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This eagerly awaited new edition has been significantly revised after extensive user feedback to meet current teaching requirements. The first major textbook to be published since the rejuvenation of the Lisbon Treaty, it retains the best elements of the first edition – the engaging, easily understandable writing style, extracts from a variety of sources showing the creation, interpretation and application of the law and comprehensive coverage. In addition it has separate chapters on EU law in national courts, governance and external relations reflecting the new directions in which the field is moving. The examination of the free movement of goods and competition law has been restructured. Chapter introductions clearly set out what will be covered in each section allowing students to approach complex material with confidence and detailed further reading sections encourage further study. Put simply, it is required reading for all serious students of EU law.
Constitutional and Institutional Law
European integration and the Treaty on European Union
A book about European Union law is a book about the legal system of a particular organisation: the European Union. The name of this organisation was not chosen randomly from a handbook. It was chosen on the basis of the mission of that organisation, namely the realisation of two particular ideals, those of ‘Europe’ and ‘Union’, which each carry a legacy of rich, complex and contradictory associations.
Europe may be the territory which stretches from the Atlantic in the West to the Urals in the East, and Europeans, the people of that territory.1 However, even this highly contested definition assumes shared traits which distinguish Europeans from non-Europeans, and their territory from other territories. These have evolved over the years, as the idea of Europe and European ideals have been invoked to justify a number of causes and beliefs, and, as a self-consciously European body, the European Union taps into and extends this heritage. Consider, for example, the Preamble of the 2004 Constitutional Treaty, which was to relaunch European integration andwill be discussed in chapter 2. The opening words state that its authors are:
DRAWING INSPIRATION from the cultural, religious and humanist inheritance of Europe, from which have developed the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law,
BELIEVING that Europe, reunited after bitter experiences, intends to continue along the path of civilisation, progress and prosperity, for the good of all its inhabitants, including the weakest and most deprived; that it wishes to remain a continent open to culture, learning and social progress; and that it wishes to deepen the democratic and transparent nature of its public life, and to strive for peace, justice and solidarity throughout the world
However, by wrapping itself in these ideals, the European Union cannot escape their contentiousness. Indeed, in this case, they are doubly so. They are contentious not only because some may disagree with them, but also because some may object to the European Union claiming ownership of them, seeing them as neither exclusively European, nor as justifying European-wide laws or government.
The European Union, however, also represents a break from this heritage, for it is a form of political union established to deal with a series of contemporary problems and realise a set of goals that individual states felt unable to manage alone. For these purposes, it comprises its own system of government and its own legal system. Nothing like it had existed previously nor has done so since its inception. It has been allocated a unique constellation of tasks, involves a unique set of institutions and has a unique political and legal identity. It is neither a state nor simply an international organisation. It is a peculiarly modern institution in that its daily practice focusses on the problems of the here and now, rather than dwelling on its position within European history. A consequence of this is that it is an institution in flux, as attitudes on what is to be accomplished and how this is to be done are constantly changing. As with any system of government, it has its own views on how economic and social relations are, and should be, conducted, and its own array of benefits, frustrations, mistakes, hierarchies and rivalries. All these need to be assessed in the light of the problems it is to address and how it has chosen to resolve those problems.
These two central agendas of the European Union – the development of European ideals and the government of the problems of contemporary Europe – are realised almost exclusively through EU law. Both sit at the heart of all EU law and elements of both permeate all the chapters of this book. In some areas there is a tension, imbalance or dysfunction between the two. In others, there is a dialectic between the two so that each is being revised in the light of concerns provoked by the other. In other fields, there is a healthy balance between the two. The balance is, however, never a static one. It is constantly changing as political beliefs change, the European Union’s institutional settlement evolves and the challenges of the outside world alter. However, each development is not considered anew. It is considered in the light of a long legacy: be this the history of the European ideal, the institutional settlement of the European Union or a policy whose inception and development goes back many years. To understand EU law and its current goals and challenges, it is necessary, therefore, to trace both the development of the European ideal and that of the European Union itself.
