Jan Komárek European Institute & Department of Law

1. Neither “United States of Europe”, nor “European Trade Organisation”: The nature of the EU and its legal order Jan Komárek European Institute & Department of Law

2. Various narratives of the European Integration two extremes: 'European Trade Organisation' vs. 'United States of Europe different disciplines' narratives: political science/political theory ("politics") vs. law (and different fields of law – constitutionalists' biases) different "keywords": state, constitution, delegation, control, government... the Q for us: what legal form for what kind of Union? (and implicitly: does the form matter?)

3. Politics explanatory/analytic theories vs. normative theories (some) great controversies: is the EU a political system? what motivates further integartion (the role of state interests vs. supranational institutions) neofunctionalism: Ernst Haas, William Sanholz, Alec Stone Sweet the COM, the ECJ (liberal) intergovernmentalism: Andrew Moravcsik, Alan Milward the Council, IGCs federalism/cosmopolitanism: Jürgen Habermas "the people"

4. Law what legal form does/should the EU have? what kind of (legal) authority? what is the basis for that authority: the consent of the Member States or an agreement among the people(s) of Europe? does Europe have a constitution? does it need one? is there European 'demos'? is the European demos necessary to keep the EU legitimate? (how) can it be established?

5. DEBATE Doesthe EU have a constitution? Doesitneedone?

6. The key moments: the establishment The context: the end of WW2 – end of nationalism? the Marshall Plan for Europe the significance of the Cold War the ideology of the (free-market) rights-based liberalism (GATT 1947, ECHR 1950, UN Universal Declaration of Human Rights 1948) Schumann Declaration 1950: 'Europe will not be made all at once, or according to a single plan. It will be built through concrete achievements which first create a de facto solidarity. The coming together of the nations of Europe requires the elimination of the age-old opposition of France and Germany. Any action taken must in the first place concern these two countries. With this aim in view, the French Government proposes that action be taken immediately on one limited but decisive point.'

7. The establishment The Founding Treaties: only 6 MS: GER, FRA, ITA, BEL, NDL, LUX 1951 ECSC, effective 1952, expired 2002 1957 EEC and Euratom, the Treaty of Rome, effective 1958 the key features: 'determined to lay the foundations of an ever closer Union amongst the Peoples of Europe' four freedoms of the Common Market own institutions for creating and enforcing rules: High Authority (COM), Council, Assembly (EP), ECJ a new and autonomous legal order (is this stated somewhere in the treaties themselves?) – the process of the 'constitutionalisation' of the Treaties

8. Establishing the legal authority of the EU direct effect and primacy: Van Gend en Loos + Costa v ENEL fundamental rights: Internationale Handelsgesellschaft competence(-competence): ERTA

9. Constitutional rhetoric (only?) JHH Weiler: 'critical aspects the Community has evolved and behaves as if its founding instrument were not a Treaty governed by international law but, to use the language of the European Court of Justice, a constitutional charter governed by a form of constitutional law' Case 294/83'Les Verts' – the Treaty as 'the basic constitutional charter' Opinion 1/91 EEA – the same the rise of the EU constitutional scholarship

10. Beyond the 'Integration through Law' strict autonomous legal authority of the EU vs. a rather elusive political authority prevalence of unanimous voting in the Council weak EP (just in 1962 renamed to EP) the 'empty chair crisis': 1965 --- the Luxembourg compromise 1966 little progress in the legislative harmonisation of the rules applicable within the Common Market --- 1979: Cassis de Dijon ruling of the ECJ (Case 120/78) in 1986 the number of the MSs doubled the Single European Act 1986: QMV introduced express competence in social sphere, the environment, ... --- moving beyond the common market paradigm

11. 1992: The Treaty of Maastricht 1989/90: the fall of the Berlin Wall, the collapse of the Soviet Union plans on a further enlargement of the EU: a wider Europe a deeper integration beyond the Common Market? Maastricht: economic and political union, at the price of fragmentation ('Europe of bits and pieces') EMU three pillars, only the first 'supranational', applying the 'community method'; opt-ins + opt-outs EU citizenship co-decision legislative procedure – the empowerment of the EP (versus the lack of interest of European citizens) the first strong reaction from some Member States: Danish referendum; the Maastricht judgment of the BVerfG (and other CCs)

12. 1990s' and 2000's: 2 decades of self-doubt 1997: The Treaty of Amsterdam Area of Freedom Security and Justice: definitely moving from the Common Market paradigm to ...? Treaty re-numbering 2000: The Treaty of Nice preparing for the next Enlargement – institutions 2004: The 'Big-Bang Enlargement' and the failure of the Treaty Establishing a Constitution for Europe: Joschka Fischer's speech at the Humboldt University (Berlin, 2000) Laeken Declaration on the Future of the European Union (2001) The Convention (presided by Valéry Giscard d’Estaing) – Feb 2002 - July 2003 rejected in May and June 2005 in NDL and FRA

13. 2008: The Treaty of Lisbon 'the constitutional concept abandoned' (the EU Presidency Conclusions, Brussels 2007) two treaties: TEU + TFEU BUT: 'old wine in new bottles?' extension of QMV + co-decision with the EP – 'ordinary legislative procedure' simplified procedures to amend the Treaties President of the Council (Van Rompuy) and High Representative (Catherine Ashton) EU Charter + Protocols (UK + POL)

14. 2010-: the crisis of Euro as the crisis of Europe Treaty on Stability, Coordination and Governance in the EMU, December 2011 integration outside the EU? using some institutional mechanisms of the EU multi-speed Europe

15. DEBATE The EU of 27 (or more) cannotwork.