Transcript Introduction to the Law and Institutions of the EU

2). Institutional Changes
The TEU brought about five major institutional
changes (KD, p. 13)
i. Role of the EP heavily enhanced with a new
procedure known as “co-decision” (Article
251 EC)
ii. Parliamentary Ombudsman
iii. Committee of the Regions
iv. Court of Auditors
v. European Central Bank
66
3). New Areas of Competence
Expansion of existing areas of competence
and appearance of new areas of competence
which include social policy, education
vocational training and youth (TEC, Title XI),
culture (TEC, Title XII), trans-European
networks (TENs) in the areas of transport,
telecommunications and energy
infrastructures (TEC, Title XV)…
KD, p. 13
67
4). New Concepts
Two concepts in particular stand out…
68
4.1). Subsidiarity : Article 5 EC
• Power-sharing mechanism of competences between
the EC and the MS (in the areas of shared
competences)
• “… In areas which do not fall within its exclusive
competence, the Community shall take action, in
accordance with the principle of subsidiarity, only if
and in so far as the objectives of the proposed action
cannot be sufficiently achieved by the Member States
and can therefore, by reason of the scale or effects of
the proposed action, be better achieved by the
Community
Any action by the Community shall not go beyond
what is necessary to achieve the objectives of this
Treaty”
69
Two Tests Behind Subsidiarity
Test of “Comparative
Efficiency”
Two ideas…
1). The Community is to
take action only if the
objectives of that action
cannot be sufficiently
achieved by the MS
2). The Community can
better achieve the
action because of its
scale or effects
“Proportionality”
Test
If the Community does
take action, then this
should not go
beyond what is
necessary to
achieve Treaty
objectives
70
Subsidiarity Today
• Areas of shared competence are, inter alia:
the internal market, some areas of social
policy, economic and social cohesion,
environmental matters, transport, energy, the
area of freedom, security and justice, some
aspects of public health
• Provision largely taken up in Lisbon TEU , Art.
5(3)
• The concept of subsidiarity will be developed
later
71
4.2). Citizenship of the Union
• New Part 2 inserted into
the EC Treaty : Articles
17-22 EC
• Illustration of the move
away from the
economic focus on the
European being, i.e.
overt political
connection between the
Union and the nationals
of the MS
• Provisions largely taken
up in Lisbon TFEU, Art.
18-25
72
Article 17 EC
• No transfer of status from State to
European level : see Article 17(1) EC :
“Citizenship of the Union shall
complement and not replace national
citizenship”
• Is citizenship a symbolic plaything or
does it have substantive content ?
• Five identifiable rights
73
4.2.1). Right of Free
Movement and Residence
Article 18(1) EC…
EU citizens have the right to move and
reside freely in the Union provided they
and their families are engaged in the
internal market activity and/or are
financially self-sufficient
74
Supplemented By…
• Directive 2004/38/EC of the European
Parliament and of the Council on the right of
citizens of the Union and their family
members to reside and move freely within the
territory of the MS, in O.J. 2004 L 158, p. 77
(http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=
OJ:L:2004:158:0077:0123:EN:PDF visited 29
September 2009)
• Commonly known as the “Citizenship
Directive”: entered into force on 30 April 2006
• See in particular recitals 5 and 31
75
Illustrations
• ECJ, Case C-127/08, Metock and others, of
July 25, 2008 (not yet reported)
• Four cases that originated and were heard
together by the High Court (Ireland) which
stayed proceedings and referred the cases to
the ECJ for a preliminary ruling (Article 234
EC)(10 States intervened)
• Ruling by the Grand Chamber of the ECJ
76
i. Facts
• Nationals of Africa marry Union citizens (UK,
Germany, Poland) residing in Ireland. The
marriages took place shortly after their arrival
in Ireland; they were staying illegally in the
Union at the time of their marriage
• They request residence cards in Ireland
which are denied by the Minister for Justice,
Equality and Law Reform…
• The aggrieved petitioners introduce
applications for judicial review seeking inter
alia an order of certiorari quashing the
77
decisions of the Minister
ii. Issue
Can the spouse of a Union citizen
benefit from the provisions of the
Directive, irrespective of when and
where the marriage took place, and of
the circumstances in which he entered
the host MS ?