2. The idea of ‘Europe’
The most famous early reference to Europe is that found in Greek mythology. Europa is a Phoenician woman seduced by the Greek god, Zeus, to come from Lebanon to Crete.2 Europa was also, however, a Phoenician word that referred to the setting sun. From this, Europe was associated in Ancient Greece with the idea of ‘the West’. Originally used to designate the lands to the west of Greece, the usage shifted as the Ancient Greek territorial centre of gravity changed with their incursions into modern Turkey and Iran. In his wars, Alexander the Great used it to denote non-Persians and it became associated with the lands in Greece and Asia Minor (today’s Turkish Mediterranean coastline). Following this, the term was to lie largely dormant for many centuries. The Roman Empire and Christianity dominated in the organisation of political life and neither had much use for the term. Europe re-emerged as an important political idea from the eighth century onwards. It became an expression of a siege mentality. The advance of Islam led to Europe being associated with resistance to the religion, which originated in the South and the East. Charlemagne styled himself as the father of Europe, whilst an army of Franks which fought against the Moors were referred to as a ‘European army’. Resistance to Islam and the idea of ‘the West’ led to the association of Europe with Western Christianity. However, it was only from the twelfth century onwards that it was used to refer to a place whose inhabitants enjoyed a shared way of life based on Christian humanism, revolving around images of God and Christ portrayed as human.3 Alongside particular religious beliefs, Europe also became associated with a particular form of political economy, namely that of rural trade. Increasingly, the rural town became the centre of the local economy. Trade relations between towns expanded across Europe, so that from the fifteenth century onwards, trade flourished between the Italian ports in the south and Flanders in the north, in which the role of the merchant was pivotal. The final feature of this European region was the persecution of non-Christians, be they pagans or followers of other faiths, such as Judaism or Islam. Those whose conduct offended the central values of Christianity were also maltreated, such as heretics and homosexuals, as were those perceived as socially unproductive, in particular, lepers.
Developments in the sixteenth and seventeenth centuries were to set the dominant institutional context for the subsequent evolution of the concept of Europe. The establishment of the modern nation-state consolidated power in centralised, impersonal bureaucracies and led to certain core policies, such as tax, law and order and foreign policy, being the exclusive competence of these bureaucracies.4 This hegemony of the nation-state over political life led to Europe acquiring new associations in the eighteenth and nineteenth centuries. It became, increasingly, an ‘aesthetic category, romantic and nostalgic’, associated with utopian ideals. Authors such as Rousseau and Kant saw Europe as an expression of certain ideals: be it a social contract between nations, in the case of Rousseau, or as a form of perpetual peace, according to Kant. Europe was also considered to represent a shared aesthetic tradition:5 be this a common form of high culture, institutionalised through the growth of elite tourism in Europe at that time, or that of a historical civilisation, distinguishing it from the New World and justifying its colonialism.
The final twist came in the twentieth century and derives from the USA’s involvement in Europe. The role of the USA in two World Wars, the Cold War, and in the regeneration of Europe after the Second World War, heavily influenced European identity.6 The idea of Europe as a historically entrenched community has been reinforced. The other association has been of Europe as the Eastern borderlands of the USA. For those reverting to market democracy after forty-five years of communism, a ‘return to Europe’ means a turn to the West and to values that are associated unashamedly with the USA, namely those of free markets and constitutional democracy. In today’s Western Europe, Europe has acquired an alternative meaning, in that its values are similar to, but different from, those of the USA. Although there is a shared commitment to markets and constitutional democracy, these take a different form from those in the USA. There is an emphasis on the social market and on supposedly ‘European’ values, such as opposition to the death penalty, which are not considered present in the USA:
J. Habermas and J. Derrida, ‘February 15, or, What Binds Europeans Together: Plea for a Common Foreign Policy Beginning in Core Europe’ in D. Levy et al., Old Europe, New Europe, Core Europe: Transatlantic Relations after the Iraq War (London, Verso, 2005) 5, 10–12
[T]he spread of the ideals of the French revolution throughout Europe explains, among other things, why politics in both of its forms – as organizing power and as a medium for the institutionalization of political liberty – has been welcomed in Europe. By contrast, the triumph of capitalism was bound up with sharp class conflicts, and this fact has hindered an equally positive appraisal of free markets. That differing evaluation of politics and markets may explain Europeans’ trust in the civilizing power of the state, and their expectations for it to correct market failures.
