ 11 From the 70s to the Covid crisis.................................................................................................................. 13 The European institutions....................................................................................................................... 17 Focus On: The State of the Union Address (2021)...................................................................................... 23 The Competences of the EU.................................................................................................................... 24 Kinds of Competences................................................................................................................................. 24 Subsidiarity and Proportionality................................................................................................................ 28 The Instruments of EU Law-making......................................................................................................... 33 Hierarchy, regulations, directives, and decisions...................................................................................... 33 The Ordinary Legislative Procedure (OLP)................................................................................................. 36 2. Constitutional Europe Effects of the EU law............................................................................................................................... 38 Direct Effect................................................................................................................................................. 38 The real mess: directives and direct effect................................................................................................. 40 Problem Question: “Smoking does not kill” (part 1).................................................................................. 44 Vertical versus Horizontal Effect: the role of General Principles............................................................... 45 Vertical versus Horizontal Effect: Consistent Interpretation..................................................................... 47 The last resort: Francovich Liability............................................................................................................ 48 Problem question: “Bumps in the road”.................................................................................................... 52 Problem question: “Smoking does not kill” (part 2).................................................................................. 54 The European Court of Justice................................................................................................................. 54 Institution and Competences...................................................................................................................... 54 The Preliminary Reference Procedure........................................................................................................ 55 Enforcement of EU law............................................................................................................................... 58 Judicial Review of EU law........................................................................................................................... 60 Criticisms to the Plaumann test and alternative solutions........................................................................ 64 Grounds and Standards of Review............................................................................................................. 67 Problem Question: “The EU CARes!”.......................................................................................................... 68 Focus on: the Rule of Law crisis............................................................................................................... 69 The Charter of Fundamental Rights......................................................................................................... 72 Origins and structure.................................................................................................................................. 72 2 Notes on European Union Law The “Horizontal Provisions”........................................................................................................................ 76 The Scope of Application: Art. 51............................................................................................................... 79 The EU and the ECHR: a gap in Fundamental Rights protection?............................................................. 83 3. Substantive Europe Citizenship.............................................................................................................................................. 86 Foundational principles and rulings........................................................................................................... 86 The Consolidation Phase: Directive 2004/38............................................................................................. 91 The Right to Reside in Directive 2004/38................................................................................................... 93 The “Substance of the right”: Ruiz Zambrano Doctrine............................................................................. 99 Problem question: “Issues of citizenship”................................................................................................ 102 Summing up…........................................................................................................................................... 102 The internal market.............................................................................................................................. 103 General overview and history.................................................................................................................. 103 Free movement of goods.......................................................................................................................... 108 Customs duties (Art. 28-30 TFEU)......................................................................................................... 109 Discriminatory and Protectionist Taxation (Art. 110 TFEU)................................................................ 111 Non-fiscal barriers: Quantitative Restrictions..................................................................................... 113 A practical consequence of Cassis: Product Requirements................................................................. 117 Questions for reflection........................................................................................................................ 121 Problem Question: “Nectar of Aphroditi”............................................................................................ 121 Another Problem Question: “Smooth as oil, grooved as pasta”......................................................... 122 Free movement of workers....................................................................................................................... 123 Problem question: “Austria’s little secrets”........................................................................................ 128 Freedom of establishment........................................................................................................................ 128 Freedom to provide services..................................................................................................................... 133 Problem question: “A European massage…”....................................................................................... 138 Table of Cases....................................................................................................................................... 139 WE NEED YOUR HELP! It would be sad if this handout was set aside by a National Court or even by the ECJ since there may be some errors, inaccuracies, or misuse of the language throughout the following pages. If you notice them, please don’t challenge the handout, but tell us about them with a Preliminary Reference! You’ll help us improving our notes and making them more and more effective. Thanks! @iusatb and the editors 3 Notes on European Union Law DISCLAIMER! This handout has been written with no intention to substitute study from the official materials, indicated in the Class syllabus. Its only purpose is to help students feel more comfortable with the course contents. 1. Institutional Europe History of European Integration and Treaties The birth of the EEC First, we will focus on a bit of history (and then we’ll proceed with what the institutions are and how do they act: competences, instruments and law-making). How and why have we got where we are? The WW2, incredibly traumatic for Europe, undoubtedly provided a strong push to the continent: after the trauma, hope and need for reconstruction (especially in Italy and Germany) arose among Europeans. These three components (hope, trauma, and reconstruction) determined one of the biggest pushes in our history to try to build international institutions, treaties and organizations that would secure peace: shortly, a big push for international cooperation. In thirteen years, a lot happened: in 1945 the UN was created, and in 1948 it enacted the Universal Declaration of Human Rights (coming straight from the horrible experience of concentration camps). In the same year, the Organization for European Economic Co-operation (now, OECD) was established in order to organize the Marshall fundings for European Countries (that allowed Europe to rebuild). In 1950, after a year since its creation, the Council of Europe signed the European Convention on Human Rights and Fundamental Freedoms (that entered into force in 1953). Finally, in 1952 the European Coal and Steel Community was founded, and so it was in 1958 for the European Economic Community and Euratom (with the Treaties of Rome). To sum up, a lot happened in thirteen years (and we have to know it all!). It is extremely interesting to look at the preambles of the various treaties that established such international institutions: a common feature is the need for cooperation and the rejection of war. Just consider the UN Charter: WE THE PEOPLES OF THE UNITED NATIONS DETERMINED to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights [here, rights are seen as means to avoid what happened in WW2], in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small, and to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained [The idea of creating institutions to ensure also that Nations who signed treaties actually abided by their content was crucial], and to promote social progress and better standards of life in larger freedom […] 4 Notes on European Union Law In the meantime (1946), in Europe, another push was rising: Winston Churchill made a pivotal speech in Zurich, advocating for a United States of Europe (without considering the UK being a part of it, though: he was referring to continental Europe: Under and within that world concept we must recreate the European family in a regional structure called, it may be, the United States of Europe, and the first practical step will be to form a Council of Europe. If at first all the States of Europe are not willing or able to join a union, we must nevertheless proceed to assemble and combine those who will and who can. The salvation of the common people of every race and every land from war and servitude must be established on solid foundations and must be created by the readiness of all men and women to die rather