Transcript International Business Law Part I

International Business Law
Part I
European Union
Law
A HISTORICAL
OVERVIEW
The European Union
Two main Ideas, two main Missions:
• Europe
• Union
Europe
A common set of values which can
distinguish Europe from non-Europe
=
EUROPEAN IDENTITY
European Union
The unification of all the States which take
part in the European Identity
HOW?
FUNCTIONALISM
• Step by step process (SPILL-OVER)
• Creation of supranational authorities
representative of, but independent from,
the Member States
INTERGOVERNMENTALISM
• Closer cooperation between sovereign
States
FEDERALISM
• Establishment of a European Federation
among independent, but no longer
sovereign, States
MULTI-LEVEL GOVERNANCE
• Relationship between the actors and
institutions involved at all the different
levels of governance
• Network structure
Schuman-Monet Declaration
9 May 1950
Unification of Europe
1. as the only means for longstanding
peace (a political project)
2. as a step by step project (first step: the
unification of a limited field, the coal and
steel production)
3. by means of a supranational
organizazion open to all countries willing
to take part
The Treaty of Paris
1951
The European Coal and Steel Community
(ECSC)
Six States:
• France
• Germany
• Italy
• Belgium
• Netherlands
• Luxembourg
The Treaties of Rome
1957
• [The European Defence Community (1953): failed]
• The European Economic Community (EEC)
• The European Atomic Energy Community
(EURATOM)
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Objectives: establishment of a common market (customs union, four
fundamental freedoms, competition policy, regulation of State intervention in
the economy, harmonization of fiscal regimes of goods, general cooperation
in economic fields)
Original institutional arrangement (Commission, Assembly, Council,
European Court of Justice)
During the 60s,70s, 80s
• 1973: First enlargement: UK, Ireland and
Denmark (resignation of De Gaulle)
• 1981: accession of Greece
• 1986: accession of Spain and Portugal
• 1986: Single European Act
Single European Act
1986
• Completion of the common market by 31
December 1992
• Institutional reform (cooperation
procedure; formal recognition of the
European Council)
• Laying down of foundations for greater
economic and monetary integration
• Intergovernmental cooperation in foreign
policy
During the 90s
• 1992: The Maastricht Treaty
• Application for membership by 12 Eastern
Europe States
• 1993: Copenhagen criteria:
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Stability of institutions guaranteeing democracy, the rule of law, human
rights, protection of minorities
Existence of a functioning market economy
Ability to assume the obligation of membership
Adjustment of the national administratve structures
• 1997: The Treaty of Amsterdam
The Maastricht Treaty
1992
• From the European Economic Community
to the European Union, from policies to
polity
• Three pillars:
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First pillar: The European Community (EC)
Second pillar: Common Foreign and Security Policy (CFSP)
Third pillar: Justice and Home Affairs (JHA)
(EC: supranational; CFSP and JHA: intergovernmental)
A single institutional framework
Main features
• Serious consideration of democracy and
legitimacy
• Institution of EU citizenship
• Introduction of the subsidiarity principle
The drama of ratification
• First referendum in Denmark: no (second
referendum in 1993: yes)
• British Parliament: motion of confidence
• Challenges to the Treaty before national
courts (UK, Spain, France, Denmark and
Germany)
The Treaty of Amsterdam
1997
• Area of Freedom, Security and Justice
(integration of Schengen
Agreements into the legal framework of the EU; immigration, asylum and the rights of
non-EU nationals brought within EC legislative competences)
• Third pillar renamed as Policing and Judicial
Cooperation in Criminal Matters (PJCC)
• Stronger commitment for fundamental rights and
enforcement of the principle of non-discrimination
• Provisions for “Enhanced Cooperation”
• Increasing number of opt-outs (a multi-speed European
Union)
After Amsterdam
Negotiations for membership opened with:
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Czech Republic
Poland
Hungary
Slovenia
Estonia
Latvia
Lithuania
Malta
Cyprus
Slovakia
Bulgaria
Romania
The Treaty of Nice
2000
• Institutional reform directed at preparing Union
for enlargement and at managing internal
dissatisfaction
• Different allocation of seats in the European
Parliament
• Recalculation of the distribution of the votes
between national government within the Council
• [a poor and unsatisfactory compromise]
• Proclamation of the Charter of Fundamental
Rights of the European Union (not legally
binding)
The way forward
• 2000: Nice: Declaration on the Future of
the Union
• 2001: Laeken: Declaration on the Future
of the European Union
• 2001: Laeken: Establishment of the
Convention on the Future of Europe (its
task: to draft the Constitutional Treaty)
The Constitutional Treaty
Rome 2004
TREATY
or
CONSTITUTION?