The party system that emerged from the French revolution has often been copied. But only in Europe does this system also serve an ideological competition that subjects the socio-pathological results of capitalist modernization to an ongoing political evaluation. This fosters the sensitivities of citizens to the paradoxes of progress. The contest between conservative, liberal and socialist agendas comes down to the weighing of two aspects: Do the benefits of a chimerical progress outweigh the losses that come with the disintegration of protective, traditional forms of life? Or do the benefits that today’s processes of ‘creative destruction’ promise for tomorrow outweigh the pain of modernity’s losers?
In Europe, those affected by class distinctions, and their enduring consequences, understood these burdens as a fate that can be averted only through collective action. In the context of workers’ movements and the Christian socialist traditions, an ethics of solidarity, the struggle for ‘more social justice’, with the goal of equal provision for all, asserted itself against the individualist ethos of market justice that accepts glaring social inequalities as part of the bargain.
Contemporary Europe has been shaped by the experience of the totalitarian regimes of the twentieth century and by the Holocaust – the persecution and annihilation of European Jews in which the National Socialist regime made the societies of the conquered countries complicit as well. Self-critical controversies about the past remind us of the moral basis of politics. A heightened sensitivity to injuries to personal and bodily integrity reflects itself, among other ways, in the fact both the Council of Europe and the EU made the ban on capital punishment a condition for membership.
3. The idea of ‘European Union’
The unification of different regions within the nation-state led to its being perceived increasingly as a unitary political community. No such development occurred with regard to the idea of Europe. When independent proposals for a ‘united Europe’ emerged at the end of the seventeenth century, they were still firmly confederal in nature. Ultimate authority was vested in the state, with pan-European structures acting as little more than a fetter upon the autonomy of the states. In 1693, the English Quaker, William Penn, wrote An Essay Towards the Present and Future Peace of Europe. Penn suggested that a European Parliament should be established consisting of representatives of the Member States. The primary purposes of this Parliament would be to prevent wars breaking out between states and to promote justice. Its decisions would be binding upon states. A more far-reaching proposal was put forward by John Bellers in 1710. Bellers proposed a cantonal system based upon the Swiss model whereby Europe would be divided into 100 cantons, each of which would be required to contribute to a European army and send representatives to a European Senate.
The first proposal suggesting a Europe in which the state system was to be replaced by a system within which there was a sovereign central body, came from the Frenchman, Saint-Simon. In a pamphlet published in 1814, entitled Plan for the Reorganisation of the European Society, Saint-Simon took a romanticised view of the Middle Ages, which he considered to have been disrupted by the religious wars. He approved of the British parliamentary model and, therefore, considered that all European states should be governed by national parliaments, but that a European Parliament should be created to decide on common interests. This Parliament would consist of a House of Commons peopled by representatives of local associations and a House of Lords consisting of peers appointed by a European monarch. Saint-Simon’s views enjoyed considerable attention during the first part of the nineteenth century. Mazzini, the éminence grise of Italian nationalism, allied himself with Proudhon and Victor Hugo in declaring himself in favour of a united Europe. Yet, the nineteenth century represented the age of the nation-state and the relationship between that structure and that of a united Europe was never fully explored. Much of the talk took place amongst academics and reflected only renewed interest in Europe’s romanticised past or a wistful yearning for a utopian future, rather than anything concrete to be placed before decision-makers.
The balance was altered by the shock of the First World War, which acted as a stimulus for those who saw European union as the only means both to prevent war breaking out again between the nation-states and as a means of responding to increased competition from the USA, Argentina and Japan. Most prominent was the Pan-European movement set up in the 1920s by the Czech, Count Coudenhove-Kalergi.7 This move- ment not only enjoyed considerable support amongst many of Europe’s intellectuals and some politicians, but was genuinely transnational, having ‘Economic Councils’ both in Berlin and in Paris. During the 1920s, the idea of European unity received governmental support in the shape of the 1929 Briand Memorandum. This Memorandum, submitted by the French Foreign Minister to twenty-six other European states, considered the League of Nations to be too weak a body to regulate international relations and proposed a European Federal Union, which would better police states, whilst not ‘in any way affect the sovereign rights of the States which are members of such an association’. This proposal, despite being strongly confederal in that it acknowledged the authority of the nation-states, was still regarded as too radical and received only a lukewarm response from the other states.
