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Structure, Institutions And Constitutional Limits Notes

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EU 1 Limits

Structure, Institutions and Constitutional

STRUCTURE, INSTITUTIONS AND CONSTITUTIONAL LIMITS TO LAW-MAKING IN THE EU Abbreviations: ECJ European Court of justice MSs Member states (of the EU) EP European Parliament CFSP Common Foreign and Security Policy TEU Treaty on EU (Maastricht) TFEU Treaty on the Functioning of the EU (Rome)

HISTORICAL DEVELOPMENT Integration theories

1. 2.

3. 4.

Functionalism: 1950s - positive prevention of war by getting states to cooperate in economic ventures Neo-functionalism: late 1950s - [Haas] - starts from economic/technical sector cooperation, but spills over to political sectors leading to a reduction of national govts' powers. Liberal intergovernmentalism: 1980s - states are key actors, not supranational institutions. Going beyond the supranationalism-intergovernmentalism dichotomy: late 1980s - look at EU as an entire system of multi-level/network governance. Consider greater range of institutions (not just states and supranational institutions, but also subnational, infra-national, public and private entities).

European Integration

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**Push factors for integration:
During the war, Resistance movement supported unity, rather than destructive nationalism
USA's 1947 Marshall Plan for financial aid for Europe needed formal cooperation mechanism between European states for distribution
Need economic competitiveness as against other post-war emerging economies. 1949 Statute on the Council of Europe: provided for Committee and Parliamentary Assembly. Council produced ECHR (signed in 1950). But UK was anti-integration. Schuman, French foreign mininister, proposed European Coal and Steel Community (1951) - pool French/German coal and steel for peaceful cooperation; avoid wars. Treaty signed by France/Germany/Italy and Benelux.
He was motivated by aftermath of WWII, when there was a general feeling that war was result of excesses of the "Nation-State/nationalism". Hence wanted to limit the power of the state.
Earlier attempts were on basis of inter-governmental treaties, rather than spur-national treaties (eg. Council of Europe) - MSs didn't want to give up autonomy.
The ECSC Treaty 1951 was supranational - created institutions in the process, with power to make MSs do things they didn't want to do. Also had court to enforce decisions against MSs. Possible only cos there was clearly defined concrete goal, being that of sectoral integration limited to coal and steel, hence MSs were assured that they weren't committing to too much. But France didn't want German rearmament as suggested by UK. Instead, it wanted European Defence Community. Plans for European Political Community drafted in 1953 but France's national assembly rejected it. France also rejected proposals for a European Defence Community.
hence, went back to approach of progressive unification in the economic field. EEC and Euratom Treaties
Spaak, Belgian PM then, pushed for integration, eventually resulting in the European Atomic Energy Community and European Economic Community
Politically motivated, but focused on economy.
twin objectives of developing atomic energy for peaceful purposes and establishment of European common market (free movement!)
EEC Treaty (now known as the EC Treaty) and the Euratom Treaty were signed in Rome on 25 March 1957.

EU 1 Limits

Structure, Institutions and Constitutional--

Impact? Good idea, but MSs were overly optimistic, projecting 10 years for completion of common market/integration.
impeded especially by fact that everything in EEC had to be decided upon by unanimity, at that time.
the EEC Treaty itself provided for a change to qualified majority voting. But General De Gaulle opposed the change, saying that if vote were to be held, French rep would leave the room. This was termed the empty chair crisis.
eventually, negotiations resulted in the Luxembourg Agreement, where countries decided to continue using unanimity in fact, even though Treaty intended them to use qualified majority voting. (all this fiasco was during 1965-66) Merger Treaty of 1965: merged Parlt, Court of Justice, Council of Ministers and Commission for ECSC/EEC/Euratom. Before this, the 3 communities had only shared the Parlt and Court. Reduced legislative autonomy of Comm, requiring Council to give approval for proposals. After De Gaulle resigned in 1969, UK's application for membership was accepted in 1973 (and Ireland's and Denmark's). Greece joined in 1981.
also, the Hague Summit happened, where all heads of state/govt congregated to discuss and agreed that things in EEC had to change. Became a periodical summit!
First enlargement was in 1973 - Denmark, Ireland and UK acceded!
In 1979, first direct elections to the European Parliament. TENSION: intergovernmental (De Gaulle) vs supranationalINTERGOVERNMENTAL TENDENCIES

Led to Luxembourg Accords, following the 'empty-chair' policy that De Gaulle came up with.

