The Law of the European Union: Democracy in the EU - Essay Example

The Law of the European Union Section A – Democracy in the EU Introduction The European Commission constitutes a non-elected with a very high level of political power. Its legitimacy is not derived from the people; nevertheless, it has substantial and concrete influence upon the decision making process. The EU Parliament, the sole elected body in the European Union (EU), invites widespread criticism, on account of the imbalance between power and representation in it. From the theoretical perspective, power should be proportional to representation. In comparison to the Commission, the EU Parliament has less power to legislate.1 Consequently, it has been censured for its inability to protect the rights and entitlements of the people. Moreover, the Court of Justice of the European Union (CJEU) had authorised the domestic tribunals and courts to give effect to the primacy of EU law. This primacy, established in Costa v ENEL,2 had to prevail regardless of the constitutional functions of these courts and tribunals in the judicial system of their country.3 The outcome of this ruling had a major impact upon the powers of the national courts and tribunals, which were usually constrained to apply the pertinent national law during the exercise of their jurisdiction.4 However, with regard to the primacy of EU law, the national courts and tribunals were required to disapply conflicting domestic law. Consequently, the CJEU developed the doctrine of interpretative obligation, thereby emphasising this autonomy of the domestic courts and tribunals.5 As a result, the CJEU superseded the hierarchy of the domestic judicial systems, and established a constitutional system of judicial authority, over which it reigned supreme.6 For instance, the CJEU has reserved to itself the right to determine the validity of Union legal acts. As such, with regard to issues pertaining to the interpretation and validity of EU law, the domestic courts have to refer to the CJEU. This is with respect to cases pending before a national court or tribunal of a Member State against whose decision the national laws do not provide a judicial remedy. As pointed out by some scholars, the preliminary ruling procedure indicates that the CJEU constitutes a superior authority, with regard to the interpretation of EU law. Moreover, this superior authority is distinct from the authority of the national courts.7 The activities of international organisations, such as the United Nations (UN) and the Council of Europe, rely upon international treaties. On the other hand, EU law incorporates the principles of direct effect and supremacy. This is a significant difference between the EU and the other international organisations. The Member States of the EU, via the constituent treaties, have bestowed upon the EU, the authority to enact its own laws. 8 Additionally, EU law has direct effect, as a consequence, the EU constitutes an independent entity, which is a polity in its own right with direct associations with its citizens. This interpretation of the EU emerges from the decision in Van Gend en Loos.9 The EU institutions had been established by the Member States, which had accorded legislative powers on those institutions. At present, the Member States do not represent their individual interests when they take part in the law-making process of the EU institutions. The Member States merely represent the common interest of each and every Member State. The legislative function is carried out by the European Commission, European Council, and the European Parliament. The functions of these institutions have not been clearly demarcated, and their legitimacy is not uniform. 10 The European Parliament is unique, as it is the only EU institution that has been empowered to act at the supranational level directly by the citizens of the Member States. All the same, it is not the principal law maker, and is just one of the participants in the legislative process of the EU. The European Parliament, despite not being empowered to initiate laws, does possess a certain amount of legislative competence. Thus, it can take participate in the process that culminates in the adoption of EU acts.11 It achieves this by exercising its powers, in compliance with the procedure stipulated in the Treaty on the Functioning of the European Union (TFEU), by providing opinions of an advisory nature or by according its consent.12 Furthermore, the Treaty of Lisbon13 did not grant Parliament with the status of the principal law-giver. The major powers of the legislative procedures were bestowed upon the Council. Consequently, the powers of the Commission and the Council are greater than those of the directly elected Members of parliament. The former represent the executive powers of the EU. The representatives of the Council and Commission are not directly elected, and they act for the governments of the Member States or they are nominated by the Member States and approved by the European Parliament. Thus, the Council and Commission have indirect legitimacy and the Parliament has direct legitimacy; however, the latter enjoys limited powers. 