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CONFERRAL, SUBSIDIARITY AND PROPORTIONALITY FOUNDATIONS OF THE EU Founded as a response to WW2 --- strong desire for lasting peace, secured through greater polictical /
economic co-operation. EEC established by the Treaty of Rome 1958 (TFEU) which expanded on the existing Steel and Coal Treaty 1951 and established a common market founded on four fundamental freedoms --- free movement of goods, services, capital, and persons EU established by the Treaty on the European Union 1992 --- it is a sui generis body --- not purely international, but does not establish a federal state of Europe. TEU did the following:
? Created a three-pillar EU: (i) European Communities; Common Foreign and Security Policy; (iii) Cooperation on Justice and Home Affairs. o New structure allowed for cooperation within new policy areas outside the mechanisms of the Community Treaties (second and third pillars have a greater emphasis on national autonomy, with most decisions made by the Council, comprising of Member States). o First pillar is best described as 'supranational' second and third as 'intergovernmental'
? EU Parliament's powers enhanced: particularly though the introduction of the co-decision procedure allowing Parliament to block proposed legislation in certain areas --- Qualified Majority Voting was extended
? Some criticism that the spilt between the first pillar and the rest created a fragmented structure. Treaty of Amsterdam 1997 and Treaty of Nice 2001: made incremental chances, reorganising the structure of the treaties in light of the enlargement of the EU (ten new MS added in 2004) --- e.g. Nice made changes to the co-decision procedure and the composition of the intuitions. Failed constitutional treaty: this would have replaced the founding Treaties, setting out the institutional / substantive provisions of the EU in a single document. Was abandoned in 2007 in the face of widespread criticism and opposition (including rejection in 2005 Dutch and French referenda). Treaty of Lisbon 2007: Following abandonment of the constitutional treaty, the Treaty of Lisbon was signed --- it did not replace, but amended, the TFEU and the TEU, although it did incorporate many provisions of the suggested constitutional treaty. Only came into force in 2009, following opposition in Irish referenda in 2008 and 2009.
? Institutional changes: European Council elevated to a full Union institution; membership of the European Parliament limited at a maximum of 750.
? Streamlined law-making: o Adjustments to QMV, preventing a small number of large MS from vetoing legislation. QMV also extended (used in more areas) to become standard system --- although unanimity is still required for tax, foreign policy, defence, and social security. o European Council acquired new and controversial powers --- by unanimous vote, it can propose amendments to certain parts of the EU Treaties; previously could only be achieved through Treaty amendment. More controversially, it can make amendments to allow QMV to operate in certain areas previously requiring unanimity.


Legislative procedures: co-decision (now the 'ordinary legislative proceedure') involving the participation of the European Commission, the Council, and the European Parliament, became the standard legislative procedure.
? External relations: EU acquired legal personality (previously held by the EC, but not EU) allowing it to conclude international agreements / join international organisations.
?? ? ?Did it Enhance democracy? Extension of co-decision has made a tangible increase in the Parliament's role in law-making. National Parliaments also given a formal role in law making via submitting opinions on subsidiarity. EU now has broader purposes than the Common Market Arts 2 and 3 TEU show how far the EU has come from its economic foundations:
? Art 2: EU is founded on "the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights".
? Art 3 sets out the aims of the EU: the internal market is now as low as third on the list of aims, with freedom, justice and security for citizens coming above the internal market INSTITUTIONS Principle EU institutions are the European Council; the Council; the European Commission; the European Parliament; the CJEU; the European Central Bank; and the Court of Auditors. European Council: (Art. 15 TEU; 235-6 TFEU): has a broad, non-legislative role, consulting on topical political issues and defining the general policy direction for the EU --- comprises the Heads of State /
government of MS. Council: (Art. 16 TEU; 237-243 TFEU): Comprises ministers of MS (membership changes according to matter under discussion --- e.g. agricultural issue will lead to participation from agricultural ministers).
? It has the final power of decision on the adoption of secondary legislation, exercised jointly with the European Parliament.
? Voting is by unanimity, simple majority, or qualified majority, depending on the Treaty requirement for the particular matter --- unanimity can make legislative progress difficult, so majority voting has now been extended to more areas of EU activity (by treaty amendments in Lisbon / Nice). QMV is a system of weighted votes (from 29 for Germany, France, and UK to 3 for Malta). Loosely proportionate to population, but very political. European Commission (Art. 17 TEU; 244-250): One commissioner for each MS, who must be completely independent, neither seeking nor taking instructions from their governments, and MS must not seek to influence them.
? The Commission acts as a 'guardian' to EU Law, bringing actions against Member States or individuals in breach.
? It formulates policy, proposes legislation, partakes in discussions on the framing of legislation by the Council and Parliament, and performs an executive role, implementing the Council's policy decisions, under delegated powers.

