Eu law Lectures History of the eu

Lecture 4

EU Parliament-

since the time the EUropean institution merged together and gained political ambition and grew inn competences and the way it interacted with citizens, there have been criticisms of democratic deficit within the EU. This democratic deficit was seen as a lack of direct correlation between the will of the societies on the composition and behavior of the EU. Members of EU comm. Ecj are selected at the EUropean level while members of the council of EU are selected on a state level. The council of the EU is considered to lack transparency.

A solution to the issue of democratic deficit was made in the form of increasing the competences of the EU par which represents the interests of the citizens of the EU.

It had no real competences and members were mostly advisors to the legislative process and had no real authority. In 1976, first EU par elections however it was still a bottom tier EU inst. Since the, the EU par has been given more and more competences.

Current legal framework- post Lisbon treaty EU.

• 
  EU parliament is a co-legislator every time the ordinary legislative procedure is initiated.
  
• 
  EU par co-votes on EU budget alongside the council of the EU. It also selects EU ombudsmen.
  
• 
  It exercises political control on EU commission.
  

1. 
   It accepts EU commissioners.
   

2. 
   EU commission must provide information to the EU par. The commissioners are invited by the EU par to answer certain questions in person or in writing.
   

3. 
   EU par has competence to issue vote of no confidence in EU commission. This is the biggest impact an EU inst can make on the daily operations of the EU. A vote of no-confidence forces the EU commission to resign in its current form. A 2/3 vote of no-confidence of EU par is required. The no-confidence motion is initiated 48 hours after the vote has been cast. This is seen as a cooldown period. However, the EU par cannot force a single commissioner to resign, only the whole commission through a motion of no-confidence. Dilemma- why cause a political crisis through the motion of no confidence if only 2 commissioners are inefficient. The EU par does not need to provide a detailed analysis of a breach of law, policy etc. It can just deem the EU commission as being inefficient and forcing them to resign by majority vote.
   

Problem in EU- distribution of places within the EU according to the EU member states.

1. 
   International democratic instit, the composition of the par should represent the interest of the voting population.
   
2. 
   In the case we have parliament members from various member states, how to reflect the difference between population of member states and ensure proper democratic representation of that population.
   
3. 
   The council of EU, 1 person from each country, no organizational problem. However, EU parliament cannot be too big as nothing would be done. The bigger the the parliament, the more accurate it would represent the population, interest political and member states. However, the bigger the par the harder it is to organize. Smaller par is a less accurate representation of electoral preferences.
   

The Treaty of Lisbon= 750 MEPs +1 Chairman of par

After Brexit= 704 +1 Chairman

This is a politically accepted medium between being manageable and big enough to represent electoral interests of member states.

Within this number, we have 2 thresholds

Upper threshold- no more than 96 MEPS.

Lower threshold- no less than 6MEPS.

The actual allocation of seats should be made according to digressive proportionality-not mentioned in treaties.

Digressive proportionality- larger countries are underrepresented while smaller countries are overrepresented. This premise reflects a political standpoint within the EU since the beginning of EUropean integration.

On one end of the spectrum, we have 80 mill while on the other end we have Malta 400k.

Since the very beginning of EEC - we had 3 big states: France, west Germany, and Italy and 3 smaller states: Netherlands, Belgium, and Luxembourg Benelux.

There was a concern that the voice of smaller states would not be heard in the EU. And that there would be a coalition between larger states such as France and Germany.

The distribution is not based on some objective quantitative formula such as a mathematical algorithm, it is the result of a political formula.

Another problem with the EU par- looking at the EU par from the perspective of an active and passive individual voters within the member states.

Malta- 6 MEPs , seat allocated to 70k people

Germany- 96 MEPs, seats allocated to 230k people. Each person represents a bigger number of voters than Malta MEPs.

Germany MEPs require a bigger number of voters to become MEPs than Malta MEPs. In Malta, a vote is worth more than votes in Germany due to the smaller population. This is the cost of a compromised solution of having smaller states overrepresented while larger states are underrepresented.

EU par was initially considered to be an irrelevant inst.

Political squabbles can be seen as negative counterproductive actions. This is a part of a democratic process. The natural consequence of such a political conflict is an individual’s association with certain political interests.

