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European Integration, Law-Making Institutions and Legal and Constitutional Limits on
European Law-Making Notes
What is European integration and why is it important?
European integration refers to Member States integrating more in to the EU institutional model, ultimately losing national decision-making power at a national level in favour of shared decision-making, shared laws and shared political and legal systems.
This in turn has consequences for questions relating to the nature of the EU: does it merely manage the interdependence of Member States, or does it function as though it were itself a state.
The extent of integration changes over time as the Treaties are amended, this can be seen by looking at a timeline of EU integration:
Post-World War 1
The post WW1 approach to European integration was characterised by functionalism.
Functionalism refers to the idea that societies depend upon one another and thus there should be integration on all matters
Issues arise with this idea due to cultural differences
1919: Treaty of Versailles
This sought to eco nomically punish Germany for its actions in WW1, and
Germany ultimately dropped in to an economic depression, causing a rise in political extremism 1920: League of Nations
Post WW1, the League of Nations was founded in an attempt to curb further instances of political extremism, through discussing big concepts such as peace
This was an example of functionalism - it tried to tie together the relevant states by getting them to agree on the big and important issues
This ultimately failed, because getting a large number of diverse cultures to agree on fundamental ideas such as peace is not going to be successful
Post- World War 2
After the obvious failures of the post-WW1 functionalist approach, European integration became premised on neofunctionalism.
Neofunctionalism advocates for co-operation on the easy issues, which ultimately leads to a spill-over on the difficult issues
Craig (2011) distinguishes between two forms of spill-over:
Functional spill-over - this occurs based on the interconnectedness of the economy: integration on one sphere will create pressure for integration in other areas
Political spill-over - this occurs where political pressure builds up in favour of further integration within the states which are involved
This takes place as interest groups realise where decisionmaking power is on certain issues, and thus focus their lobbying there on other issues.
1950: European Convention on Human Rights 1950s: Eurovision
People vent their anger in a song context and then they don't do more dangerous things
This is neofunctionalism at work - engage in co-operation on harmless things (a song contest) and this will lead to co-operation on more dangerous things 1952: Treaty of Paris
This created the European Coal and Steel Community 1958: Treaty of Rome
This created the European Economic Community (EEC)
It was composed of the 6 original Member States as a response to the catastrophe of WW2
It has neofunctionalist groundings to the extent that economic integration was a means to a greater ends - it would avoid conflict and political instability
BUT: whilst prima facie it was about economic integration, it was always about more
The first line of the preamble to the Treaty speaks of an "ever closer Europe" and further speaks of the "peoples" (not people) of Europe,
recognising the cultural differences between
Member States 1987: Single European Act
This was the first formal revision of the Treaties
Introduced qualified majority voting
Member States could thus have laws imposed on them which they did not consent to
This meant that legitimacy no longer came from consent, it had to come from the principle of conferral.
o It was primarily concerned with the completion of the internal market by the end of 1992
The primary goal was now to drive the process of economic integration deeper through the creation of a single market 1992: Maastricht Treaty
This created the Treaty on the European Union, which was concerned with the creating of an economic and monetary union
Conditions on economic union were inserted into all other treaties
It saw the expansion of EU competence into asylum, immigration, criminal justice and civil justice This represents patterns of interdependence which are characteristic of the modern EU
o Conferral was introduced - the EU shall only act within the power conferred on it
NOTE: all the negotiations at this Treaty was about subsidiarity, and conferral was an afterthought 1999: Amsterdam Treaty
2003: Nice Treaty
This was massively significant as it sought to establish a constitution
Whilst the changes were not particularly far reaching, the very language of introducing a constitution was significant
The desire here was to shift the focus of the EU to constitutional design and away from international institution
However, both the Dutch and French voted no in referendums and the Treaty died 2009: Treaty of Lisbon
This created the Treaty of the European Union (TEU) and the Treaty on the
Functioning of the European Union
This was something of a recovery mission in light of the failure of the
It was similar but not the same as the constitution envisaged in the Nice Treaty.