than to submit to tyranny. In all this urgent work, France and Germany must take the lead together. After the Churchill’s speech, the Council of Europe was actually created (1949) as the first push towards regional European integration (and the UK was one of the first signatories). The recurring words of its charter1 are the extremely similar to the UN one: peace, justice, international cooperation, economic and social process, unity. Again, another institution (that – please keep in mind – has nothing to do with the EU) was created with the same idea of international cooperation securing peace. It has its own aims (i.e., to promote the rule of law, fundamental rights, and democracy) and started with 10 Contracting Parties (now, it has 47 member states); but most importantly, it enacted the ECHR, which was enforced by the revolutionary European Court of Human Rights: prior to that, there was no concrete focus on protecting human rights at a supranational level. Indeed, it was the first time that a person could bring a case before an international court: States accepted that supranational judges could have a say on what they were doing. After WW2, everybody distrusted that States could really ensure fundamental rights, if left completely on their own and without any external limitation (after all, just think of fascism, but also of Orban in Turkey): a change in a single constitution would not have changed their obligations from the ECHR. Another (slightly “smaller”, but not less important) process was forming in the same years, and it had to do with European unification, which had become really pressing. One of the most important steps towards the creation of the ECSC was the Schuman declaration (9 May 1950), written by Jean Monnet and Robert Schuman, the French Minister of Foreign Affairs. What Schuman said is a piece of genius: Europe was not to be made at once (it wouldn’t have worked!); instead, it would have been built step by step through concrete achievements (such as the ones happening right now: through the creation of the Recovery Plan, the bankruptcy of – at least – three member States was avoided). That was in order to make sure that “the age-old opposition of France and Germany” was eliminated, to ensure lasting peace in the European continent. This way of proceeding, through little pieces, was theorised as the Neo-functional theory of European Integration. Hence, the first step was taken, and the European Coal and Steel Community was established in 1951. The underpinning reasoning for its creation was indeed ingenious: there were two industries that were absolutely 1 Consider this extract from the preamble: “Convinced that the pursuit of peace based upon justice and international co-operation is vital for the preservation of human society and civilisation; Reaffirming their devotion to the spiritual and moral values which are the common heritage of their peoples and the true source of individual freedom, political liberty and the rule of law, principles which form the basis of all genuine democracy; Believing that, for the maintenance and further realisation of these ideals and in the interests of economic and social progress, there is a need of a closer unity between all like-minded countries of Europe; Considering that, to respond to this need and to the expressed aspirations of their peoples in this regard, it is necessary forthwith to create an organisation which will bring European States into closer association, Have in consequence decided to set up a Council of Europe consisting of a committee of representatives of governments and of a consultative assembly”. 5 Notes on European Union Law needed for war, and those were energy and steel. Therefore, as the most important industries of those goods were in France, Germany, Italy and in BENELUX Countries, a “basket” (i.e., an institutional structure) was established: the countries renounced to their sovereignty so that the exploitation of coal and steel would be regulated by a supranational entity with its institutions, that would allow a control outside the remit of the States. The preamble of the ECSC Charter2 is self- explanatory: the aim was avoiding a new war. What was also new about the EEC was the need for institutions in order to make it work: a Commission was established, which had power of enforcement so that it could ensure that State parties would abide by the treaties. In 1957, EURATOM was created. Remember the post-war context in which these treaties emerged: everybody wanted to ensure that exploitation of atomic energy was only linked to peaceful purposes. The ingenious solution was interlocking the economies of the member states so much that war would become not only difficult (mainly due to the ECSC), but also extremely economically inconvenient: once the economies are interlocked, then going to war is economically disastrous. In the same year, the Countries of Italy, Germany, France, Luxembourg, the Netherlands, and Belgium decided to ensure that the factors of productions could move freely between the member States. To do so, the European Economic Community was established (with the Treaties of Rome, signed in 1957 and entered into force in 1958). In the preamble of the treaty, a broader aim emerges: […] DETERMINED to lay the foundations of an ever-closer union among the peoples of Europe [that is also something new: usually, treaties are among States; here, instead, people are directly mentioned: this reference to the peoples of Europe would become remarkably important in some decisions of the European Court of Justice, as an instrument to push forward a rather unique vision of the European integration], RESOLVED to ensure the economic and social progress of their countries by common action to eliminate the barriers which divide Europe [note the ever-recurring theme: the desire to eliminate divisions and maintain peace], AFFIRMING as the essential objective of their efforts the constant improvement of the living and working conditions of their peoples [again, another reference to peoples rather than States], [now, they are stating how they will achieve it:] RECOGNISING that the removal of existing obstacles calls for concerted action in order to guarantee steady expansion, balanced trade and fair competition [remember that this happens together with the efforts to reconstruct Europe after WW2], ANXIOUS to strengthen the unity of their economies and to ensure their harmonious development by reducing the differences existing between the various regions and the backwardness of the less favored regions, DESIRING to contribute, by means of a common commercial policy [that is: a common external policy, towards foreign Countries, to have a deeper integrated internal market3; in 2 “Resolved to substitute for age-old rivalries the merging of their essential interests; to create by establishing an economic community, the basis for a broader and deeper community among people long divided by bloody conflicts; and to lay the foundations for institutions which will give direction to a destiny henceforward shared” 3 To understand the difference between internal commercial policy and external commercial policy, consider the following example: a bottle of Coke – with an internal common market – could be produced in Italy and moved to France in the same way as doing it vice-versa or between other Countries. Similarly, when products (or parts of them: consider, for instance, the components of a laptop) come from outside Europe (rectius, the EEC), we want to ensure that those products, once they have entered a member State, can continue circulating. Suppose, for instance, that a made-in-China processor is imported in Italy, where it is used to build a laptop that would be sold in France: this can be done only if external treaties are signed all together. Moreover, the same conditions of entry shall be applied in all member states of EEC (now, of EU): imagine, as way of example, that Italy applies a tariff on Coke of €1 per bottle; if, 6 Notes on European Union Law other words, EEC Countries would have to cooperate when signing commercial treaties with external Countries], to the progressive abolition of restrictions on international trade […] Hence, in short, the keywords of the treaties, as far as the means are concerned, are balanced trade, competition law and common commercial policy. Moving to the article 2 of the Treaty of Rome, we find the objectives of EEC. Whereas the preamble simply states the intentions of signing parties with nice and dreaming words, the provisions that can be found inside the treaty (i.e., articles) are legally binding. Art. 2 of EEC Treaty states: The Community shall have as its task, by establishing a common market and progressively [progressively not by chance: remember the Schuman declaration] approximating the economic policies of Member States, to promote throughout the Community a harmonious development of economic activities, a continuous and balanced expansion, an increase in stability, an accelerated raising of the standard of living and closer relations between the States belonging to it. In art. 2, we can see the clear functionalist approach of EEC. These objectives could be achieved only through a well-conceived and revolutionary institutional structure. Firstly, permanent institutions (rather than ad hoc meetings), with buildings, employees, secretariats, competences, etc.: those were the Commission, the European Court of Justice (henceforth, ECJ), the Council, the Assembly (later renamed as European Parliament). This last institution, at the time it was formed, was made of parliamentary delegations of National MPs (the direct election of its members would have been introduced only in 1979). In order to effectively approximate the members’ economic policies (i.e., to bring legislations close), they gave themselves a law-making power: the power to take directly (and this was the crucial innovation) binding decisions. Moreover, they were extremely aware of the possibility that States would later ignore European obligations and sign treaties that would be distant from the European policies. Therefore, they created an autonomous system of enforcement: they gave the European Commission (and other States) powers to bring uncomplying States before the ECJ. Moreover, the Preliminary Reference Procedure was established, taking inspiration from the Italian and French judiciary systems. The treaties wanted a law-based system to work, and so they needed a Court that would give the so-called authentic interpretations (as our Cassazione); otherwise, each of us might interpret norms and principles in a different way (the concept of freedom of expression, for instance, is interpreted in Europe much more narrowly than in the US4). Therefore, they created the ECJ, that would give one interpretation of European Law that would be applied throughout the member States: with this procedure, the internal Courts could ask questions to the ECJ concerning the interpretation of European treaties and provisions; the ECJ interpretation would therefore be the only one to be applied by all the European Courts from that moment on. We must also point out that another important revolution of this procedure was the empowerment of national Courts as for rising questions directly to the ECJ. Finally, the treaty confirmed its functionalist approach limiting and defining competences of the European Institutions: they would act only with powers they have been conferred by the treaty (i.e., principle of conferral). at the same time, France applies one of €0.5 per bottle, Coca Cola would be surely export to France first, and then sell its drinks to Italy (remember: there’s always a single internal market), as it would be much cheaper. 