In EU par, we don’t have EU public opinion. The preferences stated during elections are representations of domestic political life and interests of member states.

What happens in EU par represents domestic political struggles.

EU par is not a highly politicized body as there is no way an individual’s direct political vision can be translated into the works the EU is doing through meps. Meps merely represent domestic political life.

The number of people voting in EU elections is generally low. If there is a relatively small number of voters, is the EU par really representing the interests of the people?

Some argue that deciding not to vote is an indirect participation in the democratic process.

If your candidate did not get elected, the candidate whom you did not vote for is not representing you.

Whoever has EUropean citizenship- any citizenship of EU member state- the citizenships cannot be separated.

EU citizens can exercise their rights wherever they are in the EU. A polish resident can vote in EU par elections if they are living there.

Competences of EU par-

1. 
   Political control over EU commission
   
2. 
   Only EU inst which is democratically elected
   
3. 
   Co-legislator whenever the ordinary legislative procedure is initiated.
   

EU Commission-

3 basic groups of interests within the EU, whatever course of action the EU makes is a byproduct of the balance between the 3 groups of interest.

The decision-making process is structured in a way which they can block each other during legislative processes.

Ordinary legislative procedure- default law making procedure. A consensus of both the council of the EU and the parliament is required to pass laws proposed by the EU commission.

It represents the interests of the EU as an organization and legal entity.

There are no division of power as clear as in other democratic countries within the EU. An analogy of separation of powers should not be applied to EU instit. However, the EU commission can be considered a quasi-government and every commissioner is akin to a minister.

Composition- The EU comm is composed of 1 commissioner from each EU member state including the president of the EU comm and high representative of union for foreign policy. Most states do not have 27 ministers and thus an argument arose stating that the number of commissioners is too much.

Each commissioner has a competence. Eg commissioner for budget. Sometimes these competences are forced. Eg commissioner for multilingualism.

During the Lisbon negotiations, the smaller states refused to have a cyclical commission where there would be a commissioner from a particular state only during a certain cycle and the position would move over to another state. Ie Ireland voted against this.

However, each commissioner acts independently from their respective member state and acts in the name of the union and represent the EU as an organization.

EU commission- guardian off the treaties= general label of the commission

How law is made-

1. 
   Commission alone
   
2. 
   Council of EUropean union alone
   
3. 
   EU par and EUropean council acting jointly.
   

EU commission competences-

1. 
   They possess the right to legislative initiation. The commission always is the one who initiates any legislative process. It is always involved in legislative process as it represents the interests of the union. If any other body had the right for legislative initiative, it could undermine the interests of the union in favour of seeking the interests of the ms. This can be dangerous for the institutional structure of the EU.
   

Another way to legislate-signing a petition with 1million signatures from EU citizens on a certain issue.

It is quite hard to do this as it requires EU citizens from various EU ms, all the signatures cannot originate from only 1 state.

2. 
   Budgetary procedure- The EU commission creates the budget and allocates it to various sectors. The proposal for budget must be accepted by the council of the and EU par for it to go into effect.
   

3. 
   The EU comm represents the EU in foreign matters- a commissioner exists who specializes in foreign relations and security (equivalent of a foreign minister in the EU). This person is supported by the external action service which is an administrative body and an equivalent of a ministry of foreign affairs in the EU. The EU has implied competences to conclude international agreements with goals which match their exclusive competences. Moreover, the EU has a legal personality which was stated in the Lisbon treaty. Thus, the EU has the right to conclude and enter into international agreements. Every agreement signed by the EU means that the ratification of the agreement has been done by the EU comm. International organization, in principle, have an international legal standing, if states are willing to enter into agreements with the organization in question. However, the EU, as an international organization, has a legal standpoint which was given to it by the treaty of Lisbon and is independent from the will of other states in regards to concluding international agreement.
   

4. 
   The EU commission represents the EU in the court. If a case concerns the EU or its competences, the commission would represent the EU. They would research an infringement and initiate court proceedings. The commission would also go to court in case the EU was a party to a case initiated by another party. The EU commission is quite difficult to beat as it includes teams of economists, lawyers, experts on specified matters etc.
   

5. 
   EU commission can adopt laws by itself in matters of exclusive EU competences. It has the biggest influence on the daily operations of the EU, people and businesses within the EU.
   