STRUCTURE OF THE CT
Four parts:
• Part I: general provisions on objectives,
symbols, fundamental rights, citizenship,
democracy, institutional framework, law-making
• Part II: Charter of Fundamental Rights (legally
binding)
• Part III: EU policies
• Part IV: closing provisions
• (Abolition of the three-pillar structure)
From Rome to Lisbon
•
May-June 2005: French and Dutch
referendum against the Treaty
• Period of reflection
• A two-fold process:
1. A political agreement (June 2007)
2. An Intergovernmental Conference with
task limited by the mandate of the
political agreement (December 2007)
The Treaty of Lisbon
2007
• Two Treaties (same legal value):
1. The Treaty on European Union
2. The Treaty of the functioning of the
European Union
• Abolition of all the “constitutional”
provisions
• The Charter of Fundamental Rights as
an annex to the Treaty
The Ratification Procedure
Very complex ratification for:
• Ireland (second referendum on 2 October 2009)
• Germany (sentence of the Federal Constitutional
Court, 30 June 2009)
• Poland
• Czeck Republic
• 1 December 2009: Entry into force
EU INSTITUTIONAL
FRAMEWORK
MAIN INSTITUTIONS
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European Council
Council
Commission
European Parliament
European Court of Justice
[European Central Bank]
[Court of Auditors]
EUROPEAN COUNCIL
COMPOSITION
• Heads of States or government of the Member
States
• President of the European Council
• President of the Commission
TASKS
• makes decisions about the future
institutional shape of the EU
• defines the development of the EU policies
• establishes the EU priorities (Agendasetting role)
PRESIDENT OF THE EUROPEAN COUNCIL
(Lisbon Treaty)
• is elected by the European Council for a once
renewabile two-and-a-half year term
• doesn’t hold national office
• is an additional member of the European
Council
TASKS:
• Chairs and drives forward the work of the
European Council
• Ensures cooperation between the EU institutions
• Presents reports to the European Parliament
• Represents the European Union externally
COUNCIL
COMPOSITION
• One Minister from each Member State (the
Minister who is equipped to represent the
government on the topic in question)
• Different formations depending on the
issue in question
POWERS
• Legislative functions jointly with the
European Parliament
• Decision to delegate normative powers to
the Commission
MANAGEMENT OF THE
COUNCIL
• PRESIDENCY
- rotation between the Member States for
a six-month period
- chairs Council meetings
- represents the Council outside
• GENERAL AFFAIRS COUNCIL
- ensures consistency in the work of the
different Council formations
DECISION-MAKING
• Now WEIGHTED system of voting: each
MS is allocated a number of votes
depending on its size
• From 2014 (or at most 2017): QUALIFIED
MAJORITY system (at least 55% of the
members of the Council comprising at
least 15 of them, and representing MS
comprising at least 65% of the EU
population)
COMMISSION
INTERNAL ORGANIZATION
Three tiers:
• College of Commissioners (political
branch)
• [Directorates-General (administrative
branch; similar to national Ministries)]
• [Cabinets (offices of the individual
Commissioners)]
COMPOSITION
• One Commissioner from each Member
State including the President and the High
Representative for Foreign Affairs (from
2014?)
