Transcript Slide 1

1 April 2014
 What
is the point of institutions?
◦ Need ‘agents’ to carry out a mission
 And if MS are deprived of day-to-day
control, this promotes stable policies,
which in turn promotes investment and
legal security
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 What
t
is the point of having multiple
institutions?
◦ 1. Specialization / division of labor
◦ 2. Altro?
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The EU: an institution of many institutions
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Economic and Social Committee
 Committee of the Regions
 European Environmental Agency
 European Agency for the Evaluation of
Medicinal Products
 European Chemicals Agency
 EU Agency for Fundamental Rights
 Many others …
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Promotes the general interest of the Union;
takes appropriate initiatives (Art. 17 TEU)
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Many roles:
◦ - ‘Guardian of the Treaties’
◦ - Initiator of most EU legislation
◦ - ‘The Executive Branch’
◦ - Conducts external relations (but not CFSP)
 Humanitarian aid
 Trade relations
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25,000 employees (for 500 million citizens)
◦ U.S. executive branch: about 2 million
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Divided into about 33 Directorates-General
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◦ Agriculture / Climate Action
◦ Competition / Education and Culture
◦ Employment, Social Affairs, Inclusion / Enterprise
◦ Internal Market / Trade
◦ Many others
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Leader / manager / power to fire
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President is first approved by the
European Council on a vote by QMV
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Then – Lisbon raised EP’s profile in two
senses
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◦ 1. Must take account of the EP elections
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◦ 2. President is formally elected by the
EP itself
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28 people serving five-year, renewable terms
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The 26 are first proposed by their respective MS,
then affirmed by the Council in common accord
with the President
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Then the group of 28 must be approved en
masse by the EP
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◦ (Technically, after EP approval the group is finally
confirmed by the Council voting by QMV)
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A ‘collegiate’ body: Commissioners act as a
group
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But of course, Commissioners can disagree
◦ Can vote, but in practice the norm is to seek
compromise and, if possible, act by consensus
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On rare occasions, disagreements go public,
but since the President can force a
Commissioner to resign, this is risky for the
dissenter
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1. Guardian of the Treaties
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Commission “shall ensure the application of
the Treaties [and secondary law]” (Art 17(1)
TEU)
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Enforces the law against sister institutions
(Council), bodies, agencies (Arts 263, 265)
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Enforces the law against the MS (Action for
failure to fulfil obligations, Art 258 TFEU)
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Enforces the law against persons (Arts 101,
102)
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2. The ‘Right of initiative’: a ‘monopoly’ on the right
to propose legislation (Art 17 TEU)
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The ‘monopoly’ is more apparent than real
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◦ TFEU enables the Council (241) and the EP (225) to
recommend that the Commission make a proposal in
a given policy area; if the Commission fails to do so
it must justify its inaction
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◦ And informally, the Commission is in constant
contact with the other institutions, so they always
have some input
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◦ Citizens’ initiative (Art 24 / Reg 211/2011/EU)
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3. Executive powers
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Coordinating, executive and management
functions
Implements the EU budget
Administers the EU’s special funds:
◦ European Social Fund
◦ European Development Fund
◦ European Agriculture Fund
◦ European Regional Development Fund
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And other delegated and implementing powers
(Arts 290-291 TFEU)
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Council (of the EU) does not mean ‘European
Council’
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Council means ministers that act as
legislators
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European Council: Heads of State and
Government (plus Commission President); it
decides on the grand, political direction of the
EU
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Intergovernmental! National interests!
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One of the two main legislators (with EP)
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(Based on Eur Cncl Guidelines) Defines and
implements the Common Foreign and Security
Policy (CFSP)
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Forum for coordination of national economic
policies, employment policies, asylum/visa/border
policies and operational police cooperation
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Council never stays the same …
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The actors participating are national ministers
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Example, if a proposal for renewable energy is
being discussed, it is the Council, meeting as the
‘Environment Council’, that discusses the text
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◦ and the participants will be the national
ministers responsible for the environment
(assisted by a civil servant)
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Ten ‘Council’ configurations …
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General Affairs (consistency; prepares work of
European Council)
Foreign Affairs
Economic and Financial Affairs
Justice and Home Affairs
Employment, Social Policy, Health and Consumer
Affairs
Competitiveness
Transport, Telecommunications and Energy
Agriculture and Fisheries
Environment
Education, Youth and Culture
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Council meetings are chaired by the minister from
the MS that occupies the Presidency
◦ (Except Foreign Affairs Council – High Rep)
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The Presidency rotates every 6 months
2013: Ireland, Lithuania
2014: (now) Greece, July-December, Italy
2015: Latvia, Luxembourg
Since 2006, Presidencies work in ‘trios’ to carry
out an 18-month program.