A further shock, in the form of the Second World War, was needed to arouse greater governmental interest in the idea of a united Europe. The coming into being and development of, first, the European Communities, followed by the European Union, are explored in greater depth in the rest of this chapter. It is useful to consider for a moment how the creation of this political organisation with law-making powers, with the idea of Europe as its justification and its purpose, changed the geo-political context in which the idea of Europe was formulated. On the one hand, it has led to the perception of an increasing opposition between the idea of Europe and nation communities. The European Union has become an independent centre in its own right for the generation of understandings about Europe and European values and symbols. The European Union has, therefore, tried to replicate the symbols and tools of nationhood at a pan-European level – be it through the (re)discovery of European flags, anthems, Cities of Culture or common passports.8 This understanding of Europe, as a competing alternative to the nation-state, has been replicated by ‘Euro-sceptic’ groups, who see Europe as a centralised, monolithic entity which crushes local communities and self-government.9 On the other hand, the idea of Europe has become a justification for, and been associated with, government policy as the Union has become a vehicle through which national governments pursue and articulate their understanding of the national interest. On such a view, Europe does not act as a competitor to the nation-state but, rather, as a vehicle through which nation-states articulate their understandings of themselves and their place in the world:
M. Malmborg and B. Stråth, ‘Introduction: The National Meanings of Europe’ in M. Malmborg and B. Stråth (eds.), The Meaning of Europe (Oxford, Berg, 2002) 1, 9, 20
Europe is understood as a discourse and an ideological programme not necessarily in opposition to the nation-State or as an alternative to it . . . In national political debates ‘Europe’ often enters as a dimension of national identity rather than a project of transnational unification. The universal pretensions are downloaded and nationalized. Rather than ‘How shall Europe be united?’, the questions dwelt upon in public debate have been ‘How European is our nation?’ ‘How shall we relate ourselves to “Europe”?’ ‘To what extent should we be European, something else or simply ourselves?’
The authors then consider a number of examples, of which one, the Finnish case, is cited below.
Finland’s national history has been characterized by a strong awareness of being either on the brink of Europe or on the margins of Russia or somewhere in between . . . Meinander traces two basic conceptions of Finnish national identity: the Fennoman that stresses the indigenous features of Finnish culture and sees Finland as a cooperative borderland between the West and Russia, and the liberal that is akin to the Russian zapadniki in the sense that it prescribes close integration with the Western and European cultures. For the Fennomans, Russia was in a cultural sense never outside Europe, but the feeling of standing at the edge of Europe was reinforced by the Russian revolution, the Finnish civil war and the foundation of the Soviet Union, which effectively precluded any acknowledgement of the eastern layers of Finnish identity. The Finnish notion of Europe became increasingly polarized not least due to the experiences of Finland being left very much alone in the Second World War. Forced into a policy of friendly neutrality with the Soviet Union after the war Finland rediscovered its role as a mediator between East and West. The Finns began to admit that Russia, even in its Soviet manifestation, was a part of European civilization.
The accession to the EU in 1995 was supported by a feeling that the Finns had at last found an answer to two centuries of uncertainty and identity-searching. Finland had, as it were, ultimately found a synthesis of its two historical roles, to be both on the brink of Western Europe and serve as a bridge-builder toward a Europe that stretched to include Russia and Slavonic Europe. EU membership implies both an improvement of national security and an emotional homecoming.10
4. The European Communities and their origins
(i) From the Treaty of Paris to the Treaty of Rome
The origins of the European Union lie in a crisis provoked by the establishment of the Federal Republic of Germany in 1949. The Ruhr, which was then under the administration of the International High Commission, was due to be handed back to the Federal Republic, along with the Saar. French fears of emerging German industrial might were compounded by Germany’s increasing share of European steel production. The French response was a plan drafted by the French civil servant, Jean Monnet, which was known as the the Schuman Plan, after the French Finance Minister, Robert Schuman.11 European Parliament, Selection of Texts Concerning Institutional Matters of the Community for 1950–1982 (Luxembourg, OOPEC, 1982) 47.
Robert Schuman, Declaration of 9 May 195012
World peace cannot be safeguarded without the making of creative efforts proportionate to the dangers which threaten it.
The contribution which an organised and living Europe can bring to civilisation is indispensable to the maintenance of peaceful relations. In taking upon herself for more than 20 years the role of champion of a united Europe, France has always had as her essential aim the service of peace. A united Europe was not achieved and we had war.