• Persons whose independence is beyond
doubt (no conflict of interest)
APPOINTMENT OF THE
PRESIDENT
• Nomination by the European Council, after
appropriate consultation and taking into
account the result of the European
Parliament election
• Election by the European Parliament for a
five-year term
APPOINTMENT OF THE
COMMISSIONERS
• Nomination of individual Commissioners
by the President
• Collective approval of the President, the
list of Commissioners and the High
Representative for FA by the European
Parliament, after appropriate hearings
• Appointment by the Council for a five-year
term
POWERS OF THE PRESIDENT
OF THE COMMISSION
• Involvement in the appointment of
individual Commissioners
• Allocation of the individual portfolios
• Dismissal of individual Commissioners
(Lisbon Treaty)
• Political guidance to the Commission
• Representative role
POWERS OF THE
COMMISSION
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Delegated legislation
Legislative proposals and agenda-setting
Executive powers
Supervisory powers
HIGH REPRESENTATIVE
for FOREIGN AFFAIRS
and SECURITY POLICY
APPOINTMENT
• Appointed by the European Council with
the agreement of the President of the
Commission
• Collective approval (together with the
Commission President and the individual
Commissioners) by the European
Parliament
ROLE
The HR
• Is a member of the Commission
• Takes part in the work of the European
Council
• Chairs the Foreign Affairs Council
TASKS
Conduction of the EU foreign and security
policy with the aim of creating a more
integrated and coordinated external policy
EUROPEAN PARLIAMENT
MAIN FEATURES
• Aimed at representing peoples of the Member
States
• Initially made up of representatives from national
Parliaments
• From 1979 directly elected
• Proportional representation system
• Seats allocated from among Member States
(more or less) on the basis of population
• Lack of “European political parties”
POWERS
• Legislative power jointly with the Council
• Election of the Commission President
• Collective approval of the President of the
Commission, of the College of
Commissioners and of the High
Representative for FA at the beginning of
the term
• Dismissal of the Commission during the
term (motion of censure)
EUROPEAN COURT OF JUSTICE
INTERNAL ORGANIZATION
• COURT OF JUSTICE
• COURT OF FIRST INSTANCE (GENERAL
COURT)
• SPECIALISED COURTS (JUDICIAL
PANELS)
JURISDICTION
• Preliminary reference from national Courts
• Enforcement actions brought by the Commission
against European institutions or Member States
for breaching of European Union law
• Enforcement actions brought by Member States
against other Member States for breaching of
European Union Law
• Judicial review of European Community
institutions (recourse for annulments)
• Opinions on the conclusion of international
agreements by the EU
CONCLUSIVE REMARKS
• Each institution represents a different EU
component: principle of the
INSTITUTIONAL BALANCE
• Similarity to parliamentary system of
government but with relevant differences:
a European politics is still lacking
EUROPEAN UNION
SOURCES OF LAW
TREATY
ON EUROPEAN UNION
INTERNATIONAL SOURCE OF LAW
AND
THE “CONSTITUTIONAL CHARTER” OF
THE EUROPEAN UNION
EUROPEAN UNION
SOURCES OF LAW
• Acts passed by the European institutions
• Hierarchically subordinate to the Treaty
• Distinction between legislative and nonlegislative acts
TYPES OF EUROPEAN
ACTS
ART. 288 TFEU
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Regulations
Directives
Decisions
Recommendations and Opinions (not
legally binding)
REGULATION
• Has general application
• Is legally binding as a whole
• Has direct applicability (automatic
incorporation into the domestic legal order
of each Member State)
• Is aimed at uniformity of norms in all the
Member States
DIRECTIVE
• Is addressed to the Member States
• Is legally binding as the result to be achieved
• The choice of means and methods of
implementation is left to the national authorities
• A national transposition by the deadline stated in
the directive is needed
• Is aimed at harmonisation of norms in all the
Member States
DECISIONS
• Legally binding as a whole
• Binding only upon the addressee
• Similar to domestic administrative acts
LEGISLATVE PROCEDURE
CO-DECISION PROCEDURE
=
ORDINARY LEGISLATIVE PROCEDURE
LEGISLATIVE ACTS
ART. 289 TFEU
Legal acts adopted by legislative procedure
shall constitute legislative acts.