European Parliament (Articles 14 TEU; 223-234 TFEU): Under Lisbon Treaty, by 2014 the number of MEPs will be fixed at a maximum of 750, plus President.
? Originally, participation in the legislative process was purely advisory and consultative - increased, so that now, Parliament's approval must be obtained before legislation can be adopted.
? Exerts control over the executive through its right to approve the Commission and to dismiss the entire Commission. Court of Justice of the European Union (Articles 19 TEU; 251-257 TFEU): Role is to ensure that, in the interpretation and application of the Treaties, the law is observed.
? The Court is not bound by its own decisions, but nevertheless seeks to maintain consistency in its judgments.
? Has used jurisdiction to develop the EU, through ground-breaking decisions, such as establishing the principles of direct effect and state liability, upholding the fundamental principles of the free market and furthering the rights of individuals. LAW-MAKING Legal base: Legal base of a particular legislative measure in the Treaty article conferring the power to legislate in the relevant policy area. Legislative procedures:
? Ordinary legislative procedure (Articles 289, 294 TFEU): Commission is exclusively responsible for proposing legislative initiatives, then the Council and Parliament decide whether to accept them. o Entails two readings of proposed legislation: first reading, EP delivers its opinion to the Council, with suggested amendments, if approved, the measure may be adopted; second reading, EP considers the Council's position (including any proposed amendments).
? Special legislative procedure (Article 298(2) TFEU): Applies in respect of specified areas provided for by the Treaties (e.g. taxation). QMV in the Council under the ordinary legislative procedure, means that no State has a veto to prevent legislation from passing. States must enter coalitions to pass / block legislation, so EU law-making involves negotiation between States. Treaty amendments must be agreed unanimously by every Member State, and because there are now 28 Member States, it is therefore unlikely that any new Treaty amendments will be agreed in the near future. Types of EU Law: The primary sources of EU law are the Treaties and Protocols, the Charter, and the general principles of EU law found in the case law of the ECJ. Secondary sources of EU law are:
? Regulations: directly binding and applicable in all MS, effective immediately without implementing legislation.
? Directives: the objective set out in the Directive must be achieved but MS can choose the method by which the objective is implemented, so giving MS discretion and autonomy.
? Decisions: addressed directly to a particular Member State(s) and binding on that State addressee, but Decisions can now be of a more general nature.

DEMOCRATIC DEFICIT IN THE EU Criticimsmay not make much sense - cannot assess how 'democratic' the EU is, as we have no criteria to measure it against (i.e. it is a unique organisation) --- e.g. the UN does not have such concerns because it is merely an International Body; however, the EU's competence to legislate on domestic issues of MS means it is a different kind of organisation. The problem:
? Lack of electoral accountability: It is argued that there is a "disjunction between power and electoral responsibility" in the EU --- legislative functions are split between the Council, EP and Commission; voters have only a limited way to signal a desire for change in legislative agenda (MEPs are elected, and members of the Council are ministers of MS).
? Executive dominance: The EU is dominated by the executive (the Council and Commission) so transfer of competence to the EU enhances executive power at the expense of national legislatures.
? Lack of transparency: Many EU decisions are made by committees dominated by technocrats rather than the EP; the EU has a very complex legislative procedure and decisions are often made behind closed doors.
? Expanded competence: EU now has significant power over political and social issues that directly affect citizens so should be democratically accountable in some of the same ways as national governments.
? Follesdal and Hix democracy requires contestation over policy and political leadership, absent in the EU, no institutionalised opposition, little opportunity to present policies different to those suggests by the Commission. A key problem is the absence of a party system at EU level, little clear political agenda on EU issues for voters to choose between, EU elections are just national political contests. o RH: if these problems were resolved and the EU was more democratic giving more power to citizens, MS' influence over EU policy would be diminished, EU could become a super-state. Possible answers:
? The EU is not a State and therefore should not be judged by whether it fulfils some utopian vision of a democratic one, and if it is judged appropriately, there is no democratic deficit, though there is a credibility problem.
? The problem might be psychological, rather than institutional - the EU is too different from the domestic democratic institutions that citizens are used to.
? Malone: the EU is not a state and its ability to carry out an essentially regulatory function could be undermined by imposing institutions on it which are, in principle, more democratic . o He argues the EU is a glorified 'fourth branch of government' and should not be democratic in the usual meaning of the term. To impose such would take away its value/effectiveness. The problem is thus a credibility crisis. The solution is procedural, through more transparent decision-making.
? Moravcsik: EU undertakes a 'modest subset of the substantive activities pursued by modern states'. o One issue with EP elections is that they are usually decided on domestic issues. He likes the idea that EU policy-making is largely isolated from majoritarian democratic contests ---isolated policy-makers can correct for a 'bias' inherent in majoritarian democratic contests.
? Menson and Weatherill national paradigms of democracy should not be used to measure the legitimacy of the EU because the EU is not a State; it regulates cross-border issues that states cannot regulate. The effectiveness of the EU is dependent on the Commission and ECJ acting as vigorous


and autonomous institutions. EU's legitimacy should be measured using output legitimacy, effectiveness and the virtues of supranationalism rather than national measures of democratic legitimacy. German Constitutional Court Lisbon [2009]: the principle of democracy in the German constitution does not require the EU to operate in the same way as a state in terms of democracy. It is not required to develop the democratic institutions of a state, but instead should foster transparent / participative political decision making procedures.

