European Union Laws - Research Paper Example

European Laws Introduction Europe as a community has continued to evolve and grow over the years, through the formation of various Treaties. The ideas behind the background to the European integration emerged both in the pre Second World War and post second world war. Before the Second World War there was pan- European movement which was started by intellectuals and politicians in Europe but whose idea was shelved due to animosity created by Italy and Germany under Hitler and Mussolini respectively. After the Second World War, Europe faced many economic and political challenges which necessitated the revival of the European integration movement. This movement led to the establishment of the European coal and steel community by the treaty of Paris1. Ever since, the growth of the European community has been through treaties. The establishment of the European community was necessitated by various theories at various stages. There was the theory of functionalism in the 1950s which was replaced by neo-functionalists in the 1960s. In 1970s there was intergovernmental phase where the neo-functionalists arguments were challenged by neo-realist and neo-rational accounts amongst which liberal intergovernmentalism emerged as a particularly prominent theory, presenting states rather than supranational institutions as the key actors in the integration process. These theories were applied in the 1980s and led to the signature of the Single European Act in 1986 and the organization of the Intergovernmental Conferences (IGs) of the early 1990s which, in turn, led to the adoption of the Treaty on European Union in 1992. The latter, however, generated counter-claims of neo-federalist revival. In 1957, the treaty establishing the European Economic Community2 was established. Other treaties were also established to regulate various aspects of the European integration. In 1990 treaty on European Union (TEU) was created in Maastricht. This treaty created the European Union. The European Union was based on pillars which were largely intergovernmental. They covered areas which the Member States agreed to co-operate closely while retaining competence. This led to the introduction of a common currency, the Euro and establishment of the European central bank. There was also introduction of EU citizenship and institutional reforms. The Treaty on European Union was seen by some as the creation of chaos and fragmentation. However, in 1997 the treaty of Amsterdam was created to make the EU more efficient and consensual. However the issue of division of competences between the union and member states was not settled by these earlier treaties. Therefore, the confrontation as to who between the union and the member states was competent to deal with certain matters continued to be a problem. At the European Union summit in 2001 a Declaration on the future of Europe and establishment of a Convention on the future of Europe was made and a treaty establishing a constitution for Europe was created and signed in 2004 but it seems to have aborted after many countries refusing to ratify it. After the failure of the constitutional treaty the European leaders decided to come up with a European treaty and hence this led to the creation of the Lisbon treaty. The Treaty of Lisbon amending the Treaty on European Union and the Treaty Establishing the European Community was created in 2007 and came into force in 2009. This treaty was aimed at making EU more democratic, transparent and efficient. There was a heightened sensitivity to the issue of Competences in the European Union prior to the creation of the Lisbon treaty. The post Maastricht public debate demonstrated a clear public distrust which justified the in the ability of Community Institutions to guarantee the limits to Community encroachment on public life. With this, there had been many people calling for reform in the Community competences in this regard which would increase public confidence in the jurisdictional limits of the Community and Union. The EU is currently made up of 27 members and the Lisbon Treaty introduces for the first time withdrawal clause from the EU. The treaty of Lisbon and division of competences within the EU The Lisbon treaty makes European Union to acquire legal personality hence reduce the controversy on the division of competences within the EU. The Lisbon Treaty thus amends the TEU and replaces the TEC by the Treaty on the functioning of the European union (TFEU) hence marking the end of the three pillar structure of the EU. Article 1 of TFEU provides for the organization of the functioning of the union and determines the areas of delimitation and arrangements for exercising its competences. Article 13(1) of TEU provides an institutional framework of the union which shall aim to promote its values, advance its objectives, serve its interests, those of its citizens and those of the Member States, and ensure the consistency, effectiveness and continuity of its policies and actions. It provides the union’s institutions as the European Parliament, the European Council, the Council, the European Commission , the Court of Justice of the European Union, the European Central Bank and the Court of Auditors. The Treaty of Lisbon thus clarifies the division of competences between the European Union and Member States which had been a subject of debate for many years. For the first time, it introduces a clear classification in the founding Treaties, distinguishing between the main types of competence. The attempt at clarification does not result in any notable transfer of competence. However, this reform is important and vital for the proper functioning of the EU. This EU is based on the principle of conferral which is contained in article 5 of TEU. This limits the Union competences. On the other hand the use of Union competences is governed by the principles of subsidiarity and proportionality. Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States. Several conflicts of competence have emerged in the past between the EU and Member States. Henceforth, the boundaries between the competences of each are clearly defined. In addition, this transparency assists the usage of the basic principles relating to the control and exercise of these competences. Before the Lisbon treaty there had been many cases raising the issue of the division of competences within the EU. In the Case 138/79 Roquette Frères v Council3which concerned the common organization of the markets in the sugar sector and the determination of the basic quantities used for the allocation of production quotas of Isoglucose produced as an intermediate product4 . The Illegality of a Community measure was raised before the national court. Further in Case C-65/90 Parliament v Council (‘Cabotage II’)5 and Case C-65/93 Parliament v Council (‘General Tariff Preferences’) 6 there was a controversy and the ECJ noted that by adopting that course of action the Parliament had failed to discharge its obligations to cooperate sincerely with the Council. These cases show that there was no common stand between the EU and the member states. Because of the controversy, the Lisbon treaty introduced various changes; for example co-decision procedure becomes the ‘ordinary legislative procedure’7. This procedure applies to new areas like regulations relating to services of general economic interest; measures concerning border checks, measures concerning a common European asylum system; measures concerning a common immigration policy; and measures concerning the judicial cooperation in civil matters having a cross-border dimension. Further, one of the most notable changes resulting from the Treaty of Lisbon concerns the abolition of the three-pillar structure of the EU. These pillars were the European Community, the Common Foreign and Security Policy (CFSP), police and judicial cooperation in criminal matters. In this structure, several types of competence were imposed. Acts adopted under the framework of the first pillar were adopted in accordance with the EU’s legislative procedures. In contrast, the other two pillars were found on intergovernmental cooperation witinn Member States. The Treaty of Lisbon puts an end to this complicated structure. The European Community disappears. It is replaced by the EU, which is endowed with legislative procedures enabling it to exercise the competences conferred upon it to the full extent. Moreover, the EU also acquires legal personality, which was previously reserved for the old Community. It is therefore able henceforth to conclude treaties in the fields coming within its area of competence. The Treaty on the Functioning of the EU (TFEU) distinguishes between three types of competence and draws up a non-exhaustive list of the fields concerned in each case. In exclusive competences8 the EU alone is able to legislate and adopt binding acts in these fields. The member States’ role is therefore limited to applying these acts, unless the Union authorizes them to adopt certain acts themselves while in the share competences9 the EU and Member States are authorized to adopt binding acts in these fields. However, Member States may exercise their competence only in so far as the EU has not exercised, or has decided not to exercise, its own competence. Lastly, in supporting competences10 the EU can only intervene to support, coordinate or complement the action of Member States. Consequently, it has no legislative power in these fields and may not interfere in the exercise of these competences reserved for Member States. This treaty also creates gives the EU special competences in certain fields. For example, in the coordination of economic and employment policies11, the EU is responsible for ensuring the coordination of these policies. It is required to define the broad direction and guidelines to be followed by Member States and further article 352 enables the EU to act beyond the power of action conferred upon it by the Treaties if the objective pursued so requires. However, this clause is framed by a strict procedure and by certain restrictions in terms of its application. The exercise of these Union competences is subject to three fundamental principles which appear in Article 5 of the Treaty on EU. The definition of EU competences greatly facilitates the proper application of these principles. These principles are: (a) The principle of conferral where the Union has only the competences conferred upon it by the Treaties. (b) The principle of proportionality where the exercise of EU competences may not exceed what is necessary to achieve the objectives of the Treaties. (c) The principle of subsidiarity which provides for shared competences, where the EU may intervene only if it is capable of acting more effectively than the Member States. The competences