(Formal definition)
NON-LEGISLATIVE ACTS
• DELEGATED ACTS (ART. 290 TFEU)
• IMPLEMENTING ACTS (ART. 291 TFEU)
THE
CONSTITUTIONALIZATION
OF THE E.U. LEGAL
ORDER
PRINCIPLES
• PRIMACY
• DIRECT EFFECT
• DUTY OF CONSISTENT
INTERPRETATION
• STATE LIABILITY FOR BREACHING EU
LAW
FOUNDATIONS:
VAN GEND EN LOOS (1963)
• Teleological reasoning
• Reference to the people
• Right conferred on individuals directly by
Community Law
• Community as “a new legal order of
international law”
PRIMACY
COMMUNITY LAW TAKES PRECEDENCE
OVER
NATIONAL LAW
COSTA V. ENEL
1964
“The law stemming from the Treaty […]
could not be overridden by domestic legal
provisions […] without being deprived of
its character as Community law and
without the legal basis of the Community
itself being called into question”
AMMINISTRAZIONE DELLE FINANZE DELLO
STATO v. SIMMENTHAL
1978
1.
“In accordance with the principle of the precedence of
Community law, the relationship between provisions of
the Treaty and directly applicable measures of the
institutions on one hand and the national law of the
Member State on the other is such that those
provisions and measures not only by their entry into
force render automatically inapplicable any conflicting
provision of current national law, but […] also preclude
the valid adoption of new national legislative measures
to the extent to which they would be incompatible with
Community provisions”.
2. “Every national court must, in a case
within its jurisdiction, apply Community law
in its entirety and protect rights which the
latter confers on individuals and must
accordingly set aside any provision of
national law which may conflict with it,
whether prior or subsequent to the
Community rule”
DIRECT EFFECT
Nationals of Member States may on the
basis of Community law provisions lay
claim to rights which the national courts
must protect (Van Gend en Loos)
EARLY CRITERIA
FOR DIRECT EFFECT
Has direct effect in national legal order:
• A norm of the Treaty
• Clear
• Unconditional
• Containing a negative prohibition, not dependent
upon further implementation
• Only vertical direct effect (between a private
party and State)
LIBERALISATION OF
DIRECT EFFECT
(1)
RELAXING OF THE PREVIOUS CRITERIA
(Defrenne v. Sabena 1976)
Has direct effect in national legal order:
• A norm of the Treaty
• Sufficiently precise and unconditional
• Negative prohibition not needed
• Horizontal direct effect (relationship between private
parties)
LIBERALISATION OF
DIRECT EFFECT
(2)
DIRECT EFFECT OF DIRECTIVES
(Van Duyn v. Home Office 1974)
“Where the Community authorities have, by Directive,
imposed on Member States the obligation to pursue a
particular course of conduct, the useful effect of such an
act would be weakened if individuals were prevented
from relying on it before their national courts and if the
latter were prevented from taking it into consideration as
an element of Community law”
DIRECT EFFECT OF DIRECTIVES
WHEN
• From the end of the transposition period
• Only if the Member State has failed to
implement (“Estoppel clause”)
• No horizontal direct effect
DUTY OF CONSISTENT
INTERPRETATION
The national legislation is to be interpreted
in the light of EU law
(INDIRECT EFFECT)
EXTENT OF THE DUTY
(1)
Von Colson
1984
“It is for the national court to interpret and
apply the legislation adopted for the
implementation of the Directive in
conformity with the requirements of
Community law, insofar as it is given
discretion to do so under national law”.
EXTENT OF THE DUTY
(2)
Marleasing SA
1990
All national legislation is to be interpreted in
the light of EC Law, irrespective of whether
it is implementing legislation or not and
irrespective of whether it was enacted
prior or subsequent to the provision of EC
law in question.