Europe will not be made all at once or according to a single plan. It will be built through concrete achievements which first create a de facto solidarity. The coming together of the nations of Europe requires the elimination of the age-old opposition of France and Germany. Any action which must be taken in the first place must concern these two countries. With this aim in view, the French Government proposes that action be taken immediately on one limited but decisive point. It proposes that Franco-German production of coal and steel as a whole be placed under a common High Authority, within the framework of an organisation open to the participation of the other countries of Europe.
The pooling of coal and steel production should immediately provide for the setting up of common foundations for economic development as a first step in the federation of Europe, and will change the destinies of those regions which have long been devoted to the manufacture of munitions of war, of which they have been the most constant victims.
The solidarity in production thus established will make it plain that any war between France and Germany becomes not merely unthinkable, but materially impossible. The setting up of this powerful productive unit, open to all countries willing to take part and bound ultimately to provide all the member countries with the basic elements of industrial production on the same terms, will lay a true foundation for their economic unification.
This Plan formed the basis of the Treaty of Paris in 1951, which established the European Coal and Steel Community (ECSC).13 This Treaty entered into force on 23 July 1952 and ran for fifty years.14 It set up a common market in coal and steel, which was supervised by the High Authority, a body independent from the Member States and composed of international civil servants, which had considerable powers to determine the conditions of production and prices for coal and steel.15 The High Authority was, in turn, supervised by a Council, which consisted of Member State representatives. The Treaty of Paris was signed by only six states – the BENELUX states (Netherlands, Belgium and Luxembourg), Italy, France and Germany. The United Kingdom had been invited to the negotiations, but refused to participate, as it opposed both the idea of the High Authority and the remit of its powers.16
The origins of the next step in European integration started in 1950, during negotiations for the Treaty of Paris. The Korean War began, and the USA, perceiving an increased threat from Stalin’s Soviet Union, pressed for German rearmament and its entry into NATO, something which was inimical to the French.17 As a response, the French Defence Minister, Pléven, proposed a European Defence Community, which would be structured along similar lines to the ECSC. There would be a European army under a European Minister of Defence, administered by a European Commissariat. Once again, Britain was invited to join, but it declined on the basis that it preferred an expansion of NATO to the establishment of a European Defence Community (EDC). Nevertheless, a treaty establishing a European Defence Community was signed between the same six states which had signed the ECSC in 1952. However, the EDC failed. A less integrationist French government under Mendès-France assumed power, and French reverses in South-East Asia made it wary about ceding military sovereignty. In 1954, the French National Assembly refused to ratify the treaty.18
The failure of the EDC marked a moment of considerable political fluidity. The BENELUX states were increasingly worried by the nationalist policies of the Mendès-France government in France, in particular, its attempt to upgrade bilateral relations with Germany. In 1955, the Belgian Foreign Minister, Henri-Paul Spaak, suggested that there should be integration in a limited number of sectors, notably transport and energy. This worried the Netherlands as it threatened to restrict its efficiencies, particularly in the transport sector. The Dutch government responded by reactivating the 1953 Beyen Plan, which proposed a common market that would lead to economic union. A meeting of Foreign Ministers was held in Messina, Italy, in 1955. The British were invited, in addition to the six ECSC Member States, but did no more than send a Board of Trade official. Despite considerable French scepticism, a Resolution was tabled, calling for an Intergovernmental Committee, under the chairmanship of Spaak, to be set up to examine the establishment of a common market. As a carrot to the French, it was agreed that this should be done in tandem with examining the possibility of integration in the field of atomic energy. British objections to the supranational elements required for a common market entailed that they were unable to participate in the project.
Part I. EU Institutional Law: 1. European integration and the Treaty on European Union; 2. The EU institutions; 3. Union law-making; 4. The Union Judicial Order; 5. The authority of EU law; 6. Fundamental rights; 7. Rights and remedies in national courts; Part II. EU Administrative Law: 8. The infringement procedures; 9. Governance; 10. Judicial review; Part III. Civic Identity of the Union: 11. Union citizenship; 12. Non Union nationals; 13. Equal opportunities law; 14. Policing/justice; 15. External relations; Part IV. European Union Economic Law: 16. The internal market; 17. Economic and monetary union; 18. Free movement of goods; 19. Services; 20. Pursuit of occupation; 21. Public goods; 22. Competition law – functions and enforcement; 23. Anti-trust and monopolies; 24. State regulation and EU law.