The EU treaties, institutions and decision-making process

1. The EU treaties, institutions and decision-making process International Constitutional Law and Democracy Lecture 24.10.11 Inger-Johanne Sand

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

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

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

5. The EU treaties and institutions : • European Council - heads of state, • ”constitutional” • Council of Ministers - government ministers • legislative / political • (COREPER – member-state permanent representations,) • European Commission - 27 commiss. app. by memberst.govt. • - 26 directorates-general, • - applying EU treaties, initiat.legislation • European Parliament - 751 MEPs, direct elections, • - legislative, budgets, control, • European Court of Justice – 27 judges, app. memb.st. • - autonomous court, applying EU treaties

6. European Council - member states and European • constitutional • Council of Ministers - member states and European • government ministers • legislative, political, • COREPER – member-state permanent representations, - admin., • European Commission - European , • - 27 commiss. app. by memberst.govt. • - executive, - legislation initiative • - decision-making, • European Parliament - European, member states • - 751 MEPs, direct elections, • - legislation, - budgets, • European Court of Justice - European • - judicial,

7. European Council : • - heads of state meeting once every half year, or more, • - consensus, • - the ”constitutional” assembly of the EU, but without constitutional powers, • - treaty changes have to be taken back to each member state, • - member state and European interests,

8. Council of Ministers : • - one minister from each member state, • - meeting regularly, • - political authority, • - legislative powers, with the European Parliament, (co-decision procedure), • - partly qualified majority (internal market), • weighted voting relative to population, • - partly unanimity, and negotiations, • - European and member state interests, • - committees prepare proposals, • - COREPER – between meetings,

9. European Commission: • - 27 Commissioners, proposed by each member state, • - starting after parliamentary election, vote of confidence from EP necessary, • - European (loyalty to the treaties), • - rights to initiatives, - prepares legislation, • - executive decision-making, • - committees preparing initiatives, with member state adm. Representatives,

10. European Parliament (EP) : • - 751 members of the EP, • - elected every 5 years, • - European, (member state) • - political, • - legislative : co-decision procedure, • - budgets, • - vote of confidence for the Commission,

11. European Court of Justice : • - 27 judges, • - proposed from the member states, • - for six years, • - European – treaty basis, • - judicial, • - judicial review of directives and regulations on the basis of treaties,

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

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

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

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

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

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

18. The competence of the Court : • art.263 flw. – direct actions • - cases by EU institutions against member states, (for non-compliance), - or by member states against the EU, • - cases by EU citizens against EU institutions or member states to secure rights by EU legislation, • - cases by corporations in the EU against EU institutions or member states concerning EU law, • Art.267 - preliminary rulings, • - national courts must consult ECJ concerning the understanding of the EU treaties, legislation,

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

20. The Court and the national institutions : • - the relative position of the Court in the EU, • - the Court´s contribution to the aquis, • - the Court and the national courts, • - art.267, • - the role of law in the EU, • - the Court and the national executive and legislative branches, • - the role of law in the EU, • - the democratic problem of the Court´s position?

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

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

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

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

25. Costa Enel, 6/64 – supremacy : • ”…unlike ordinary international treaties, the EEC treaty has created its own legal system. This became an integral part of the legal systems of the Member States.” • ”The Member States have permanently limited their sovereign rights…..” • ”The law stemming from the Treaty….could not…be overridden by domestic legal provisions…..”

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

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

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

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

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

31. Free movement of services, TFEU art.56: • - hospital services, Watts, ECJ C no. 372/04, • - TFEU art.56, and EC regul. No. 1408/71, • - the regulation grants an individual right to such services in any member state, • - when covering of costs is involved, prior authorisation of home state may be demanded, • - such authorisation may only be denied when this can be ”objectively justified”, by general interests, • - ”the risk of seriously undermining the financial balance of social security system” may constitute such interest, • - such reasons must be based on ”objective, non-discriminatory” criteria, which are known in advance, - and requirements of proportionality, • and applied non-arbitrarily, • - and must be dealt with ”objectively, impartially, in reasonable time, and with judicial proceedings”,

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

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

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

35. Areas of EC legislative and policy authority : • - TFEU art.34 and 36, quantitative restrictions, and measures with equivalent effects, • - the internal market, free movement, competition, • - agriculture, • - environment, consumer protection, • Areas in which authority is shared: • - employment, energy, environment, social issues, • - foreign relations, • - regional development, • Areas in which balance lies in Member States • - broadcasting, citizenship, education, health,

36. The power : • The Commission, and what it chooses to focus on, and prepare, • The Council, • Patterns of bargaining procedures, • Single member states right to veto in some cases, or just showing their power in others, • The internal market, free movement, competition: • - TFEU art.34 etc. : all other regulations must comply, or not be in contradiction of,

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

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

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