14 Thus, the EU is marked by weak legitimacy. In addition, the Lisbon Treaty has empowered the CJEU to provide ruling on several new issues. These issues had been beyond the purview of the CJEU, in the past. As a result, the CJEU can review and annul certain laws, which it could not have done prior to the Lisbon Treaty. Some of these are administrative laws and basic acts. The Council and European Parliament can approach the court regarding the annulment of these laws and acts. As such, the Lisbon Treaty has widened the ambit of the authority of the CJEU, which has provided new opportunities to the Legislator to modify some of the administrative laws. 15 The law enacted by the EU institutions is termed as secondary legislation. It incorporates legislative, delegated, implementing and other legal acts. Article 289 TFEU provides that legislative acts are those that have been adopted by special or ordinary legislative procedures.16 As such, there has been a perception of democracy deficit in the EU, due to the weakening of its legitimacy. Furthermore, the democracy deficit has an impact upon the Member States, via the direct effect of EU law. As a result, the following questions come to the fore; how to enhance the powers of the European Parliament, and how to ensure greater legitimacy of the institutions of the EU. Significantly, the EU is devoid of the power to create powers by itself.17 Moreover, the constituent treaties provide different procedures for law making. For example, in Foto-Frost v Hauptzollamt Lübeck-Ost,18 the CJEU made it clear that it possessed the sole right to invalidate the acts of the institutions of the EU. However, the CJEU emphasised that the national courts were not entitled, on their own, to conclude that a Community norm was invalid. As such, it was clarified that the right to invalidate an act of the EU was an essential component of the power to determine the extent of the law making competency of the EU. 19 With this ruling, the CJEU established a norm for resolving boundary disputes arising from the overlapping of EU law and national law. Nevertheless, it is to be comprehended, from this background that the supremacy of EU law and the obligation of the national courts to apply it uniformly, have been firmly established. This is the precise stance of the CJEU.20 The Declaration on Primacy in the annexure to the Lisbon Treaty reiterates this position. In addition, a substantial portion of the EU law, namely its administrative law, is not made by the European Parliament and the Council of Ministers. These constitute the elected bodies of the EU. In fact, the administrative law of the EU is made by the European Commission, which is not an elected body of the EU. In itself, this cannot be construed to indicate a democratic deficit in the EU. As a matter of fact, the majority of the democracies delegate the power to make administrative laws to institutions that are unelected.21 Under Articles 251 to 281 of the TFEU, the CJEU has been empowered to rule on several new issues.22 These had, in the past, been outside the jurisdiction of the CJEU. Conclusion There is a major difference between the EU and other democracies. In the latter, the elected legislature can alter administrative laws after their enactment; whereas, in the EU, Parliament and Council cannot change administrative laws. As such, the democratic institutions of the EU can exercise their law making power, via the Community method, treaty reform, and comitology. Nevertheless, these processes do not empower the legislature to alter administrative laws. At the least, the Commission has to endorse any change to administrative laws. Hence, the elected bodies of the EU can neither make laws, nor can they overrule the regulators of the EU. This is a defect in the EU that differentiates it from the majority of the modern democracies. As a result, the EU suffers from a certain amount of democratic deficit. Thus, it can be surmised that the EU’s institutions suffer from a democratic deficit, since their elected institutions lack the fundamental power of legislation, which is an important attribute of democracy. Section B Part A In the present problem, Heisepunkt GMBH, was a German company manufacturing washing machines. The Italian authorities inspected these machines, as a policy matter, upon their import. The inspection costs were exorbitant, and had to be borne by Heisepunkt. For advising the company regarding its rights under the EU law, the following issues have to be discussed. In cross-border traffic, business establishments compulsorily incur considerable compliance and transaction costs expenditure. In the absence of harmonisation or effective cooperation between supervisors and inspectorates, inspection or supervision costs can escalate in proportion to the frequency with which the inspection or supervision procedures are applied in the various Member States.23 Duplication is commonplace, even when national authorities cooperate on cross-border procedures. In addition, there are several intricate procedures that have not been harmonised or correlated to each other. Moreover, even seemingly insignificant deviations in these procedures can result in high costs. 