What are the different European law-making institutions?
The key institutions involved in EU law making are:
The European Commission
The European Council
The European Parliament
The Court of Justice of the European Union
NOTE: there is no traditional separation of powers in the sense of dividing up the executive, judicial and legislative functions as Montesquieu envisaged them
These institutions can perform a combination of the three functions
BUT: it is not accurate to say that there is no separation of powers - the extent and form of the separation is just different to a normal understanding
Davies (2006) has critiqued the CJEU's hearing of competence cases on the grounds that there is a structural bias.
Given that the CJEU is an EU institution which is instructed with tasks of the EU,
there is a conflict of interest
It is faced with a conflict between: (a) constitutional imperative to be neutral between Member States and the EU, and (b) the law which gives shape and existence to their court and their jurisdiction, which is much more one-sided
BUT: how problematic is this in practice? Do any cases suggest this conflict as causing any problems? Is it problematic in a context where there is no traditional separation of powers?
What are the legal limits on European law-making?
The system of Union competences describes exactly which powers the EU possesses and the manner in which it should exercise them
Article 4(1) TEU
In accordance with Article 5, competences not conferred upon the Union in the Treaties remain with the Member States
Article 5 TEU
1. Limits of Union competences are governed by the principle of conferral. Use of Union competences is governed by principles of subsidiarity and proportionality.
2. Under the principle of conferral, the Union will only act within the limits of the competences conferred upon it by Member States in the Treaties to attain the objectives set out therein
It is fundamental to the EU that the EU institutions do only what the Treaties allow them to do and nothing more - the competence of the EU is limited to that which is conferred upon it by the Treaties and thus ratified by the Member States.
It is not open to EU institutions to extend their own competences, this is left to the
Distinction must be drawn between two types of law:
(a) Positive harmonisation - the imposition of common rules
(b) Negative harmonisation - the removal of barriers
The EU is given a number of 'sector-specific' legal bases, however the main competences for our purposes are its functionally-driven competences found in Article 114 TFEU and Article 352 TFEU
(i) Article 114 TFEU
Article 114 TFEU:
The European Parliament and Council shall, acting in accordance with the ordinary legislative procedure … adopt measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market … This gives the EU the ability to legislate where existing rules impeded on the operation of the internal market. This then allows the EU to supersede diverse national rules which are inhibitive - EU rules can better aid the functioning of the internal market. Pre-exiting national rules often act to the internal market's detriment.
The overall logic of Article 114 TFEU is that harmonised rules create a more intensely integrated market.
However, this competence is not unlimited - in Tobacco Advertising, the CJEU took the view that harmonising the rules in the tobacco market did not improve the functioning of the internal market; it subsequently accused the EU of using the internal market as a mask to promote public health matters
Facts: A tobacco advertising directive was challenged on the grounds of its failure to comply with the Article 100a (now Article 114 TFEU) competence.
Held: The CJEU held that an outright ban on tobacco advertising could not be justified under Article 114 TFEU
o While the EU had the competence to prohibit advertising of tobacco products in newspapers as a means of eliminating obstacles to free movement of advertising media, this could not be said for various other types of advertising of tobacco products (including things such as posters, parasols,
The CJEU found that the EU had stepped beyond the harmonisation competence granted by the Treaty - Article 114 TFEU did not provide a general power to regulate the internal market.
To read the Treaty in this way would be contrary to its express wording
Measures adopted in the basis of Article 114 TFEU must genuinely have as their object the improvement of conditions for the establishment and functioning of the internal market
Further to this, merely finding disparities between national rules is insufficient to invoke Article 114
This only shows an abstract risk of obstacles to the exercise of fundamental freedoms or the distortion of competition.
Wyatt (2009) has argued that while it is true that restrictions were placed on EU's competence in Tobacco Advertising, it was not as stringent as it first appears -
The CJEU refused to dismiss Germany's claim that recourse to Article 114 TFEU was not possible where the 'centre of gravity' of the measure is focused not on promoting the internal market, but rather something else (public health protection in Tobacco Advertising).
o Thus, contribution made by harmonisation to the internal market need not comprise the main objective of the measure in question.