4 Or consider also the issue related to the right to health, which was used in the US as a way to protect both the right of abortion and its prohibition. 7 Notes on European Union Law Therefore, the Treaty of Rome creates a (partly) completely new legal framework in order to effectively establish a Common Market. But what were its features for achieving economic integration? 1. Firstly, a Customs Union: being the first and most basic form of economic integration, it consists of undertaking not to put tariffs (i.e., charges) on the goods circulating within the territories (this, by having common customs tariffs). But the treaty goes beyond: it also prohibits quotas and measures that would have equivalent effect (thus, leaving the floor for the ECJ to define this extremely broad concept: potentially everything could have the same effects as quotas). This would be able to promote the second means: free movement of goods. 2. Then, the Treaty affirmed the free movement of factors of production: i.e., goods, services, capital (realized il 1992) and workers (i.e., no visas, no discrimination on workplace). Namely, this idea of free movement comes from economic efficiency. Just think about goods: if Fiat produces a car sold at €20.000, and Volkswagen produces an equivalent one sold at €10.000, in order for the market to be efficient, the latter must be put in the conditions of selling its car to Italy (so that it could compete with Fiat). This creates a push towards efficiency: Fiat will then be forced to reduce its prices and/or become more effective. What’s more: there would be a more efficient exploitation of resources. The same works for the freedom of establishment: i.e., the possibility for a company to settle everywhere in Europe (and exploit so-called passporting rights: setting their activities in a single Country and then sell their services everywhere in Europe, as it happened with financial companies in the UK before Brexit). As for services, it is the same: services can be sold and bought between different States (just think about those that are sold on the Internet). And likewise for workers (an innovation that was pushed by Italy in particular: we had high unemployment, whereas Germany had the opposite problem). 3. Common Competition policies and State Aid laws. Imagine, for instance, that Fiat has fallen into a financial crisis, due to the cheaper Volkswagen cars that are being sold in Italy. The first reaction of an “incompetent” Prime Minister would arguably be giving subsidies to the company: the PM would pay Fiat to be inefficient (indeed, it would be able to lower its prices, although without turning to something more efficient). Therefore, founders of the EEC wanted to ensure that both the conditions of competition (i.e., how companies behave with one another) and state aid are under control: they gave this competence to the Commission, Otherwise, States would always to be tempted to help their own companies with those kinds of subsidies. As for the conditions of competition, the issue was preventing collusion between companies (e.g., an agreement between Fiat and Alfa Romeo to stop the possibility for Volkswagen to come in). 4. Finally, they needed common commercial policies with third Countries, as we mentioned earlier. This can be effectively summed up with the Four Freedoms: goods, workers5, services and freedom of establishment. To make all of this work, the drafters provided a duty not to discriminate on grounds of nationality, whether that concerned goods, people, or companies. 5 And this is pretty much unprecedented: the main thing that is protected by governments is employment, also preventing foreigners to work in their Countries. Oppositely, the EEC Treaty not only allowed free movement, but also prohibited working visas (i.e., job permits for foreigners that also specify which job could be done) for member countries. And this brings also the prohibition of discrimination on workplaces and equal social protection for citizens of member States. 8 Notes on European Union Law Two crucial decisions: Van Gend en Loos and the direct effect Now, let’s move to 1963. Martin Luther King Jr. makes his most notable speech “I have a dream”, J. F. Kennedy is murdered, and the European legal order is created, with the ECJ ruling Van Gend en Loos (26/62). First, let’s consider some background information. As we said, in order to create the common market, it was crucial to eliminate customs duties (i.e., taxes placed on imported products). In order to make it easier, a transition period was established, within which the member States undertook the duty (before eliminating every duty) not to increase the existing ones. This obligation was provided by Article 12 EEC (now article 30 TFEU)6. However, completely ignoring the provision, the Netherlands decided to increase duties on a chemical product (from 3% to 8%). Van Gend en Loos, a company affected by such increase, questioned its validity, claiming it went against article 12 EEC. Hence, the Dutch Court agreed that the Parliament’s decision was against the Treaty; nonetheless, the problem was understanding the value of this treaty as for its relationship with internal law, thus deciding: “Whether article 12 of the EEC Treaty has direct application within the territory of a member state, in other words, whether nationals of such a state can, on the basis of the article in question, lay claim to individual rights which the courts must protect”. In other terms: do National Courts have to directly apply the Treaty? Can individuals be directly protected on its basis? As the interpretation of the Treaty of Rome was at stake, that was clearly a matter that could be deferred to the ECJ through the extremely innovative – as we have mentioned – Preliminary Reference Procedure (the ECJ, indeed, had interpretive monopoly over EEC provisions). On the one hand, the Dutch government claimed that the Treaty of Rome was nothing more than an international treaty: the only way they could enforce the obligations contained in it was through an infringement procedure started by the Commission (and not, oppositely, through its direct applied by National Courts). The issue, according to the government, was not on the interpretation of the treaty, but rather on its application. Moreover, the Treaty (again, considered as nothing but an international treaty) did not contain any indication that the parties intended this Treaty to have these effects in domestic legislations. Other governments joined the procedure: Belgium affirmed that was simply a matter of national constitutional law (it is the Constitution that determines the effects of an international obligation on the legal system – i.e., to establish a situation of dualism – that requires ratification before application – or monism): it was not for the ECJ to decide the case. Likewise, Germany claimed the Treaty only represented an international obligation that should have been implemented by national authorities. Long story short, three out of six member states were on the same side, against the direct application of the EEC treaty, committed to a traditional approach. According to this theory, treaties are a matter for State Parties and have to be resolved amongst States (with the only exception being the possibility for the Commission to raise infringement proceedings). That being so, effects of international law were to be determined by national constitutional law. On the other hand, Van Gend argued for the direct effect in the Dutch legal system. The provision of the treaty was, indeed, clear: a negative obligation (i.e., not to engage in a certain conduct) that was so directly effective. The fundamental freedom of movements of goods needed to be protected against the infringements, and that was only possible through rulings of the ECJ; moreover, because of this, there is an obligation for national courts to set aside the national contrasting norms at stake in their reasoning. Similarly, the Commission (which intervenes in every case brought before the 6 “Member States shall refrain from introducing, as between themselves, any new customs duties on importation or exportation or charges with equivalent effect and from increasing such duties or charges as they apply in their commercial relations with each other”. 9 Notes on European Union Law ECJ) claimed that this provision in particular had direct effect, as it consists of a clear prohibition that was complete and self-sufficient. Hence, there was nothing left to be interpreted by national Courts and/or implemented by national legislation. Finally, the Commission remarked the crucial importance of this issue for the whole legal order. In response, the Court ruled, in a revolutionary way, as follows7, thus establishing a new legal order: The objective of the EEC Treaty, which is to establish a common market, the functioning of which is of direct concern to interested parties in the community, implies that this Treaty is more than an agreement which merely creates mutual obligations between the contracting states. This view is confirmed by the preamble to the Treaty which refers not only to governments but to peoples. It is also confirmed more specifically by the establishment of institutions endowed with sovereign rights, the exercise of which affects member states and also their citizens. Furthermore, […] the nationals of the states brought together in the Community are called upon to cooperate in the functioning of this community through the intermediary of the European Parliament and the economic and social committee. In addition, the task assigned to the Court of Justice under article 177 [now 267 TFEU], the object of which is to secure uniform interpretation of the Treaty by national courts and tribunals, confirms that the states have acknowledged that Community law has an authority which can be invoked by their nationals before those courts and tribunals. The conclusion to be drawn from this is that the Community constitutes a new legal order of international law for the benefit of which the States have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only member states but also their nationals. These rights arise not only where they are expressly granted by the Treaty, but also by reason of obligations which the Treaty imposes in a clearly defined way upon individuals as well as upon the Member States and upon the Institutions of the Community. The reasoning of the Court was indeed revolutionary, also because when the Treaty was written, the drafters had not thought about it having direct effect. When the Court decided the case, it had two possible ways to do it, also according to the position of the parties: It could have treated the case as a matter of international law, the application of which, as we know, concerns domestic constitutional law: the same treaty could be hence applied in very different ways between contracting parties. This would not assure uniformity, which instead is what a treaty aimed at an internal market needs. It could have established – as it eventually did – a new legal order. The Court was aware it was doing something totally new: it could not pretend that was only a matter of interpretation of international law. And the Court explains itself from the really beginning of the abovementioned extract. The Treaty of Rome was not an international treaty as those they were used to know, and this is because, first of all, the preamble8 is referred not only to States, but (for the first time) also to peoples. Moreover, this is also confirmed by the European institutions being endowed with sovereign rights whose applications directly affects the citizens: as a way of example, consider that the Regulations of EEC such as provisions on competition law have direct applicability. In fact, the drafters created permanent institutions that had law-making powers, thus automatically implying that individuals are directly affected by what institutions do (unlike in usual international law). We are not dealing with “ordinary” international law because the drafters have given themselves huge power, and this affects the citizens, imposing obligations on them. Then, 7 Note that the ECJ doesn’t allow its judges to write dissenting opinion, in order for them not to be as political as, for instance, the American judges are. 8 This is indeed curious, as the Court does not base its reasoning on preambles very often: they are not the legally binding part of a Treaty. However, the Court did it in this case due to the importance of the matter. Moreover, it strengthened its reasoning by underlining the peculiarity of the EEC institutional structure. 