WHEN
• Only from the end of the transposition
period
• If the Member State has failed to
implement
• Yes horizontal indirect effect
STATE LIABILITY
AN ACTION FOR COMPENSATION
AGAINST THE STATE FOR BREACH OF
EU LAW MUST BE AVAILABLE
Francovich and Bonifaci
1991
“It is a principle of Community law that the
Member States are obliged to make good
loss and damage caused to individuals by
breaches of Community law for which they
can be held responsible”
CRITERIA
FOR STATE LIABILITY
• The result prescribed by the Directive should
entail the grant of rights to individuals
• It should be possible to identify the content of
those rights on the basis of the provisions of the
Directive
• A causal link between the breach of the State’s
obligation and the loss and damage suffered by
the injured parties has to exist
EXPANSION
OF STATE LIABILITY
Köbler v. Austria
2003
“In the light of the essential role played by the judiciary in
the protection of the rights derived by individuals from
Community rules, the full effectiveness of those rules
would be called in question and the protection of those
rights would be weakened if individuals were precluded
from being able, under certains conditions, to obtain
reparation when their rights are affected by an
infringement of Community law attributable to a decision
of court of a Member State adjudicating at last instance”
EU LAW
and
ITALIAN LAW
CONSTITUTIONAL BASES
• ART. 11 Const.
“[…] Italy agrees to limitations of sovereignty
when they are necessary to allow for a
legal system of peace and justice between
nations, provided the principle of
reciprocity is guaranteed; it promotes and
encourages international organizations
furthering this end”
• ART. 117, par. 1
“Legislative power belongs to the State and
Regions in accordance with the
Constitution and within the limits set by
European Union law and international
obligations”
THE ITALIAN CONSTITUTIONAL COURT
CASE-LAW CONCERNING THE
SUPREMACY OF EUROPEAN LAW
FIRST PERIOD
DEC. n. 14/1964
• Dualistic approach
• European norms and national norms
possess the same binding authority: the
most recent one prevails
• Denial of supremacy
SECOND PERIOD
DEC. n. 183/1983 – DEC. n. 232/1975
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1.
Dualistic approach
Acceptance of supremacy
Two-folded judicial guarantee:
Direct application by national judges of
the more recent European norm
2. Declaration of unconstitutionality of the
more recent national norm (indirect
infringement of art. 11 Const.)
THIRD PERIOD
DEC. n. 170/1984
• Dualistic approach
• Direct application by the national judges of
every European norm, regardless of the
time of their enactment
• Irrelevancy of the national norm to state
the cases before national judges
RESIDUAL JURISDICTION OF THE
CONSTITUTIONAL COURT
1. Direct procedures between State and
Regions
Dec. n. 384/1994 – Dec. n. 94/1995
The national or regional norms conflicting
with European law are declared
unconstitutional
2. COUNTER-LIMITS DOCTRINE
Dec. n. 98/1965 – 183/1973 – 232/1989
The European law can NOT violate
fundamental rights or other basic values
protected by the Italian Constitution: if it
does so, the judge shall apply to the
Constitutional Court for judicial review of
European law (rectius: for judicial review of the part of the
Italian act of ratification of the European treaties on which the
contested European norm is based)
(SUPREMACY UNDER CONDITION)
3. European norms lacking direct effect
DEC. n. 170/1984 – DEC. n. 28/2010
When a conflict between a European norm
lacking direct effect and a domestic norm
arises, the judge shall apply to the
Constitutional Court for judicial review of
the domestic norm. The national provision
conflicting with the European one is
declared unconstitutional.
THE ITALIAN CONSTITUTIONAL COURT
CASE-LAW CONCERNING THE DIRECT
EFFECT OF THE EUROPEAN LAW
WHEN AND WHAT
Every European norm (other than regulations), if
clear and unconditional, can have direct effect in
the Italian legal order.
So
• Treaty provisions
• Decisions of the European Court of Justice
• Directives
can have direct effect, under the conditions fixed
by the Court of Justice.
PRELIMINARY REFERENCE FROM THE
ITALIAN CONSTITUTIONAL COURT
Ord. n. 103/2008
The first preliminary reference from the
Italian Constitutional Court in a direct
procedure between State and Regions:
the Constitutional Court can be qualified
as a “national jurisdiction”.