created by the treaty can be transferred. However, the reduction or extension of EU competences is a delicate matter which requires the consent of all Member States and necessitates a revision of the treaties. In connection with the conclusions reached at the meeting of the European Council in Nice in 2000, it was stated that a clearer distribution of decision-making powers between the EU and its member states should be discussed. Up to EU has applied the principle of subsidiarity in order to determine which level that has the competence to make decisions, which has lead led to a situation where competence and power in given issue areas are spread across different levels of government, and shared between different actors. The purpose of this project was to satisfy the need for an overview of problems related to matters of assigning decision-making powers specifically in respect to accountability, predictability and effectiveness in countering centralization. The ECJ in Van Gend en Loos12 established the principle of direct effect of these competences. The ECJ held that the EC Treaty established a new legal order of international law for the benefit of which the states have limited their sovereign rights. The ECJ held that Member State nationals were subjects of the EC legal order. Principle of direct effect, the EC law might give rise to individual rights that can be invoked in the national courts. However, to qualify for direct effect, Treaty articles must be sufficiently clear and precise and be unconditional and further leave no room for the exercise of discretion in implementation by Member States or the EC institutions. This was held in the cases 2/74, Reyners v Belgium13 and 43/75, Defrenne v Sabena14. In Rolls-Royce plc v Doughty15 , the English Court of Appeal found that Rolls-Royce, a nationalized company at the time, although ‘under the control of the State’ had not been ‘made responsible pursuant to a measure adopted by the State for providing a public service’. Conclusion From the history of the development of EU, it can be seen that the Maastricht Treaty marked a radical turning-point in the process of European integration. That treaty signified a change in the division of competencies between the Community and member states. It can be understood that the integration process was at first driven by what was in essence a centralizing logic leading to many changes of blocs of competences from member states to the Community. Looking at the E.C. Treaty, the first issue was the choice of the legal instrument to be used which was left to the Community. This meant recognizing the Community’s power to determine the allocation of competencies between itself and member states as it saw fit. In this state of affairs, the introduction of the subsidiarity principle was to signify a revolutionary Swing in direction. Based on a preferential decision in favor of the member states, the subsidiarity principle reversed the hierarchy of values that had prevailed up to that point. By subordinating the increase in Community adherence to inadequacies other member states, the subsidiarity principle put the brake on the centralizing drive that had prevailed in the previous phase. With the creation of the treaty of Lisbon, the division of competences between the EU and the Member States has been clearer than in the earlier treaties hence we expect fewer controversies. The Lisbon treaty strengthens the role of the European Parliament and provides for a greater involvement of national parliaments. It also creates the Citizens’ Initiative. It further provides or qualifies majority voting which is extended to new policy areas. It also creates the function of President of the European Council elected for two years and a half and creates a new High Representative for the Union in Foreign Affairs and Security Policy, also vice-President of the Commission. Through this treat, the EU Charter of Fundamental Rights becomes legally binding except for the UK and Poland. Furthermore it provides for the EU’s accession to the European Convention on Human Rights16 and enhances the role of the national parliaments17.   The Lisbon treaty has given a new momentum to the EU as it has acquired a legal personality. Furthermore, the institutions established by the treaty have reaffirmed the values of the EU and gave it a better consistency. This has improved the relationships between the union and the Member States. This treaty also contains many of the changes the constitution attempted to introduce, for example, politician chosen to be president of the European Council for two-and-a-half years. But ministerial meetings will still be chaired by the country holding the six-month rotating EU presidency. Furthermore, the European Commission will continue to have 27 commissioners - one from each member state. A redistribution of voting weights between the member states, phased in between 2014 and 2017 - qualified majority voting based on a "double majority" of 55% of member states, accounting for 65% of the EU's population. With this it has been acknowledged that the treaty preserves the main substance of the aborted constitution. From the above, it is certain that the treaty of Lisbon has tried to harmonize the functions of the EU and the member states hence reducing the controversy on the issue of division of competences between the two. 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