10 Notes on European Union Law the Court stresses the relevance of the individuals that emerges from the treaty: namely, mentioning the European Parliament, an assembly that represented the people (though indirectly), whereas ordinary international relationships are intergovernmental (i.e., they occur between governments, and not with parliamentary representatives of the people). However, the strongest legal argument comes at the end, with a teleological interpretation (i.e., the Court reasons also referring to the aims of the treaty): what would be the point of having an ECJ jurisdiction if Community law could not be invoked in front of national courts? What would be the point of ECJ interpreting the treaties, if its decisions could not bind the national courts? Hence, the striking conclusion: a new legal order had been established: it was nothing like things they were used, as it was neither domestic law nor a pure international law treaty. And this new legal order, as we will see in a moment, needed its constitutional principles: the very first decisions were indeed aimed at building and refining that legal order. For the first time ever, citizens and people were to be directly benefited by the Treaties: the first pillar of the new European legal system was indeed the Direct Effect. Two crucial decisions: Costa v. Enel (6/64) and the Principle of Supremacy Now, we will move to another landmark case, especially for us Italians. First of all, we must always remember we are studying a composite system, made of member states (with their institutions and Courts) and the European Community. Of course, it is ok for the ECJ to affirm that a new legal order has been established, but it must not be taken for granted that the National (Constitutional) Courts would accept it straight away. Indeed, the relationship between the Courts has always been quite complicated: the hermeneutical monopoly that the ECJ is endowed with has subverted the National judicial hierarchies9. This is what happened in Costa v. Enel, first decided by the Italian Const. Court (14/1964) and later by the ECJ (6/64). A lawyer in Milan, after receiving an electricity bill by ENEL, which was then the only energy provider in Italy (in a condition of public monopoly) challenged it, claiming that the Italian legislation that allowed that situation was incompatible with the Treaties. The legislation at stake had been passed after the creation of the Treaty of Rome: this particular is crucial, due to the chronological principle according to which “lex posterior derogat priori”. It was extremely relevant that the nationalization of ENEL had been passed after the ratification of the treaty: from an ordinary perspective, that would have repealed any former piece of legislation (the Treaty included). However, that was not the case, because of the peculiarities of the new legal order. The case ended up at the Italian Constitutional Court, that affirmed that the violation of the EEC Treaty might have created international liability for Italy, but it did not deprive of its full effect the law conflicting with the Treaty. The Italian Constitutional Court, indeed, interpreted the Treaty according to the ordinary theory of international law, thus going against the Van Gend ruling. What is more, the Court held: There is no doubt that the State must honour its commitments; however, the legal principle pursuant to which the most recent laws take precedence over the earlier ones must prevail so that there cannot be any question as to a potential (indirect) conflict with the Constitution of said laws [i.e., those commitments exist and have effects only at an international level, without affecting the validity of internal legislation]. However, the referring national tribunal was not persuaded by the answer of the Constitutional Court: therefore, it also made a preliminary reference to the ECJ (how it dared!), arguing only on the basis of the Treaties and not on the National law at stake (as the ECJ could not do otherwise). 9 An example of how huge the extent of the matter is could be the following. The Treaty prohibits salary discriminations based on gender; however: does this refers also to transgenders? 11 Notes on European Union Law The Italian Government pleads the inadmissibility of the Case, in order for the case not to be discussed in front of the ECG: it was simply none of its business. In other terms, the dispute did not concern EU law because the Milan tribunal only had to apply domestic law. Furthermore, Italy argued it was not possible to use the preliminary reference procedure in order to ascertain a violation of EU law by national law: indeed, in the treaty itself a specific and (according to the Italian government) exclusive infringement procedure was provided. Otherwise, it would be circumventing that procedure. Conversely, Mr. Costa used a so-called catch 22 argument (i.e., a particularly ingenious and circular argument): the Treaty clearly stated that a National Court could freely ask for a preliminary reference; therefore, if the national court says there is a question of interpretation of EU law, then there is a question of interpretation of EU law. The Commission agreed with Mr. Costa, claiming that the ECJ must not be concerned with the reasons why a national Court raises a preliminary reference: It is not for the court to assess the reasons that have determined the national court to refer. However, the position of the Commission was closer to the Italian one: indeed, in that case it seemed rather an action for infringement than a question of interpretation. The Court, finally, delivered the second pillar of the European Member States: The Principle of Supremacy of EU law: By contrast with ordinary international treaties, the EEC Treaty has created its own legal system [i.e., more than just a new legal system!] which […] became an integral part of the legal systems of the Member States and which their courts are bound to apply. Therefore, not only there are individual rights granted by the Treaties, but also an obligation for National Courts to give effect to the European Law. The decision follows as such, giving reasons for its strong statement: By creating a Community of unlimited duration, having its own institutions, its own personality [for the EEC can enter into agreements with third parties as an autonomous subject of international law], its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the States to the Community, the Member States have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves [here, the Court is building new arguments on the Van Gend case]. The integration into the laws of each member state of provisions which derive from the Community, and more generally the terms and the spirit of the Treaty, make it impossible for the States, as a corollary, to accord precedence to a unilateral and subsequent measure over a legal system accepted by them on a basis of reciprocity. Such a measure cannot therefore be inconsistent with that legal system. The executive force of Community law cannot vary from one state to another in deference to subsequent domestic laws, without jeopardizing the attainment of the objectives of the Treaty […]. The Courts tried to find grounds for its reasoning, and it did it by an almost self-evident truth: it is impossible for the member States to give precedence to a rule that is subsequent to the treaty. Otherwise, there would not be uniformity: we would have 27 different legal systems. The only solution to this problem, then, is saying that if the national legislation conflicts with EU law, the latter takes precedence. What’s more: the national Courts must apply the European law instead of national law. Then, the Court continues with a logical consequence: It follows from all these observations that the law stemming from the Treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question. The transfer by the States from their domestic legal system to the Community legal system of the rights and obligations arising under 12 Notes on European Union Law the Treaty carries with it a permanent limitation of their sovereign rights, against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail. Woah. That’s it guys. It cannot be otherwise: member states have entered into European obligations and therefore they’re bound to it. Otherwise, it would deprive the Community of its very meaning. Also, direct effect and supremacy go hand in hand: it wouldn’t make any sense to have direct effect if member States could easily circumvent the rights granted by the Treaties. And again, this is not how international law normally works. In an ordinary situation, we would have the domestic constitutional system deciding the value of the international treaty within the national legal order. Thus, its value could vary between one State and the other (depending on the Constitutional framework at stake) and, as far as individuals are concerned, whether they are granted with the rights written in the Treaty would depend on how international law is incorporated in the domestic system. The EEC treaties, of course, have a value because the domestic Constitutional systems allowed them; however, once the States have entered into the treaties, their legal value and effect are determined by the treaties themselves. Now, we as individuals can simply see the application of the treaty on our situations: in a case covered by the European treaties, whether I am litigating in Italy, or in Poland, or in Germany, etc., I should have exactly the same outcome. From the 70s to the Covid crisis We will now continue looking at the history behind EU integration. As we shall see, integration is not a straightforward “growing” path, from light to strong integration: actually, the big pushes towards it always came from moments of crisis or of big historical events. This path, however, was very difficult: indeed, there was (and is) no uniform agreement as to what we really want, i.e., about what should be the objectives of the EU. In this respect, we have a constant debate and struggle between those who would like deeper integration (towards a federalist Europe) and those, whose biggest representative was Margaret Thatcher, who wanted only economic integration, without any European politics. And this debate is still here today: just consider, for instance, the debate concerning the fiscal integration, promoted by the so-called frugal States. We always have to remember that EU integration significantly reacts to (or, sometimes, is even driven by) geopolitical pressures (consider, for instance, the role of the EU in the Afghan crisis) and to internal pressures as well: indeed, as far as the period we will now focus is concerned, the most important events that triggered an integrationist push were, indeed, the German reunification in 1990, the War in former Yugoslavia during the 90s, the 2008 Economic Crisis, Brexit and the Covid crisis. And note that, besides the German unifications, we are always referring to crises. As we said, there is a constant of a lack of an underlying shared vision concerning the role of the EU. This is however no surprise: the actions and ideas of “our” 27 member States also reflect what is happening there, at the domestic level; indeed, the European directions also reflects national priorities and politics. To sum up, the chart on the right is extremely helpful, as it contains the main events that occurred during the years (in the green boxes and in the red circle) and the main steps of European integration (in the blue boxes). 