78
Arguments
• On the one hand, the applicants argue that,
as spouses of Union citizens, they have a
right to move and reside in the Union which
derives from the family relationship alone
(paras. 40-42)
• On the other hand, the Minister for Justice
argues that MS have discretion to impose on
nationals of non-member States who are
spouses of Union citizens a condition of prior
lawful residence in another MS (para. 45)
79
iii. Holding
• The provisions of the Directive cannot be
interpreted restrictively and must not be
deprived of their effectiveness (para. 84)
• Nationals of non-member States who are
family members of a Union citizen have the
right to join that Union citizen in the host MS,
whether he has become established there
before or after founding a family  the “prior
lawful residence” (PLR) requirement is
abandoned (rare overruling of an ECJ
precedent : Akrich judgment of 2003)
80
Holding (Contd.)
Nevertheless, due regard must be had
to Art. 27 of the Directive (public safety,
public security) and Art. 35 (marriages
of convenience)
81
4.2.2). Right to Participate in
Elections
• Article 19(1) EC  Right to vote and stand as
a candidate in municipal elections (municipal)
• Article 19(2) EC  Right to participate in
elections to the European Parliament
• Supplemented by Council Directive 94/80 of
19 December 1994 [1994] O.J. L 368/38
(covering the determination of the local
government unit and the issue of …
Luxembourg)
82
4.2.3). Right to Diplomatic or
Consular Protection
Article 20 EC  EU citizens have the
right to obtain diplomatic and consular
protection in a third state where their
own MS is not represented by a
permanent consular post or a diplomatic
mission, from any other EU MS having
a diplomatic mission there, on the same
conditions as nationals of that MS
83
4.2.4). Complaints
• Art. 21 (1st §) EC : right to petition the EP (+
Art. 194 EC). This right concerns EU citizens
proper, but also any natural or legal person
residing or having its registered office in a MS
: nevertheless, two limitations
• Article 21 (2nd §) : right to submit complaints
to the EU Ombudsman (+ Art. 195 EC)
84
4.2.5). (Contd.)
Art. 21 (3rd §) EC : right to apply to the
Community institutions in one of the
official languages and to receive a reply
in that language
85
Conclusions on the TEU
• Initial public disquiet and dissatisfaction : two
hurdles to clear (Denmark and the German
Bundesverfasssungsgericht in the Brunner
and Others v The European Union Treaty
[1994] 1 CMLR 57)
• Substantial improvements (e.g. enhancement
of the powers of the E.P. (co-decision
procedure of Art. 251 EC)), but a series of
ambiguities…
86
Most Notably…
Overlapping mix of supranational (EC)
features (Pillar I, Titles II-IV) and
intergovernmental (non-EC EU)
features (Pillar II, Title V and Pillar III,
Title VI) inherent in the structure of the
Union - two related consequences
87
Contd.
1. Increase in the variety of available legislative
procedures (e.g. Article 95 EC on the
internal market and Article 175 EC on
environmental protection) leads to an
increase in litigation : mutual incompatibility
between legal bases
2. Whilst the ECJ’s jurisdiction to control Union
competence outside the EC pillar is limited
(Article 46 TEU), the ECJ asserts its
jurisdiction in “inter-pillar” disputes
88
Contd.
• ECJ, Case C-176/03, 13 September 2005,
Commission v. Council [2005] ECR I-7879
• The case concerned a third pillar act - a
“framework decision” adopted on the basis of
Articles 29 and 34(2)(b) EU [contrast with
Article 249 EC] - imposing criminal sanctions
in defined fields of environmental protection
89
Contd.
• The Commission considered the matter fell
within the scope of the EC Treaty (Articles
174-175 EC on the protection of the
environment), hence the action before the
ECJ to annul the Framework Decision (Art.
230 EC)
• The Court agreed with the Commission and
annulled the Framework Decision as an
encroachment on the powers which Article
175 EC confers on the EC
90
Two Thoughts on Case C176/03
• The case hinges on the limits of the
EC’s role in shaping criminal law henceforth, why not use Article 95 to
harmonize criminal law?
• The case more broadly illustrates the
uneasy relationship between the EC
legal order and the intergovernmental
procedures found in the third pillar
91
Contd.
• In addition to the complexity of the new
“Union” structure, with its mixed bag of
institutional reforms, the TEU contained many
many opt-outs and exceptions (leading to a
loss of unity and coherence of the Community
legal order)
• Aware of its shortcomings, the TEU itself
provided for a further IGC to be convened in
1996  Treaty of Amsterdam (ToA) signed in
1997 (entry into effect on May 1, 1999)
92