24 Furthermore, excessive increase in costs can be frequently traced to absence of transparency. In general, differences that are evident beforehand and transparent do not pose a major problem. The difficulty arises, due to unexpected variations or changing requirements. Such variations generate significantly higher costs, and cause impediments and exasperation. Upon measuring the costs, it becomes possible to make out what is in store for businesses and citizens. Such measurements can be carried out by employing the Standard Cost Model for Measuring Costs of Inspection. 25 As such, inspection costs can be fairly assessed by applying Standard Cost Model for Measuring Costs of Inspection procedure. In this regard, the objective of EURinSPECT is to eliminate impediments to cross-border activities and competitiveness, with regard to citizens, civil servants, and business in Europe. EURinSPECT aims to eliminate obstacles and barriers for business that emerge from variations in inspection and supervision. It refers to cross-border impacts of inspection and supervision upon an entity that is conducting business in another Member State, and which encounters variations in the conduct and implementation of EU law. These differences being between the inspectorates and supervisors, and which produce additional costs and burdens.26 The German company can approach the EURinSPECT, for avoiding unfair heavy inspection costs by the Italian border authorities. In addition, in Commission of the European Communities v Italian Republic,27 the CJEU held the Italian Republic in breach of its Treaty obligations. The latter had individually required each undertaking to make payment for services that had been provided simultaneously to a number of undertaking. This was with respect to customs formalities.28 Similarly, in our problem, the German company Heisepunkt can approach a court of justice claiming redressal against the imposition of exorbitant inspection costs by the Italian border authorities. Part B In the present problem, Heisepunkt, were manufacturers of fridge freezers with ice cube makers. The Latvian authorities had banned such goods, recently. For advising Heisepunkt, with respect to its rights under EU law, the following issues need to be considered. The Mutual Recognition Regulation was adopted by the EU legislator in 2008.29 With this a procedure was established with respect to the application of certain technical rules to products marketed legally in another Member State. The chief aim of this regulation was to specify the obligations and rights of the national authorities and businesses. This was with respect to national authorities that had the intention of preventing access to their market of a product that was being lawfully marketed in some other Member State. 30 With this regulation the onus of proof is placed upon the national authorities that intend to deny market access. Such authorities, are required by this regulation, to record in writing the exact scientific or technical reason underlying their intention to deny access to their national market. An opportunity is provided to the economic operator to defend its case, as well as to submit strong arguments to the competent authorities. 31 As such, the national authorities of Latvia have to establish that Heisepunkt’s product is dangerous to public safety. In addition, in Commission v Italy,32 the CJEU held that prohibiting the use of trailers in Italy that had been specifically designed for use with motorcycles, ensured that there was no demand for this type of product in the Italian market. As a result, the disputed legislation had the effect of impeding the access of such trailers to the market in Italy. Moreover, this hindrance could fall under the ambit of the prohibition inherent in Article 34 TFEU, which prohibits quantitative restrictions on imports and measures that exercise an equivalent effect between Member States.33 All the same, the CJEU, ruled that the Italian measure prohibiting trailers was not a treaty violation, as it was aimed at promoting road safety. Thus, it was deemed appropriate to prohibit the use of trailers that were towed by motorcycles. 