13 Notes on European Union Law To be more precise, we shall now focus on the 70s, when a big recession hits the West, and the European Countries stopped the European integration towards a more protectionist approach, due to the desire to protect domestic economy, without any possible interference from outside. Of course, this goes against the very principle of the European Economic Community, one of whose main purposes was actually to abolish protectionism. As a result of this, we experience a stall in the European project (i.e., very little law-making from EEC institutions), after it had been already hit by the consequence of the so-called Luxembourg compromise (an agreement which gave Countries the possibility to disagree with EEC policies if a vital interest was at stake). Because of this protectionism, the ECJ stepped in, as it started interpreting the provisions of treaties so that companies and individuals can rely on the rights provided in them (thanks to the aforementioned direct effect principle) and overcome protectionist tendencies. Say that, during the crisis, we have a big unemployment issue: the government could decide to favour the employment of domestic citizens. Helena, an Italian citizen who lives in France, can go in front of a Court, challenging the French protectionist approach that prefers nationals over other European citizens. This can happen also without precise legislation by the EU: the treaties are perfectly sufficient to trigger the action of the ECJ. We will later analyse this phenomenon (i.e., integration occurring even without integrated legislation) under the name of negative integration. Without this case law, we would not have reached an internal market: for a long time, States did not provide secondary European legislation. Instead, with four essential rulings (Ugliola, Dassonville, Cassis de Dijon and Van Bisbergen), the ECJ established the fundamental principles of the internal market: mutual recognition, broad and teleological interpretation of discrimination. Furthermore, it is worth mentioning that in 1975 the Trevi Group was formed, which allowed cooperation in the field of security, and which would have been later absorbed in the Third Pillar of the EU with the Maastricht treaty. A few years before., in 1973, the UK, Ireland and Denmark joined the EEC. Finally, in 1979 we have the first direct election of the European Parliament: for the first time, citizens are able to directly elect their representatives in a supranational body (usually, conversely, it is the governments who cooperate at an international level, and not people). This means considering people as direct stakeholders of the European policies. In the 80s, Greece (1981) and later Spain and Portugal (1986) joined the EEC, after coming out of dictatorship. In 1985, the so-called White Paper was signed10, and the year after, in 1986, the first treaty modification happened, with the Single European Act, which introduced the Qualified Majority Voting in the Council (i.e., decisions amongst member States can be taken even without unanimity): this is indeed a huge development, as before one single State (even a small one like Luxembourg) could impose a veto over a bill, making legislation de facto almost impossible. Instead, with Qualified Majority Voting, a member State can be easily outvoted: with the Single European Act, member States agreed that they would be bound to EEC policies even if they voted against them (obviously, if QMV was reached). Remarkably, this does not happen in ordinary international relations: indeed, States have all to agree. This time, instead, States accepted that sometimes they would do something they did not want. This slowly became the normal way of legislation in the EU, in order to avoid the dictatorship of the minority. Moreover, with the Single European Act, a new legislative procedure (the so-called Cooperation procedure), that basically gave the European Parliament a veto power over certain topics, was established. This is, of course, a result of direct election of the Parliament: in order to make citizen representation more effective, the participation European Parliament was made mandatory in order to make (some) new decisions (by tacit approval or rejection of legislative proposals). Finally, in the substantial respect, the competences 10 This document was a political and legislative agenda with the aim of completing the single market. For more references see the role of the white papers within the Eu Institutions. 14 Notes on European Union Law of EEC were increased (and, as we will see, this would have been a constant of every treaty revision and modification). Then, in 1999, the Berlin wall falls in a very emotional moment, and this changes everything: due to German unification first, but also (and most importantly) due to the new constituency acquired by the EEC (i.e., States that before were under the influence of USSR). Thus, from the very beginning, EEC started considering enlargement. Moreover, in the same years, we experience another genocide within the European territory: the war in former Yugoslavia. The same years are also marked by changes in national political level. First, the Thatcher Government falls (over the Maastricht treaty): curiously, every Conservative PM in the UK since her has fallen over issues related to European integration. His successor, John Major, managed (although with difficulty) to get the Maastricht Treaty ratified by UK Parliament. At the same moment, in Italy, Mani Pulite changes the political scenario. Finally, in 1997 Mr. Tony Blair gets elected in the UK, becoming the first PM who is not Eurosceptic. This would have allowed to further proceed in European integration. Finally, in 1998, the civil war in Northern Ireland ended with the so-called Good Friday Agreement, between Protestants and Catholics. By the way, one of the reasons why Brexit is still a problem is the situation of Northern Ireland. But let us go back for a while to the German Reunification in 1990: Germany would become the biggest member State: indeed, many States feared that a Greater Germany would lead to an excessive weight of Germany in the process of EU integration. As a result, however, the political debate on the future of the EEC starts afresh: immediately, an extraordinary European Council (the meeting that is deputed to decide the political direction of the EEC) was held in Dublin to decide the political direction of the Community. Again, the division between the “federalists” and those who simply wanted an economic union emerged (and this will be even more clear in the Preamble we will see in short). Out of this, we got to the Treaty of Maastricht in 1992, the very first huge change in the process of European Integration: in fact, it created the European Union. As always, the Preamble of the treaty is self-explanatory: This Treaty marks a new stage in the process of creating an ever closer Union among the peoples of Europe, in which decisions are taken as closely as possible to the citizen. A big federalist push clearly emerges from the very first words: the compromise, though, was the principle according to which decisions were to be taken as closely as possible to the citizen (i.e., principle of Subsidiarity), as some States (e.g., the UK) did not want an “European Superstate”. What’s more: the treaty, reiterating the idea of people of Europe, introduces the European citizenship, providing a brand new “European Passport” to every citizen. Also, for the first time, it mentioned the national identities of its Member States, due to the always present will to limit the extent of integration, and the principle of democracy (in the perspective of enlargement: potential countries that wanted to join the EU were not democracies, or were very young ones; therefore, member States wanted to restate that the countries that wanted to join needed to be based on that crucial principle). Then, for the same reason as before, we find an explicit reference to the respect of fundamental rights11 that, after several rulings of the ECJ that were based on those, were finally codified. Finally, we find the idea that (of course, within the limit of very defined competences) the EU could use all the necessary means to achieve its objectives (i.e., the principle of residual competence); indeed: The Union shall provide itself with the means necessary to attain its objectives and carry through its policies. 11 Indeed, the Treaty went on: “The Union shall respect the national identities of its Member States, whose systems of government are founded on the principles of democracy. The Union shall respect fundamental rights, as guaranteed by the ECHR and as they result from the constitutional traditions common to the Member States, as general principles of Community law”. 15 Notes on European Union Law The Treaty dramatically changes the integration, creating the EU and changing the “form” of the EEC, making it “European Community” that goes beyond mere economic integration. The three communities that existed before (EURATOM, EEC and ECSC) are merged into one. The Treaty, then, put the basis of what would have become the Economic and Monetary Union. Furthermore, it recognized the role of co-legislature to the European Parliament: indeed, the EP becomes at the same level of the European Council in most areas of law-making: no law shall pass without the approval of the EP. Finally, as a result (again) of geopolitical changed, the drafters changed the ambition of the European project, adding two more fields in which it was possible to have European action: the Common Foreign and Security Policy (referred to as the Second Pillar). Despite recognising the need for cooperation in foreign policy, States were still very jealous of their sovereignty and role in international relations: the Second Pillar remained governed by an intergovernmental method (i.e., simple coordination amongst the governments); this means deciding by consensus, without possible intervention of the ECJ (that would have been an accelerator of integration) and with small involvement of other EU institutions (whether Commission or EP). The effects of this approach are still visible today: reactions to the Afghan crisis are being taken with governmental coordination (with even contradicting statements among European leaders), and not at an institutional European level. and the Cooperation of Freedom Security and Justice (as the third pillar), meaning new cooperation between areas such as civil law, criminal law and asylum policies. Thus, the structure that is created by the Treaty is characterised by these three pillars (the European Community, Common Foreign and Security Policy and Justice and Home Affairs), underpinning the (highly rhetorical) European Union. Maastricht treaty really changed European ambitions. Moreover, after Maastricht, we