NOTE: This appeared to be utilised by the EU later on, notably in Inuit which was largely based on protection of animals. This is strongly supportive of EU competence to regulate the internal market.
The CJEU does not refer to any requirement that obstacles to trade posed by the lack of harmonisation need to be appreciable, nor that, where the EU legislator is relying on future obstacles to trade resulting from divergent development of national laws, that the obstacles to trade envisaged need to be substantial
Do subsequent decisions comply with the court's insistence in Tobacco Advertising that the
Treaty Confers no general power to regulate the internal market?
It can be argued that the strong position in Tobacco Advertising has been departed from in later cases.
The argument can be made that the CJEU has permitted EU institutions to make rather liberal use of the powers conferred under Article 114 TFEU for purposes which have only a slight connection to the completion of the internal market
Swedish Match - a directive prohibiting the placing on the market of oral smokeless tobacco was upheld on the basis that, due to health concerns, sales bans had already been adopted by three Member States
This was detrimental to the establishment and functioning of the internal market due to this heterogenous development, which constituted an obstacle to free movement
The public's growing awareness of dangers to health as a result of the consumption of tobacco meant that Member States would likely reflect that development in prohibiting its sale, constituting an obstacle trade
The issue in this case, clearly answered in the affirmative by the CJEU, was whether or not prohibiting a certain good across the EU did actually contribute to the functioning or establishing of the internal market, despite it preventing movement of goods.
Alliance for Natural Health - a directive harmonising national rules governing foods containing concentrated sources of nutrients was upheld
This was on the basis that food supplements were regulated by different national rules which were liable to impede free movement and thus have a direct impact upon the functioning of the internal market
The Commission had received substantial complaints from economic operators regarding the differences between national rules
Tobacco Advertising II - following the annulment of the Directive in the first case, a new Directive sought to ban the advertising of tobacco products in a more refined way, only referring to press, print, media, radio and information society services
This Directive was upheld on the basis of the clear disparity between national laws on tobacco advertising
There was a trend in national legislation towards even greater restrictions - advertising was partially prohibited in 6 Member States and completely prohibited in 4.
The disparities would only increase as a result of increasing awareness of the negative health effects of using tobacco products
These barriers and risks of distortions of competition warranted intervention - the adoption of divergent laws was likely to create incontestable legal obstacles to trade in respect of press products and other printed publications
BAT - the court addressed the question as to whether or not you could reharmonise the rules where they are already harmonised - the argument made here was that you can harmonise once but that you cannot harmonise gain (this argument is also run un Vodafone)
o AG Maduro responded to this by saying that it will take more than one attempt to achieve absolute harmonisation, but this was not to be construed as giving free reign to continually impose harmonisation rules at will
The CJEU instead approached the issue by saying that the states were starting to impose divergent national laws and so harmonisation was needed to prevent future divergence
Vodafone - a Directive was adopted which capped mobile operators' roaming charges between Member States.
o The Directive was upheld on the basis that it aimed to contribute to the smooth functioning of the internal market, in order to achieve a high level of consumer protection, and to maintain competition amongst operators
It is likely that national measures would have been adopted aiming to address the issue of high retail charges - this would have led to divergent development of national laws
NOTE: in this case, the CJEU uncritically adopted the
Commission's impact assessment; AG Maduro on the other hand questioned whether this could truly be considered a measure about free movement of services, particularly given that one is not going to use their mobile phones as much in a different Member State - this possibly suggests that the
Directive was more about consumer protection
Inuit - a Regulation establishing harmonised rules concerning seal products made placing seal products on the market permissible only where they resulted from traditional Inuit hunts and contributed to their subsistence
The regulation was upheld on the basis that its principal objective was to improve the functioning of the internal market, despite the regulation seemingly being concerned with protecting animal welfare
At the time of the Regulation there were clear differences between national laws
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