34 Such contraptions were very likely to pose a danger to the motorcycle riders and road users. Similarly, in our present problem, the Latvia Government has to establish the legitimacy of its decision, on the basis of scientific reasoning, in order to restrict prevent the import and sale of Heisepunkt fridge freezers with ice cube makers. Otherwise, the Latvian Government will be liable for violation of EU law, namely, infringement of the principle of free movement of goods. Part C In the present problem, the Polish Government permitted the sale of gas cooking hobs, manufactured by Heisepunkt, only through some specified camping stores. For assessing the rights of Heisepunkt, with respect to the free marketing of its product, the following issues need to be discussed. The case of Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein or Cassis de Dijon,35 has posed several difficulties to the CJEU. This is due to this ruling being cited by Member States, in order to justify the restrictions imposed by them. On the other hand, traders endeavour to contest national laws that limit trade practices or commercial freedom. All the same, the ruling in this case provided clarification regarding the principle of free movement of goods, stipulated under Articles 28 and 29 of the TFEU, and the exception to it, which has been provided under Article 30 of the TFEU. 36 The following principles of law have emerged from the ruling in this case. First, the Principle of Equivalence, which is based upon the statement of the CJEU. The latter declares that alcoholic beverages that have been legally produced and marketed in a Member State can be introduced into the other Member States. The connotation is that a product that satisfies the standards of the exporting Member State has to be deemed to meet the standards of the importing Member State.37 This was reaffirmed in Italy v Nespoli and Others.38 In its ruling the CJEU declared that imports lawfully produced and marketed in a Member State were eligible to enter another Member State. The movement of these goods was not to be hindered by quantitative restrictions and measures possessing an equivalent effect. Similarly, in Commission v France (Woodworking Machines),39 the CJEU emphasised that "a Member State was not entitled to prevent the marketing of a product originating in another Member State, which provides a level of protection of health and life of humans equivalent to that which the national rules are intended to ensure or establish". Second, the principle of Rule of Reason. In the Cassis de Dijon case, the CJEU made some rulings pertaining to situations where there was an absence of relevant Community law. In such cases, exceptions to the principle of free movement of goods emerging from national legislation differences had to be accepted, provided those exceptions were essential for fulfilling mandatory requirements. 40 Some of these requirements being effectiveness of fiscal supervision, protection of public health, fairness of commercial transactions, and the protection of consumers. Moreover, in Quietlynn Limited and Brian James Richards v Southend Borough Council,41 the CJEU ruled that Article 28 of the TFEU was not breached, as long as a discriminatory effect was absent between domestic and foreign goods, due to the relevant legislation.42 Thus, the legislation, in question, was held to be in conformity with Community law. Furthermore, Article 28 of the TFEU has to be interpreted as not constituting a measure that exercised a tangible limitation on imports. This is in the context of national laws disallowing the sale of legal objects related to sexual intercourse from unlicensed sex establishments. Legislation pertaining to the sale of certain products, which does not differentiate between domestic and imported products has certain features.43 With regard to legislation that does not aim to regulate trade in goods in the Community, it has no bearing upon cross-border trade. For this to hold good, such goods may be marketed via licensed sex establishments. Similarly in our present problem, there were no gas hob manufacturers in Poland. Hence, there was no discrimination against the products exported by other Member States’ companies, such as Heisepunkt. Therefore, the limitations imposed by the Polish Government, requiring gas hobs to be sold through certain specified camping stores was reasonable and did not constitute an infringement of Community law, according to the above discussion. Bibliography Section A Azman KD, ‘The Problem of “Democratic Deficit” in the European Union’ (2011) 1(5) International Journal of Humanities and Social Science 242 Beck G, ‘The Lisbon Judgment of the German Constitutional Court, the Primacy of EU Law and the Problem of Kompetenz-Kompetenz: A Conflict between Right and Right in Which There is No Praetor’ (2011) 17(4) European Law Journal 470 Borchardt K, ‘The ABC of European Union law’ (March 2010) accessed 1 December 2014 Case C-106/77 Amministrazione delle Finanze dello Stato v Simmenthal [1978] ECR I-629 Case C-6/64 Flaminio Costa v ENEL [1964] ECR I – 585 Case C-314/85 Foto-Frost v Hauptzollamt Lübeck-Ost [1987] ECR I – 4199 Case C-26-62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration [1963] ECR I-1 Case C-14/83 Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR I-1891 Erne J, ‘Primary and Secondary Law-Making in the Renewed EU’ (2010) 14(3) TRAMES: A Journal of the Humanities & Social Sciences 250 Miller JL, ‘A new democratic life for the European Union? 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