Example: the trio right now consists of Lithuania,
Greece and Italy
Chair meetings
 Determine the agenda
 Facilitate compromise between the MS
 Represent the Council when it deals with the
institutions and bodies of the EU, e.g., during
the legislative process
 Overall, very heavy workload
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◦ Small MS can only handle it because they can
borrow resources in the trio context
Some measures can only be adopted by
unanimous vote (ad es. tax, foreign pol., pensions)
 But most are subject to QMV
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Authors of the Treaties of Nice and Lisbon have
given us complex definitions of QMV
◦ One system until Halloween
◦ A second system applies from 01.11.14 to 31.03.17
◦ A third system applies starting 01.04.17
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But here is a simple version: from 01.11.14,
Council votes by Double Majority. Three rules..
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1. At least 55% of the MS (so, 16 of 28); and
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2. total population of the MS forming the majority
must account for at least 65% percent of the
population of the EU; poi…
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3. ‘Anti-Triumvirate’ Rule: To block legislation,
there must be at least four MS opposing, and
they must represent at least 35% of the population
of the EU
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But in practice, most decision-making is done if
possible by consensus…
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The HSG + Comm. Pres., typically acting by consensus
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58 sitting around a table (min. 4 times/yr)
◦ (HSG, Foreign Ministers, plus Comm. Pres. & one other Comm.)
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Gives the EU “the necessary impetus for its
development and … define[s] the general political
guidelines thereof” (Art 4 TEU)
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Finally became an ‘institution’ of the EU (Art 13 TEU)
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And for the first time, Treaty (Arts 262-263 TFEU)
gives jurisdiction to ECJ to review acts of the
European Council if they having binding legal effects
on natural or legal persons
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Gives the EU its political direction
Resolves disputes that become seemingly
impossible to resolve at level of the Council
Defines principles / guidelines of the CFSP
Decides whether a revision of the Treaties is
required
Appoints the President of the European Council
Proposes to EP candidate for Pres. of the
Commission
Selects the High Rep for Foreign Affairs
Determines existence of a serious and persistent
breach of the EU’s founding values (including basic
human rights) – ex Art 7 TEU (leading to suspension of
privileges)
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New position following Lisbon: full-time President of
the European Council (no more 6-month rotations)
Term of 2.5 years, renewable once
Currently: Herman von Rompuy
Elected by European Council (QMV)
Must not be, contemporaneously, a national official
Tasks: prepares the work of the EC
◦ Chairs its meetings
◦ Seeks to facilitate consensus
◦ Handles foreign policy, without prejudice to the powers
of the High Rep
◦ Reports to the EP after each meeting of the EC
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Today (and especially since 1999), functions as colegislator with the Council
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Adopts EU budget jointly with the Council (OLP)
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Grants consent to certain international agreements
(if the subject would normally be legislated internally by OLP)
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May propose a Treaty revision to the European
Council
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Exercises political control over the Commission
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◦ Typically a Commissioner will submit a report to the
EP and then appear before it to defend the relevant
activities carried out over the last year
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Max. 750 + EP President
The greater the population, the more MEPs
allocated
Example (today):
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Germany,
99
France, Italy, UK
77
Spain, Poland
50
Poveri Estonia, Luxembourg 6
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Of course you have the center-right (EPP) and the
center-left (Alliance of Socialists and Democrats)
… and many others
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President of the EP, elected by the MEPs
◦ 14 VPs
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Current President: Martin Schulz (SPD), center-left
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Numerous committees and subcommittees
◦ 20 permanent ones
 Reviewing, amending and adopting legislation
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Court of Justice & the General Court (il Tribunale)
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So far, only 1 specialized court (Civil Service
Tribunal), judgments appealed to the GC
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Don’t forget the national courts, which can act, in a
sense, as ‘EU courts’ when they enforce EU law
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◦ And when they use the preliminary reference
procedure (Art 267)
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Main task of the ECJ and the GC:
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◦ to ensure that in the interpretation and
application of the Treaties the law is observed
(Art 19(1) TEU)
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ECJ: 28 (well paid) judges plus 11 (w. paid) AGs
◦ Each judge/AG has 4 (w. paid) referendaires
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GC: 28 (w. paid) judges, w/ 3 wp refs, basta
6 years, renewable. How is a judge appointed?