Accords: France said even if Treaties allowed majority decision making, must keep discussing until you get unanimity wherever there's important national interests. Others said Council should just have to try to reach solutions adoptable by all within reasonable time. In fact, France's view prevailed - return to intergovernmentalism with primacy on individual states' wishes.

European Political Cooperation (1973): intergovernmental forum for cooperation in external foreign policy - increased external unity but encouraged intergovernmentalism.

European Council (1974): biannual summits for heads of govts - weakened supranational elements? Though findings not formally binding, still, formed framework within which binding Community initiatives were pursued.

[Dankert] is of the opinion that Luxembourg Accords made the Commission too intergovernmental, subsequently limiting the Parlt whose power was derived via the Commission. Exacerbated by creation of European Council.SUPRANATIONAL TENDENCIES

1976: direct elections to Parlt - first round in 1979. But [Holland] says electorate thought these weren't much different from national elections, insofar as national issues were discussed. Low turnout!

1969: funding from Community's resources, not national contributions - financial independence

ECJ's contributions: sanctioned broad reading of Art 308 EC and increasing Community's sphere of competence; doctrine of direct effect (1960s-70s); supremacy of Community law over national law helped too!

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Single European Act (1986)
Background: Commission was often stalled by Council. Various reports (Tindemans Report, Genscher-Colombo plan etc) urged radical reform. But after summit of 1984, Adonnino Committee and Dooge Committee were established.

Adonnino Committee to look at European identity, Dooge Committee to look at political reform.

Led to an intergovernmental conference to discuss Treaty amendment, producing the SEA.

EU 1 Limits

Structure, Institutions and Constitutional

*New momentum came with the entry into force of the Single European Act in 1987, which amended the EEC Treaty. Institutional changes: Increased Parlt's legislative power - created new legislative 'cooperation' procedure. Formalised 'Comitology' procedure, whereby Council delegated power to Commission on certain conditions. Substantive changes: set out internal market aim; (re)introduced qualified majority voting in many areas, most importantly that of enacting measures to achieve the single market; added new areas of Community competence. Weiler thought the changes were significant and good - increased efficiency in legislation, helped Commission achieve the political role that the Treaty of Rome had intended for it to have and kick-off fulfilment of Community's economic objectives

Maastricht Treaty/Treaty on European Union (1992)
Main difference: 3-pillar structure.

First Pillar: EEC/ECSC/Euratom Treaties; Second Pillar: Common Foreign and Security Policy; Third Pillar: Police and Judicial Cooperation in Criminal Matters

2nd and 3rd pillar provided mechanism for cooperation in these sensitive areas, but without MSs having to give up all national sovereignty - still intergovernmental.

Unanimity still required for 2nd/3rd pillars.
Institutional changes: allowed EP to block legislation, according to a co-decision procedure. EP could also request Commission to initiate legislation, and block appointment of new Comm.
Substantive changes: concept of European citizenship, provisions for the EMU, foundation for single currency, extend areas of competence.
note this was a substantive treaty! Not just amendments to the Treaty of Rome.
Curtin thought this structure was detrimental to the Community's coherence and cohesiveness, but it also allowed for flexibility to accommodate inevitable differences.
Entered into force on 1.11.1993.

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Treaty of Amsterdam (1997)
Meant to consolidate, rather than extend, Community powers.
Common provisions were rewritten/added to, according to the principle of openness.
Also, respect for HR, democracy and rule of law became justiciable. In the event of persistent breach, Council could suspend some of MS' rights under the Treaty.
Eliminated cooperation procedure - shift to co-decision: EP's role in decision-making reaffirmed
**Large part of Pillar 3 (Justice and Home Affairs) was shifted to Pillar 1 (stuff on free movement of persons). What was left in Pillar 3 was for security - police cooperation, judicial cooperation, and the prevention and combating of racism and xenophobia. ECJ has limited jurisdiction over some of Pillar 3 as well!
Recognition that there could be differentiated integration - different deg of cooperation.
Text was agreed on and signed on 2.10.1997, but only entered into force on 1.5.1999.
NB: Euro introduced as single currency in 11 members states, from 1.1.1999.