EUropean Court of Auditors-

External instit mandated with governing and managing EU funds. They are tasked with managing how the funds are spent in order to achieve the goals which were set by the budget. They also perform bookkeeping and accounting services of the EU. If the court deems a goal to be unachievable with the budget that has been set to achieve, they have the competence to decide on how it should be solved.

1 auditor per ms, any person qualified to work in domestic auditory institution is qualified to work in the court of auditors.

Court of Justice of the EUropean Union-

Pre-lisbon name= ECJ

It constitutes, of two components structured in a way which ensures fair trail and instance control

1. 
   Court of Justice (second instance court/higher chamber)- It is tasked with handling claims by e ums or EU institutions at first instance. It also handles cases by legal persons and natural persons. It also handles preliminary cases.
   

1 judge from each EU ms. An individual who is qualified to sit in the supreme court (highest possible judiciary position) within an EU member state is eligible to be a member of CJEU. The qualification of that individual is assessed through the legal system of their member state. The judges are selected on a basis of 6 years and are independent from the member states. EU member states cannot recall the judge and the judges gain independence from the member state as soon as the ascend to the CJEU. The judges also cannot be employed anywhere else outside the CJEU. The judges can only be dismissed by the court itself.

2. 
   General Court (1^st instance court/lower chamber)- It is tasked with handling cases and claims by natural persons and legal entities.
   

It contains 2 judges from each EU member state.

3. 
   Civil Service tribunal (defunct since 2006)
   

In any case, there must be a mechanism for case review by a higher court. This is called the principle of fair trail which is guaranteed by the EU.

The CJEU also has 11 advocate generals. This concept was borrowed from a concept found in French constitutional court. The advocate generals are tasked with gathering information on relevant cases presented to the CJEU. The information regards information, evidence, CJEU case law, legal acts concerning the case. Using the information, they make an opinion which is issued before the ruling of the court.

The opinion consists of a legal analysis of the case- what kind of case it is, what situation would require amendments etc. The opinion also includes a proposal of how the case should be resolved with reasoning. However, this opinion is not legally binding in nature and it is left to the court to make the final legally binding verdict on the case. The court may reject the opinion without responding to all the claims stated within the opinion.

The opinion might lead to legislation being initiated if some legal discrepancies were found by the advocate generals while analyzing the case.

France was the state which initiated the process of EUropean integration and influenced the structure of several EU institutions.

The competences-

1. 
   Handles actions for annulment- They have the power to review legal acts of the EU institutions.
   
2. 
   They have the power to judge if an EU member state has violated the principle of loyal cooperation. If a member state with the conscious decision to join the EU has breached EU law, it is liable for sanctions imposed by the CJEU. It works in conjunction with the EU commission in ruling in such cases. Cases of infringement are recognized and brought to the CJEU by the EU commission.
   
3. 
   They deal with compensation-
   

1. 
   The EU can be held legally liable for contracts- violating contractual obligations.
   
2. 
   The EU can be held liable for torts- violated the law and caused harm to an individual
   

4. 
   They deal with actions on the inactivity by EU insts- when an EU body has obligation to act and they do not, an individual who is potentially a party to this action which was not caried out can bring the case to the CJEU.
   
5. 
   Preliminary question- EU’s legal protection system. The domestic court of an EU member state can ask the CJEU for judgement on the legality of EU legal acts and legislation. This harmonizes the interpretation of EU law within the EU.
   
6. 
   The CJEU controls int agreements signed by EU and rule whether those agreements confirm with EU treaties. If international agreements do not deviate from EU primary law.
   

Lecture 6

Judicial Protection within the EU

State liability for infringing eu law

Action for annulment against eu law

Preliminary question

Action brought against eu activity

EU civil liability

1. 
   State liability for infringing eu law
   

The concept of state liability stems from the principle of solidarity/loyal cooperation. This is a new form of the entrenched international law principle pacta sunt servanda- every party has to respect the treaties.

At EU level, if state joins EU and swears to uphold and preserve EU law, it can be held liable in case it infringes eu law.

There is a procedure for this which has 2 phases which are initiated by the eu.