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First, a MS proposes judge of recognized
competence
◦ Or a non-judge – e.g., a professor (example: Kokott,
Mengozzi, Lenaerts, Van der Woude, etc.)
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Then an ‘Article 255’ panel assesses the
candidate’s qualifications
◦ 7 ex-members of the ECJ and GC, members of national
supreme courts, and one panelist appointed by the EP
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Role of the Advocate General
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◦ To make, in open court, a reasoned submission
and recommend to the ECJ how it should dispose of
a case (Art 252 TFEU)
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The AG does not participate in every case
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◦ Since 2003, he gives an opinion only if the ECJ
thinks that a case raises a new point of law
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Is the Opinion of the AG binding on the ECJ?
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Are AG Opinions important?
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The President:
◦ Three years, renewable
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Duties / powers:
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◦ Directs the judicial business and administration of
the Court
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◦ Can grant interim measures (misure cautelari)
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◦ Can suspend application of a contested act
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 E.g., can suspend enforcement of monetary
sanctions imposed buy the Commission or the
Council pending resolution of an appeal
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ECJ can sit as a ‘Full Court’, 28 (min. 15) judges
◦ Only in (very) exceptional cases
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As a ‘Grand Chamber’ – 13 judges (min. 9)
◦ Cases of complexity or importance
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Are Grand Chamber judgments more
authoritative as precedents?
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Otherwise, chambers of three or five judges
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Dissenting opinions by the judges?
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Three types: contentious, non-contentious and
‘consultative’
1. Contentious proceedings (non-exhaustive)
◦ Appeals against GC judgments on points of law
 Typically in actions for annulment
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◦ Actions against a MS for failure to fulfill
obligations under EU law (Arts 258-259)
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◦ Actions for annulment brought by a MS against
the Council and/or the EP (Art 263)
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◦ Actions for failure to act (Art 265)
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2. Non-contentious proceedings
= Preliminary references (Art 267 TFEU), Italian idea
◦ 60% of the 700 avg. annual cases
= Questions of EU law arising in a national court
◦ Either the interpretation of EU law
◦ Or the validity of EU acts (not national acts)
La ratio: uniform interpretation of EU law
Is it obligatory for a national court
◦ (i) to ask the ECJ for a ruling?
 Most courts versus ‘final’ courts
 Final courts: Acte éclairé, i.e., already decided, or –
Acte clair, i.e. obvious solution
◦ (ii) to follow the ECJ’s interpretation?
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3. (Binding!) ‘Consultative’ proceedings
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Council, Commission, EP or a MS can ask the ECJ
whether an int’l agreement w/ third countries or w/
IOs is compatible w/ the Treaties (Art 218(11) TFEU)
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If incompatible: must renegotiate or amend Treaties
Relevant today: EU is acceding to the ECHR
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If not invoked ex ante, no ex post mechanism to
attack the validity of an agreement
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◦ But (hypothetically…) an EU or national act that
implements the agreement can be set aside
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Organization and decision-making same as the ECJ:
(e.g., 6-yr terms, Grand Chamber, small chambers)
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As for jurisdiction, some differences:
◦ Actions for annulment, actions for failure to act
(Arts 263, 265)
◦ EU contractual liability (Art 272)
◦ Appeals from the EU’s specialized courts
◦ Competition law cases (appeals against Commission)
◦ Antidumping cases (e.g., where duties are imposed on
Korean manufacturers)
◦ Cases concerning EU trademarks
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Established on a proposal from the Commission
after consultation with the ECJ, or at the request of
the ECJ after consultation with the Commission
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Civil Service Tribunal
◦ Since Dec. 2005
◦ Seven judges
◦ Handles staff cases, e.g., denial of pensions,
dismissals, etc.
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For the future: maybe an IP tribunal to handle
the trademark cases …
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National courts: ‘juges communautaire de droit
commun’ (AG Bot in Case C-555/07, Swedex)
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◦ Ingenious, in that it is national courts, not a
supranational court, that rule on national acts
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ECtHR: For the ECJ, the ECHR is already a source
of inspiration
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◦ The ECJ has occasionally deviated from the
interpretations of the ECtHR
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◦ But if Draft Agreement is endorsed by ECJ, then
ratified by all sides (EU, MS and MS of CoE), acts of
the ECJ will be contestable before the ECtHR