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Nice Treaty (2000)
Particularly fractious Council summit! Follow up on Amsterdam Treaty's failure to bring institutional changes for enlargement (2004 saw ten states joining - mostly Eastern Europe)
EP's power strengthened - co-decision procedure was extended to more provisions.
Issued Laeken Declaration saying that certain broader questions had to be reconsidered:

1. Elimination of competences - some MSs felt EU was taking over too much

2. Simplifying treaties

3. Status of the Charter - should EU have its own Bill of Rights?

4. Role of national parliaments - losing out cos it is govts which get to vote/represent.
these issues were set as the agenda for a Convention on the Future of Europe

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Constitutional Treaty (2001)
Nice Treaty purposely left 4 issues to be considered at the Laeken Council meeting. Over time, states realised just the 4 issues would be too restrictive - need to rethink fundamentals of the

EU 1 Limits

Structure, Institutions and Constitutional

EU. Also, discussion needed legitimacy by greater involvement (input from broader constituency). Hence, Convention had reps from national governments/parliaments, EP and the Commission. Creating a Constitutional Treaty was not pre-decided, but the idea gained momentum from Sept 2002 after Giscard d'Estaing, the chairman, announced his plan during the opening ceremony

Huge significance! There was referendum on the matter in almost every European country. But failed... IF it had become binding/had passed:

There would have been only one document, subsuming both EC Treaty and TEU.

Would also have made Bill of Rights binding as part of the constitution.

Would have abolished pillars. No distinctions anymore and everything would have been subject to supranational integration.

Would remove label of the European Community (EC), leaving only the "EU"

Use of constitutional language was one of the factors leading to failure. The people not prepared to approve it; common perception that a super state was being created.

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Lisbon Treaty
MSs didn't want to give up on the Constitutional Treaty despite its failure in France/Netherlands. Hence, came up with Lisbon Treaty which basically was a very similar rehash of the Constitutional Treaty.

But while the Constitutional Treaty would have done away with the earlier treaties, the Lisbon Treaty was just an amendment

Left the TEU and Treaty of Rome standing.
Changes:

EC Treaty renamed Treaty on the Functioning of the European Union (TFEU)

Union got single legal personality, and 'Community' replaced by 'Union'

Constitutional terminology ditched to get past political obstacles!
Was pushed through very quickly cos mostly on things already debated on for the Constitutional Treaty, but couldn't be too open about this since the Constitutional Treaty had already been rejected - had to make cosmetic changes.
Not built upon pillar system, but still had distinct rules for CFSP (3rd pillar) - ECJ still excluded mostly, and executive authority remains with the Council and European Council.
Also, no more EC, only the EU left. EU has stronger features of what used to be EC law supranational law is now the general rule.

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EURO AREA SOVEREIGN DEBT CRISIS (global financial crisis from 2007-8)
Problem arose with the Economic and Monetary Union: has its own currency and monetary policy, covering 17 MSs which are part of the Euro Area.
The sovereign debt crisis

States continuously borrowed money from markets, by offering bonds to investors.

Debts matured and investors started thinking that the state was not a good investment and might go into default. They saw the state as a higher risk investment, hence required higher and higher interest rate for incentive to land money to state.

Eventually, state couldn't afford increasing interest rates - hence defaulted on loans.

Everyone sharing one currency, hence there is contagion (started with Greece but spread)
Legal underpinnings of the EMU:

State usually controls its own monetary policy (money supply/currency/interest) through its central bank, and its fiscal policy (taxes/debt/expenditure)

EMU separates monetary policy from fiscal policy, leaving latter to be controlled by states, but with European Central Bank controlling the former.

But states' sovereign debts have to be kept within limits (Stability & Growth Pact).

However, this Pact was not properly enforced - states spent too much.

PROBLEMS:

Euro was seen as strong currency, so markets were happy to lend states more than they would actually have been able to borrow on actual strength of economy.

EU 1 Limits

Structure, Institutions and Constitutional

Common currency meant all states were exposed to potential default of a few. Since ECB/EU didn't control fiscal policy, it was difficult to address the crisis quickly.

Stronger states also unwilling to lend to weaker states, cos couldn't control what latter did with money. Bailouts are only a temporary solution. In long term, must address asymmetry between centralised MP and decentralised FP! Either decentralise MP (destroy Euro) or centralise FP (further fiscal integration). Hence, Six Pack was signed (measures to strengthen growth and sanctions against breach). Also, the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union was signed by all MSs except UK and Czech.

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