Informal phase- 90% of infringement cases

EU law should be primarily used in day-to-day operations at the lowest possible level, ie regional levels according to the principle of subsidiarity. Thus, majority of EU law infringement are quite simple and miniscule which may be due to the lack of knowledge or clerical errors by certain officials on a small scale. They don’t require a serious legislative action by the member state.

The cjeu would be congested if legal cases of such nature are brought up to them which do not have a profound legal importance.

When the commission learns about a certain eu law infringement through their own activities or through claims of infringement by other individuals, as long as they claims do not come from an anonymous source, the commission can refuse to investigate the case if it deems it unnecessary. However, if the commission believe that there is a merit behind the claim, it will contact the member state and discuss the nature of the claim with them. This can have three different courses of actions

1. 
   The member state responds and refutes the claims which leads to the case being dismissed. The case is informal and was not open yet.
   
2. 
   The member state responds and the commission finds that there was an infringement which the state recognized and remedied. This is quite common as most infringements happen at regional levels and arise from clerical error and are a product of an individual’s incompetence. This leads to the case being dismissed.
   
3. 
   The member state responds and claims that there is no infringement or that it cannot resolve the infringement in the time being, ie failure to implement eu directives. If the commission deems the case to be infringing on eu law, it will issue a written easoned opinion. The infringing member state has 3 months to respond to the reasoned opinion before it reaches the cjeu. A lack of response would not prevent the case from going to the court. The state can respond by stating that the infringement was erased in case the member state acknowledged the infringement. The state can also respond by restating their initial position which would take the case to the cjeu.
   

The commissions reasoned opinion would be the basis for the legal case in the cjeu. The commission vs Germany. The case takes usually about 2 years until a conclusion is reached. The reasoned opinion provided by the commission should be reasonable to justify taking the case to court. The state can correct their infringement of eu law during the court proceedings.

Article 258 TFEU aims removing infringements before they reach the court as to not involve the court and start a lengthy legal procedure.

Formal phase-

Even if the member state corrects their infringement during the court proceedings, the case is not dropped and the court procedure would continue until a ruling is made by the court. The court judgement can have disciplinary measures against individuals involved and, in cases of monetary loss, monetary compensation to be paid by the state. The violating member state is obliged to remove this infringement by a legally binding judgement of the court. However, in cases the court judges that there was no infringement, the commission bears the cost of the case proceedings. The only way a state can be punished is through imposing a financial fine if the infringement was not resolved by the state.

The fine= basic sum of money x (how serious the infringement is) x (how financially capable the state is) x (how long the infringement was occurring). The longer the member state tolerates this infringement, they more they would pay. This sum of money is paid for everyday the member state was infringing on eu law.

The formal procedure is initiated only if the measures provided by the informal procedure fail.

There exists a procedure through which the member state can directly take another member state to the cjeu for infringing eu law. This process has hardly been ever used and is considered to be a politically hostile move by the initiating member state.

2. 
   Action for Annulment (Art 263)
   

Article 288 provides a catalogue of secondary legal acts of the eu. Article 263 refers to acts of European institutions which are intended to create legal effects. Thus, the article is not confined to just the legal acts stated in article 288. If an act by an eu inst can create a legal effect, it falls within the scope of article 263. if an EU act is believed to violate EU treaties or fundamental rights, the Court can be asked to annul it – by an EU government, the Council of the EU, the European Commission or (in some cases) the European Parliament.

Private individuals can also ask the Court to annul an EU act that directly concerns them.

In order for the action to be reviewed by the court, it should be assessed that the action has a legal effect.

The action for annulment by the CJEU is applicable and legally-binding to all natural persons and legal entities.

Preliminary Ruling-

Every court which is seen as eligible under member states’ domestic legal systems is considered to be a court within the context of EU law. However, certain institutions which are not considered to be courts by member states’ legal system and meet a certain list of criteria is considered to be a court in the eyes of EU law.

The criteria are as follows-

1. 
   Independence-
   

1. 
   Direct independence- no higher authority which can order the alleged court to act in a certain way exists.
   
2. 
   Indirect independence- a formalized mechanism which may force the alleged court too act in a certain way does not exist. i.e., when there is a possibility to fie the person responsible for a certain ruling, reduce their salary, demote the person. This creates a certain leverage on judges which coerces them to act in a certain manner.
   