have two treaties whose main purpose was to prepare the EU for enlargement. In 1993, the Copenhagen European Council provided the criteria the States had to meet in order to join the EU. Of course, this was not enough: the EU also needed a change in the institutions. For instance, Member States had to decide how many MPs each new Country would have, how to vote policies, etc. Unfortunately, these institutional reforms fail in the first place, at the Amsterdam Treaty in 1999. Nevertheless, some important changes occur, continuing the path of European integration. After a comprehensive debate about the legitimacy of the EC – as the more power States gave Europe, the more power was needed by the EP in order to secure democratic accountability –, a new sanctioning procedure for Member States with “serious and persistent breaches” of the values of the EU (that is, rule of law, democracy, and fundamental rights). This procedure still exists, despite not working very well. Moreover, we witness another strengthening of the EP role (through co- decision and Commission election), in order to increase competences of the EU without experiencing a lack of democratic accountability. Namely, the Schengen and Area of Freedom Security and Justice (i.e., cooperation in civil, criminal and asylum law), with the possibility for 16 Notes on European Union Law Denmark, the United Kingdom and Ireland to opt in in respect of some decisions12. Anti- discrimination (beside the one based on nationality: i.e., gender, sexual orientation, disabilities, etc.) policies were enacted. Furthermore, Members started to go beyond mere economics and thought about the social aspect of Europe, with the sign of the Social Charter (that, for instance, provided coordination of policies related to employees: e.g., 48 working hours per week maximum). It is from this moment on that we start to see the so-called Multi-Speed Europe: in order not to stop European integration because of few dissenting member States (guess who, the UK), the drafters gave the possibility for them to opt out (or opt in) from the Treaties. Finally, European treaties got renumbered (and this would happen again in 2009, after the Lisbon Treaty). In 2000, the Nice Treaty made institutional amendments (that had failed to be done in Amsterdam) to prepare the EU for the 2004 enlargement. Indeed, the institutions were conceived for 6 MS, which in that moment were going to be 15. The idea was reducing the number of countries participating in the Commission, but this was not reached (due to Ireland who might find itself without a commissioner). Despite so, they made substantive changes. The European Charter of Fundamental Rights is solemnly proclaimed. Generally, we can find the proclamation of fundamental human rights in national constitutions. But in this case, it had not official legal value. There is a change in the article 7 too, but we will see that later. The new millennium started with a big shock for the world, after the attack at the Twin Towers. In 2002 the EURO becomes legal tender. In 2004, after the so- called big enlargement (where more than 10 countries joined the union), we find a first stop to the process of European integration with the failure of European Constitutional Treaty due to the referendum in France and the Netherlands. In 2005 Angela Merkel became German Chancellor. In 2007 the Treaty of Lisbon was signed, then coming into force in 2009. Substantially this is very similar to the European Constitution: it was indeed the result of a minor redrafting. It changes the structure established by the previous treaties. There is the Treaty on the European Union (TEU), the Treaty on the Functioning of the European Union (TFEU)13 and the Charter of Fundamental rights. After that the world entered in a long period of crises, starting from the economic crisis in the USA in 2007. It also affected Europe, where between 2009 and 2010 the sovereign debt crisis in the EU began. In 2009 the Treaty of Lisbon enters into force. To face the crisis a new treaty was signed, the ESM Treaty, a hybrid EU instrument outside the European Institution. This was due to the change of government in UK. In 2015 another crisis started, the refugee crisis, that challenged the Dublin System. In 2016 the UK decided to leave the Eu. It happened with a referendum, with a great turnout of people. Almost 52% of people voted for leaving Eu, which happened formally on 31 December of 2020. There was a transition period until that moment, but this created an unprecedent constitutional crisis in the UK. Both UK and Europe have negotiated their future relationship, but not all the issues are settled, and it is not going very well. The European institutions Before analysing the European institutions, we should recall some key concepts in the Eu context. The first one is intergovernmentalism, which means that national governments take the decisions following the principle of consensus, according to their domestic constitutional requirements. Usually, it is the executive which is in charge that takes part in this decision-making process. The other concept is supranationalism. In our context, it is also referred as the Community method: it is when you go beyond international cooperation and the concept of Nation-State. It is indeed 12 Those Countries (of course, the UK now excluded) can decide measure by measure, after being notified by the Commission, whether to agree or not. 13 The former TEC. 17 Notes on European Union Law based on an international treaty (i.e., the Treaty of Lisbon); however, member states confer power to institutions that are not exclusively made by representatives of the governments. So, the member states agree to give some powers to someone else who will exercise these powers. In the Eu context the decision making is delegated. Mostly, there is no unanimity (possibility of being outvoted), plus a directly elected European Parliament and a Commission as an independent body of officials. On top, we have a Court which sits at a supranational way (an instrumental role in ensuring EU integration, as we’ve already seen). We should consider the purposes of an institutional structure. In every system (from companies to little States), the institutional structure allows the systems to carry out its functions: indeed, it seeks to balance different interests. For instance, the representation of different interests (i.e., the representatives of students, the ones of teachers, etc.); moreover, we need to guarantee effective decision-making. If we decide everything by direct voting (for instance), it might be very ineffective (it would take too much time and effort). Finally, we need to think about checks and balances: it is normal, for instance, to have judiciary power balancing the legislative power; a specific role for minorities in the Parliament; etc. If we think about the institutional structure revolving around EU, which are the different interests we need to bear in mind in order to balance them? First of all: national interest v. community interest (sometimes they are different indeed!). What’s more: the interests of the citizens (as part of democratic representation). And there is another one worth mentioning: the fact that States that make up the EU have very different needs. Besides the ECJ, we will consider: The European Council, formalized with the Lisbon Treaty: it is formed of the heads of States and Governments, and it provides the political impetus to the EU, meaning that the Council decides the direction of powers (i.e., where can we find an agreement to move forward?) The Council of the EU: it is made of Member States representatives at a ministerial level. For instance, consider ECOFIN (made of financial ministers), or Home Affairs (made of the ministers of home affairs). The Council aims at deciding about budget and co-legislation. The European Parliament, which is directly elected by the peoples of Europe. It acts as co- legislator. Finally, the European Commission: it is made of “independent” officials (a member per country) and pursues the collective interests of the EU (it acts only in the interest of the EU) using its wide powers (including the sanctioning procedure and the power to initiate legislation, which is not delegated to the Parliament that hence cannot initiate legislation). Now, there are some principles contained in the treaties that relate to the institutions. First of all, we shall remember that Europe is made by states founded on the principle of democracy. For this reason, the Eu institutions are built on the principles of democratic accountability, autonomy, transparency, institutional balance, and loyal cooperation (in order to not frustrate the decision- making process). The article 10 TFUE expresses the principle of direct democratic accountability of the members of the European Parliament, due to the fact that citizens are directly represented in it. Moreover, the article clarifies why the EU Council, and the Council of Ministers are legitimate: due to indirect democratic accountability. These representatives of governments are themselves democratically accountable at a national level: usually, the Government is responsible either to the Parliaments, or directly to citizens. How is democracy best protected at EU level? Can you think of reasons why the Council might be perceived as not so democratic? It might be due to the lack of transparency (its sessions, in fact, are not public). We might have though decisions that are blocked by representatives we have not chosen. For instance, in 2004 the “Citizens’ directive” was in discussion: the EP voted in favour of recognition of same sex marriages; however, the Council of EU blocked the decision due to the veto of some states. Possibly, it could be a bit problematic. 18 Notes on European Union Law The first institution we will analyse is the European Council, regulated by the art. 15 TEU. The article says that the European Council shall provide the Union with the necessary impetus for its development and shall define the general political directions and priorities. So, its first characteristic is that it is a body of political direction. Moreover, it cannot exercise legislative functions. They just agreed – for instance – on the principle that the recovery fund was needed; but then, the details were decided by the co-legislators. The European Council shall consist of the Heads of State or Government of the Member States, together with its President and the President of the Commission. The High Representative of the Union for Foreign Affairs and Security Policy shall take part in its work. This person takes part because of course we live in an interconnected world, so the political direction has also an external influence. Except where the Treaties provide otherwise, decisions of the European Council should be taken by consensus. The main way the Council exercises its power of political direction is by setting the political agenda of the EU, providing the “impetus” to the EU. The treaty provides that the council meets every six months, or more if it is required by the circumstances. It is not a legislative body, and it is only codified in the Treaty of Lisbon which also creates the President of the European Council. This organ is elected by European Council with a qualified majority for two and half years, and its mandate is renewable once. It chairs and drives the work of European Council and prepares and ensures continuity with Commission President and General Affair Council. Its main duty is to build consensus, talking to different leaders seeing if an agreement on a specific action is possible. It is crucial in relation to the negotiations for the Recovery