How has the Lisbon Treaty helped?
?????Increased the powers of the democratically elected EP and the co-decision procedure is now regular legislative procedure - acts cannot be adopted without the approval of Council and EP. Lisbon has increased the number of areas where this procedure is used.
? Increased political control of EP over the Commission - elects President.?

Introduced a period of prior scrutiny by national parliaments of all EU legislative proposals; allows scrutiny-time and enables them to jointly compel the Commission to review or withdraw legislation. Introduced the Citizen's initiative. LEGAL AND CONSTITUTIONAL LIMITS ON EU LAW MAKING

Art. 5 TEU

1. The limits of EU competences are "governed by the principle of conferral"; the use of EU competences is "governed by the principles of subsidiarity and proportionality."

2. Conferral: EU can only act "within the limits of the competences conferred upon it by MS in the Treaties, to attain the objectives set out therein."

3. Subsidiarity: EU can only act in areas of shared competence where "the objectives of the proposed action cannot be sufficiently achieved by the MS" and "by reason of the scale or effects of the proposed action, [are] better achieved at Union level."

4. Proportionality: the "content and from of EU action shall not exceed what is necessary to achieve the objectives of the Treaties." If an EU act violates any of these principles, the act can be challenged as invalid before the ECJ by a MS or an individual. In the preamble of any act the EU must explain how it satisfies these principles, but such explanations have become increasingly formulaic. CONFERRAL The EU only holds the power conferred on it by MS in the Treaties. EU cannot generate its own powers. COMPETENCE Three types of competence: exclusive, shared, and supporting:
? Exclusive competence: Art. 2(1) TFEU: areas in which only the EU can act. These areas are listed by Art. 3(1) TFEU customs union, competition law, monetary policy (for Member States within the Euro), conservation of marine biological resources, common commercial policy
? Shared competence: Art. 2(2) TFEU: "the MS shall exercise their competence to the extent that the Union has not exercised its competence." In most areas the EU and MS share competence; MS legislation is subject to / limited by EU legislation in that area (e.g. consumer protection).


Supporting competence: Art. 2(5) TFEU: EU can support / coordinate / supplement MS actions in these areas, but cannot supersede MS competence.

COMPETENCE CREEP Particularly broad Treaty provisions are dangerous in that they allow the EU an extension of their competence, allowing them to go ultra vires --- i.e. effective competence control may be absent: Art. 352: The 'Flexibility' clause "If an action by the Community should prove necessary to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting unanimously on a proposal from the Commission, and after obtaining the consent of the EP, shall adopt the appropriate measures." Since the objectives of the EU are very broad (Art 3 TEU1) this is a functional and open-ended provision: Weiler: "it becomes virtually impossible to find an activity which could not be brought within the objectives of the Treaty." However, changes made by the Treaty of Lisbon means this is not such a threat of competence creep as: (i) acts under this section must be passed unanimously by the council (not QMV) and full agreement is unlikely in an enlarged EU; (ii) also requires the permission (rather than consultation) of the EP; (iii) national parliaments must be notified of EU legislation under Art. 352 subsidiarity procedure (see below). Art. 114: the harmonisation clause Gives the EU competence to harmonise any divergent national laws if this would contribute to the establishment and functioning the internal market. E.g. The Unfair Terms in Consumer Contracts Directive was enacted under Art 114 on the basis that there would be no internal market in consumer goods if MS could regulate consumer contracts differently. Dangerous because the argument can be made that harmonising divergent laws in pretty much any area would contribute to the establishment / facilitation of the internal market, so Art. 114 is very broad. Can be used where divergent laws are creating obstacles to the four freedoms / distorting competition. The ECJ has only once struck down an EU legislative act for violating the principle of conferral:
? Tobacco Advertising [2000]: o Facts: the EU enacted the Tobacco Advertising Directive under Art. 114, which meant all forms of tobacco advertising / sponsorship as banned within the EU. Germany argued: (i) directive was really aimed at public health, not the internal market, so breached conferral; (ii) the divergent national legislation on tobacco advertising did not create an obstacle to the internal market. 1 Lists: (i) economic objectives; (ii) protection of the environment; (iii) scientific and technological advance; (iii) combating social discrimination; (iv) promoting social justice; (v) gender equality; (vi) rights of children.

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