2. 
   The institution must be permanent- It cannot be an institution which was created with the aim to accomplish a particular role.
   
3. 
   Legality - the institution must have been created on the basis of a legally-binding act
   
4. 
   It must apply law within their operations. For example, arbitration-type rulings do not use law within their rulings and opt for the use of contracts which may contain arbitration clause. Institutions which may use general principles of law when faced with loopholes. These institutions are exempted from EU’s definition of a court.
   
5. 
   Legally-binding- the ruling of these institutions must be legally binding on the parties to the judgement.
   

In one EU case, a home office met the functional criteria of the EU for an institution to be classified as a court.

This court has the capacity to ask for preliminary rulings.

If a court exists whose rulings can be judged by a higher court within a member state, this court can request a preliminary question.

If a court exists whose ruling cannot be challenged within a member state, they must request a preliminary ruling from the CJEU.

Court of last instance- In the institutional framework of courts within the member states, various hierarchal structures exist. Therefore, a court of last instance is not the court which is at the top of the hierarchy. If a specified case is destined to end within the court of appeal and would not go further, the court of appeal is regarded to be the court of last instance.

The court may request if it deems a specific question of the acts validity and interpretation and the answering this question is impossible by the court in the member state.

All courts adjudicating a case at the last instance are obliged to request a preliminary ruling. Courts which are faced with a question of an EU law validity.

Swedish courts are reluctant in requesting preliminary rulings and opt to implement national legislation or EU law incorrectly instead of requesting preliminary rulings. The European Commission started an infringement procedure on Sweden stating that Swedish courts are incompetent and inactive in the application and interpretation of EU law. This infringement procedure did not even reach the CJEU as it resulted in Swedish courts changing their behavior in regards to union law.

If something is clear, you do not need to clear it up- doctrine and principle of most legal orders.

If we have a court of last instance, which is obliged to ask request a preliminary question, is faced with a EU law which is quite clear and requires no interpretation by the CJEU, it can refuse to request a preliminary ruling by applying this principle. If the interpretation of the EU law is clear, the court is not indispensable for domestic courts.

If a case exists where a question of eu law interpretation is present and the question is identical to a previous question which was resolved by the CJEU, then the domestic court can use this interpretation.

In common law countries, previous rulings of a court can be used as a precedent and an eligible source of law for the judgement of future cases.

In the EU’s judicial system of the EU, there is no provision which confirms or denies the nature of legal cases of courts as being a precedent or not.

If a court can rely on a previous ruling, than this ruling from the previous case can be considered to be legally binding precedent on cases outside the original case where it was delivered. However, a domestic court which possesses a preliminary ruling is at their disposal from a previous case can be justified to use it according to the literal interpretation as there is no indispensability to request a preliminary ruling.

The Eu does not explicitly deny legislative powers to courts.

The rulings of CJEU should be considered to be quasi-precedents to streamline the process of legislative harmonization within the EU or should be explicitly denied legislative powers to avoid overlapping of competences between the courts and legislative bodies.

The informal reach of supreme court jurisprudence can be observed inn each EU member state domestic legal system in which supreme court rulings are considered to be a legal guidance to judges and other courts on how to act on future cases of a similar nature.

The parties of a case can ask the domestic court to request a preliminary ruling from the CJEU and the court may either accept or deny the parties their request. The decision is ultimately up to the courts in whether to accept the request and ask for a preliminary ruling from the CJEU.

Mechanism-

If a question arises regarding an EU law’s validity, interpretation etc which is indispensable to the case, then the domestic court asks the CJEU for a preliminary ruling and suspends the case domestically. After a period of time, the CJEU’s response is sent to the requesting court. The CJEU does not provide resolution to the domestic case and only elaborates on the validity and interpretation of a certain union acts which is needed in the domestic case. The CJEU’s ruling is legally binding on the domestic courts and the domestic courts may not dispose or disapply them. Finally, the domestic court provides a resolution to the case using the preliminary ruling provided by the CJEU.

The legally binding nature of the CJEU’s case law is only applicable to circumstances relating to preliminary rulings. The legality and precedent nature of a CJEU ruling is limited to the topic of preliminary ruling.