Instruments, where there were significant differences amongst MS and especially between the frugal countries and others. It also has the duty to report to the European Parliament after Council meetings. The Council of Ministers of the EU is regulated by the article 16 TEU. The council shall consist of a representative of each state at a ministerial level, who may commit the government of the member state in question and cast its vote. The council meets in different configurations depending on the matters to be considered (e.g., the Economic and Financial Council). The Council formations are not detailed in the treaties except the General Affairs Council and the Foreign Affairs Council. The former prepares the works of the European Council and co-ordinates the works of the “Council” in its several configurations. It is composed by the ministers for Europe. The latter is the Foreign Affairs Council, composed by the foreign affairs ministers and chaired by the High Representative. It is main duties are to deal with EU external action on the basis of the guidelines laid down by the European Council and to ensure that the Union’s action is consistent. The Council has a 6-month rotating chair given to a MS’s minister. The presidency in 09/2021 is held by Slovenia. We said that one of the main roles of the council is to act as a decision-maker in the co-legislature procedure with the European Parliament, and the meeting is public. It also approves the budget of the EU together with the EP. It enters into international agreements on behalf of the EU together with the EP. It co- ordinates the economic policies of the MSs and represents their interests. The interesting thing is that we might wonder how this last point would relate to the democratic indirect accountability. It votes generally with a qualified majority voting on a proposal made by the Commission or by the High Representative. The QMV is composed of 55% of members (16 out of 28) representing at least the 65% of EU population. There is also a blocking minority with a sort of veto power, which is made of at least 4 representatives of MSS representing at least the 35% of the population. An interesting detail is that the abstention counts as a vote against a proposal. In very few areas unanimity is requested and abstaining MS does not count. When proposals are not made by the Commission or HR (which is extremely rare) the QMV is enhanced at 72% of MSs representing at least the 65% of population. There is also the Eurogroup, which is basically the meeting of all finance ministers of the euro area, the President of the Eurogroup, the Commission Vice President and the President of the European Central Bank. They meet the day before Ecofin to discuss and agree on a position. Its 19 Notes on European Union Law role is contested because since it is not an institution its meetings are not public even if the decision taken within it have a huge effect. After the European Council we have the so called Eurosummit. It is composed by the heads of State or Government of the euro area plus the president of the European Council, the president of the Commission and, if necessary, the president of Eurogroup and the president of the EP. The problem is, again, that those meetings are not public. In an important case the ECJ has clarified that the Eurogroup is not an EU institution. This is interesting because the claimant was seeking non contractual liability for damages for something the Eurogroup decided. But since it is not an Eu institution the Court of Justice stated that it was not possible to sue it for damages. The High Representative for Foreign Affairs regulated by the article 18 TEU is responsible for Common Foreign and Security Policy and for external relations of the EU union, which include the commercial policy. It represents the EU externally and is responsible for external relations. It is also the Vice President of Commission de iure and chairs the Foreign Affairs Council. It is also appointed by the European Council by a QMV with agreement of the Commission President. For these reasons it is referred as a double hatted figure since it has important roles in both European Council and in the European Commission. We will now move on to the European Parliament14, that, as we saw, has been directly elected since 1979. After Brexit, its members passed from 751 to 705 (some seats were redistributed, to rebalance due to changes in demographics: Italy got 3 seats extra; and the remaining ones have been put on hold in case new members join). Interestingly, the federalist movement had proposed that other seats should have been reserved to European political parties (same agenda in every State), as part of the idea of transnational democracy. However, this proposal was rejected. As the EU loves complicating issues that are already complicated, the EP is located both in Strasbourg (once a month, for a plenary session, as planned originally in the Treaties) and Brussels (because the EP needs to work close to other institutions). In theory, MPs are elected according to the national rules. However, the Treaties specify that, somehow, the representation has to be proportionate. Unusually, both the passive franchise (i.e., requirements needed to be elected) and the active franchise (i.e., requirements needed to vote) for the European Parliament and the local Administrative Elections are granted to every eligible EU citizen regardless of the Country they are living in (thus, an Italian who lives in Paris is eligible to vote for – and be elected as – the Paris’ Major and for the EP). From a conceptual viewpoint, this is quite an important provision, strengthening the idea of a transnational democracy: the Treaty actually gives voting rights to constituencies that usually are decided by the States in the sovereignty. Indeed, the fact that States agreed (within the Treaty of Maastricht) that European and local franchise could be determined at treaty level, was a very big step. Moreover, Member States are seated according to a digressively proportional representation, in order to rebalance the disparities in population between EU Countries (and balance demography and democratic principles). Indeed, if Malta and Germany had to be represented purely proportionally, the former would have extremely few MPs, whereas the latter would be overrepresented. For this reason, the Treaty establishes a minimum floor (6 MPs for Malta) and a maximum ceiling (96 MPs for Germany). Within these thresholds, however, the representation is proportional. Despite the MPs being elected according to the national franchise and to the national rules (in Italy for instance, those who can vote for Local elections, can vote also for the EP), the elections influence the composition of a European supranational institution: that is why a number of rulings have restricted the discretion of Member States. For instance, consider the ECtHR Matthews decision. Ms. Matthews was a Brit living in Gibraltar (part of the British territory), which 14 See art. 14 TUE. 20 Notes on European Union Law is a highly contested territory. At that time, an agreement between Spain and the UK provided that residents in Gibraltar could not vote for the European Parliament (despite most of EU law being perfectly applicable there). Then, Ms. Matthews raised the case before the ECtHR15, complaining this was not democratic, and the Court agreed, basing on the fact that both the EP and, more in general, the EU are based on democratic principles: the UK could not disenfranchise citizens in Gibraltar. Later, the ECJ also decided on these kinds of issues: for instance, consider Eman and Sevigner (C-300/04) and Delvigne (C-650/13), where the ECJ16 confirmed the validity of a French law that prevented prisoners from voting. Finally, every MP sits according to his/her political affiliation. What does the EP do? Now, its greater role is to act as a co-legislator: in fact, the EP must agree basically on everything to pass a piece of legislation. We then have pretty much of a bicameral system: the Council of the EU and the Parliament have to agree on the same draft before it can become law. Also, the crucial power of approval of the EU budget (that is administered and proposed by the Commission) is within the competences of the EP: quite a lot of negotiation (between the EP and the Council) always happens around the budget approval. Moreover, the Parliament elects the President of the Commission, whose name is proposed by the EU Council (thus, the election basically is reduced to a yes/no decision). The treaty provides that when the EU Council decides on the name of the person, it should take into account results of EP elections. When the Juncker commission was formed, the EP tried to get (as it always does) more power: the two main political groups (that are EPP and S&D) of the EP decided to have the so-called Spitzenkandidat (i.e., leading candidate) before the election. In this way, the Commission’s President would have had indirect democratic accountability. This was not provided in the treaties actually, but, after all, the EU Council could do nothing to stop it: reluctantly, it was practically forced to nominate Juncker (the leading candidate of the most voted party). However, due to the lack of a clear winner in 2019 Parliament elections, the EU Council managed to regain its power, and chose Ursula Von der Leyen, thus ignoring the parties’ Spitzenkandidat. The EP also approves the European Commission as a body and can make it resign as a body (although this power has never been used). Despite not approving each Commissioner, the EP started to audition potential members put forward by the President of the Commission (again, as a power that the EP has allocated for itself). This, by the way, led to a debacle related to Mr. Buttiglione’s statement that gay people were sinners (a curious position for a Human Rights Commissioner). That being the case, it is noticeable that Treaties and actual politics differ a lot: the EP has been eager and capable to exercise its powers in a broad and effective way. Finally, the EP has its own supervisory powers, including the possibility for the EP (as well as for the Commission) to Trigger the proceedings provided by Article 7 TEU, against a Member State, when there is a serious risk of violation of Art. 2 Values or persistent and serious breach thereof. The EP is also crucial because is the place where things are debated (if not necessarily decided) publicly, giving floor also to criticisms and public scrutiny. Indeed, during the Brexit negotiations, the EP had a vital role to give a voice to European citizens residing in the UK. Moreover, the EP also analyses petitions put forward by Citizens and proposals of legislations through the so-called Citizens’ initiative (i.e., a bottom-up approach), although it has not been successful, due to really strict requirements (at least 1 million citizens from at least 7 MSs are needed). Finally, we shall analyse the role of the European Commission. First of all, we may read what Article 17 TEU provides: 15 Note: Ms. Matthews could not do it before the ECJ, as she was challenging a piece of primary legislation (i.e., a Treaty), whose validity cannot be disputed before a Court according to European Law. 16 The decision was deferred to the ECJ as, as part of the general voting rights, active franchise was included, thus making it EJC business. 21 Notes on European Union Law The Commission shall promote the general interest of the Union [thus, it does not represent Member States!] and take appropriate initiatives to that end. It shall ensure the application of the Treaties [it is considered to be the guardian of the Treaties], and of measures adopted by the institutions pursuant to them. It shall oversee the application of Union law under the control of the Court of Justice of the European Union. It shall execute the budget and manage programs. It shall exercise coordinating, executive and management functions, as laid down in the Treaties. With the exception of the common foreign and security policy [that is done by the High Representative for Foreign Affairs and Security Policy], and other cases provided for in the Treaties, it shall ensure the Union's external representation. It shall initiate the Union's annual and multiannual programming with a view to achieving interinstitutional agreements. Union legislative acts may only be adopted on the basis of a Commission proposal, except where the Treaties provide otherwise. Other acts shall be adopted on the basis of a Commission proposal where the Treaties so provide Article 17 tells us practically everything we need to know about the Commission. First, the EC pursues the interests of the Union, which means it is a Supranational Institution (i.e., it does not execute the will of the single States). Moreover, being the watchdog of the correct application of EU law, it is up to the EC to decide whether to initiate infringement proceedings against the Member States in front of ECJ. Also, it executes the budget of the EU: as we shall see, this endows the Commission with huge powers, also in relation to the Recovery Fund17. Another crucial role of the Commission is the one related to external relations and representation. When talking about the Commission, we refer to its President and College of 27 commissioners (including the President)18. The EC is also supported by a civil service (made of both its own official and national ones posted to the Commission, in order to better cooperate). How does the President get appointed? We have seen it: the European Council proposes a candidate (taking into account the results of the Parliament elections), decided by QMV (although it usually happens by consensus), who gets elected (better: approved) by the EP with majority voting; then, the Council of the EU (in its General Affairs composition), accordingly to the wishes of the President-elect, proposes the list of Commissioners basing on a list of (up to) three people19 sent by each State. The President-elect and the Candidates get auditioned in front of the EP, that eventually will vote on the Commission as a whole. Finally, after approval, the Council of the EU formally appoints the Commission by QMV. A worth-mentioning possibility, introduced after the so-called Santer commission scandal, is that the President can request resignation of Commissioners. The Commissioner Edith Cresson, in fact, had given her dentist a lot of important jobs: however, at that time, Santer could not force her to resign, thus causing the forced resignation of the Commission as a whole (1999). Therefore, when the Treaty were reformed, the President was finally given that power. Thanks to that, in 2020 Ms. Von der Leyen was able to make the Irish commissioner Phil Hogan resign after he had broken the Covid isolation rules. Finally, the President is responsible for setting the agenda of the Commission, presented to the EP during the State of the Union Address (see infra). The College of Commissioners, on its turn, has adopted a complex internal structure since the Juncker Commission, due to the elevated number of its component members, in order to be more efficient. Therefore, the President is assisted by a close circle of (8) Vice-Presidents (three of which 17 Indeed, in order for States to get the funds, they have to propose a plan to the Commission, who has the power to approve or reject it. 18 As we have mentioned before, there should be only 18 commissioners (2/3 of Member States). However, none of the small member states agreed not to be represented (so-called Irish Concession). Actually, this is quite contradictory: whereas the EC should only represent the Union as a whole, it is still composed by one Commissioner per State, making the Commission more distant from a pure Supranational body. 19 The number is also functional to having a gender balanced Commission. 22 Notes on European Union Law are Executive VP, and one sits ex officio being the High Representative for Foreign Affairs and Security Policy). Commissioners have to be independent experts, and their term lasts 5 years. They can be removed in different ways: as a consequence of an EP motion of censure (that causes collective removal of the Commission, but it requires extremely high majorities20), resignation (as it happened to the Santer Commission), inability to fulfil the conditions for the job (see Art. 245-247 TFEU), serious misconduct and resignation upon request by the President of the Commission (as it happened to Mr. Hogan, see art. 17 TFEU), with a special procedure for the High Representative. The Commission has the monopoly over legislative initiative, which is an extremely crucial power: this monopoly is highly contested by the EP, also because such an exclusive power is really peculiar in this kind of institutions. Moreover, it has a significant political role, as it sets the European agenda, develops its policy strategies and decides how money is spent. Finally, it is endowed with executive (it enacts European norms in specific fields, manages the budget – both a political and executive function – adopts implementing measures and delegated acts by EP and the Council, and negotiates with third countries) and supervisory role (it overlooks the correct application of EU law by MSs and by private parties in the field of competition law). This very last function is indeed contested, as the Commission is both the investigator and the sanctioning body. A question that could be raised in relation to the very nature of the Commission, on whether it is a democratic or a technocratic institution. Although Members of the Commission are proposed by Member States (through the Council), it is in theory technocratic. Back when it was created, it surely was: the idea was that a technocratic Commission (rather than a political one) could really do what was the best for the EU; the Parliament (i.e. the European democratic institution par excellence), in fact, was not even involved in the appointment procedure of the Commission. Now, instead, the Parliament, is involved, although with a limited role. Hence, the nature of the Commission is now a bit of a mix: whereas in theory it is a technocratic institution, it has also a strong element of political influence (for instance, the European Council has to choose the President taking into account the results of EP elections, pursuant to TEU). That being said, is the Commission democratic? Well, it is not democratically elected, but it is rather approved by a Democratic Body. However, this is based on the principle of take it or leave it; moreover, the Parliament cannot make a single commissioner resign; thirdly, the Commission should represent the EU, and not its citizens (who are represented, instead, by the Parliament). Indeed, there is not the usual relationship between people and elected bodies: therefore, we could say the Commission is not as democratic as normally Governments are. Neither it is indirectly accountable, as this is a feature that is recognised to the Council and the European Council, which are formed by members of the Government who are accountable to their national Parliament. Of course, this comes with drawbacks: whilst it is supposed to be technocratic, it is de facto asked to make political decisions (for instance, approving or rejecting the Recovery Plans cannot be just a “technical” issue, but is endowed also with political elements); moreover, a technocratic Commission can also be seen as distant from the citizens. Conversely, a concretely more political Commission would be considered as a move towards a federal State. Focus On: The State of the Union Address (2021)21 As every year, in September, the President of the European Commission Ms. Ursula Von der Leyen addressed the European Parliament with the State of the Union, in a debate over priorities (what they intend doing) and achievements (what they have done) of the Commission. It is a key occasion 20 That is: 2/3 of votes cast and the majority of MPs. 21 It is possible to read and hear it at: https://ec.europa.eu/info/strategy/strategic-planning/state-union- addresses/state-union-2021_en 23 Notes on European Union Law to hold the Commission to account before the Parliament. Not surprisingly, Ms. Von der Leyen mentioned some achievements concerning vaccination, the recovery fund, the green deal, and social rights. Then, as for the priorities, of course the health emergency (namely, speeding up European and global vaccine roll-out) remains a key priority for the Commission, as well as the economic recovery of the Member States (as always, some aspects about economy are mentioned). Most importantly, though, Ms. Von der Leyen spoke about the main challenge for the future: making Europe fit for the digital revolution. Moreover, she addressed the theme of the European social dimension (a strongly debated topic22), referring to some raising policies (such as the European minimum salary). Of course, the climate crisis was also touched by the EC President (with the European Green Deal and the Social Climate Fund to fight energy poverty), as domestic legislations and policies are clearly not effective. Obviously, the Afghan crisis was also one of Von der Leyen’s main points: EU has indeed to define its policies, basing on its values and on what it wants (better, we want) to be, and one of the main concerns is whether to establish or not a European Defence Union (i.e., equipping the EU with some sort of military forces)23. This last issue is also connected with the role of the EU as a global actor, thus involving strategic autonomy, stability, and cybersecurity. Furthermore, the theme of migration was once again present in the speech: the EU has not found an agreement yet (although – according to the Treaties – migration is a topic that can be decided with QMV, a subsequent political agreement has established that it would have been decided by unanimity and consensus). Finally, the last big challenge of the EU is the Rule of Law crisis: at the moment, two member States (i.e., Poland and Hungary) are going – by their own definition – towards autocracy, sliding off the democratic scale. What causes the challenge to be that hard is the impossibility to kick a Member State out of the EU. The only possibility would be Poland voting in favour of sanctioning Hungary (and vice versa), which obviously will not happen. This also has practical implications as for the single market: if a State has a corrupt judiciary, (economic, as far as the EU is concerned) controversies will not have a solution, as they cannot be brought before a Court. The Von der Leyen commission, nevertheless, tried to circumvent this problem by holding the Recovery Fund money reserved for Poland and Hungary, trying to force them to comply with the European rules (although they are, by the way, conditions to join the EU and not to stay in the EU). The Competences of the EU Kinds of Competences We will now analyse the competences of the EU: that is to say, when the EU can act and adopt certain measures. To do that, we will consider the principle of conferral of powers (when the EU can act), the types of competences (which means the EU can act with) and the legal basis (why the EU can act), so as to understand the existence and the scope of EU competences. Finally, we will mention two cruci

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