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170 Cards in this Set

  • Front
  • Back

Intro: What effect did the treaty of Lisbon have?

No longer a three pillar structure

Intro: aims

transparency, efficiency and democracy

Intro: Legal personality

-ability to engage in transactions and contracts

-held to account in Court
-Art 47 TEU: has legal personality

-Internationally sign and conclude treaties

-represented internationally

-held accountable

Intro: external competences

-only act where there is a legal basis provided for by treaties

-vienna convention-international actors should be presumed to have competence, one they sign, on an assumption that they are bound, despite the lack of internal competence

-if no competence-theory of implied powers from external competence (ERTA)

-post ERTA-more explicit powers were added to avoid the ERTA doctrine

Intro: external competence: ERTA

-If no explicit competence for external action- doctrine of implied powers from competence for the same area of internal competence

-judicial activism?

Intro: external competence: Opinion 1/76

-confirmed Kramer position expanding ERTA doctrine

-an external competence can be inferred from the mere existence of an internal competence, without an actual exercise thereof

-BUT can only be implied if it would be impossible to realise EU policy through domestic measures alone (open skies judgments)

Intro: external competence: implied powers still exist?

-SEA (1986)-added external environmental action

-Amsterdam (1999)-CFSP

-Lisbon: Art 47- wording still vague "legal personality" not international legal personality

-therefore ERTA is still valuable

Intro: external competence: Art 216(1)

-may conclude treaties with third countries or international organisations where the treaties provide

-or where it is necessary to achieve one of the treaty's objectives

-or is provided for in a legally binding Union act

-or is likely to affect common rules or alter their scope

-lex generalis on implied powers

Intro: external competence: Art 3(2) TFEU

-exclusive competence for conclusion of international agreements when its conclusion is provided for by a legislative act

-or is necessary to enable Union to exercise internal competence

-or it may affect common rules or alter their scope

-lex specialis when powers are exclusive

Intro: MS competence: Open Skies and Lugano

-confirmed from ERTA that MS are deprived of external competence where international action might affect EU rules adopted at internal level

-where they lie within common EU rules or fall within an area largely covered by EU rules-EU should nevertheless be granted an exclusive power

Intro: Section dealing with competence in TFEU

-Articles 3-6

Intro: principle of conferred powers

Art 5 TEU

Intro: autonomy: COSTA v ENEL

-law of community flies from an autonomous source

-even where it cannot become a member often becomes an observer. e.g. UN

Intro: autonomy: Van Gend en Loos

-a new legal order within international law

Intro: autonomy: Opinion 1/100

-common aviation area

-COJ clashes with distribution of competence within the EU-could not participate

-preservation of autonomy of EU legal order requires that the essential powers of Union remain unaltered as conceived in the treaties

Intro: autonomy: Intertanko

-unreliable behaviour

-International Law of sea shielding EU from effect of the International Law

Intro: autonomy: Kadi


-court said need to respect IL and UN-COJ said in the case cannot obey sanctions without quesiton

-UN trespass on EU law and principles-more fundamental than rules of UN Charter

Intro: autonomy: monist or dualist?

-has previously been monist

-court reframing as more dualist as a consequence of autonomy
-consequence: direct effect of international treaties is compromised

Intro: autonomy: Racke

-international customary law does not have direct effect-but in light of international standards-can look at it but no explicit direct effect-a confusing judgment


CFSP: Article 21 TEU

-Generally how EU seeks to act on the world stage

CFSP: aims: Article 24 TEU

- competence of CFSP covers all areas of foreign policy and all questions related to the Unions security

-Council and European Council are to define and implement CFSP in principle by unanimity except where the treaties provide

-can only act in areas consistent with other EU external action

-has a residual quality-other policies may take priority/be more effective

CFSP: Article 4(3) TEU

-principle of sincere co-operation. MS bound to support EU's external action

CFSP: Article 24(3) TEU

-follow up from Article 4(3)
-Council and HR should enforce this

CFSP: its nature/legal character

-coooperation and coordination- no will to harmonise in this area, only the will to take a common stance

-intergovernmental nature

CFSP: birth

-official Maastricht-1/11/930 some forms of cooperation existed before this, was enshrined in TEU

-Pleven's European Defence Community-rejected by French Parliament
-European Political Community-idea of harmonised foreign policy

-1969* European Political Co-operation-actually made headway

CFSP: birth: European Political Co-operation

-co-operation between ministers of states

-the three "c"'s-consultation, confidentiality and consensus

-consensus/unanimity has survived

-informal and outside EU law-worked in public international law

-predecessor to current CFSP

-Falklands war-organised boycott against Argentina

-recognised by EU legal order in 1987 in SEA (but remained separate)

CFSP: birth: Treaty of Maastricht

-EPC enshrined in EU in form of CFSP- second pillar of EU

-rules suffered from lack of clarity and legal certainty

-decision making hampered by lack of continuity, requirement of unanimity and veto powers

CFSP: birth: Treaty of Amsterdam

-position of union vis-a-vis MS was clarified

-treaty making competence reinforced

-instruments clearly delineated

-position of HR was introduced

-minor possibilities for accepting decisions through QMV

CFSP: birth: Treaty of Lisbon:

-CFSP-complete overhaul to a more coherent policy

-streamlined and transparent


-transformed HR to what it is now
-streamlined legal instruments to the use of only decisions

CFSP: accountability gap?

-no court-only political assessment and review

-paired with democratic deficit-deficiency due to lack of involvement by Parliament

CFSP: unitary actor?

-NO- interplay between EU and MS

- not a single foreign policy but a common one

-maybe single would have been better sometimes e.g. Iraq

-as far as possible-one common approach

CFSP: intergovernmental

-perhaps second pillar never disappeared

-proposals by Commission

-power of veto

-no legislation-just decisions-executive acts

-cooperate and allign position
-more about policy not law

CFSP: European Council

Art 26 TEU

-identify strategic interests of the Union, determine objectives of CFSP, define general guidelines and adopt necessary decisions

-but most decisions adopted by Council

-broad role of sketching direction

-Art 42(2) TFEU- only institution that can decide to establish common defence

CFSP: President of European Council

-further development rests partly on shoulders

-power is limited and mostly informal

-works in tandem with HR

CFSP: High Representative

-Art 18 TEU

-(1)-Council responsible for selecting candidate and appointing by QMV-dismissed also by Council

-Art 27 TEU

-responsible for execution of CFSP

-most visible

-place in Commission (VP), European Council, presides over FA Council- bridging role

-makes proposals

-convenes Council meetings, submits initiatives and may refer questions

-Art 15(2) TEU-takes part in work of European Council

-Article 27(1) entrusts HR with representing Union for matters relating to CFSP

-must consult Parliament (Art 36 TEU)

-European External Action Service at his disposal

CFSP: Council of Ministers (FAC)

-bulk of decision making

-frame CFSP and adopt decisions on basis of guidelines of European Council

-appoints Special Representatives mandated with particular policy issue

-arguably LEGALLY plays most prominent role

CFSP: Member States

-may submit initiatives and proposals to Council and refer questions to it (Art 30(1) TEU)

-Art 32 TEU- loyalty and solidarity MS should express to EU and Treaty partners

-Art 32(4) TEU- must consult with each other on CFSP matters, forbidden to take action in areas which may affect EU interests
-Art 34 TEU-should co-ordinate actions

CFSP: European Parliament


-accountability decifit?

Art 36-must be consulted by HR

-holds debates twice a year on CFSP and CSDP

-put questions or recommendations to HR

-has budgetary role

CFSP: Commission

-Art 21(3) TEU- ensure consistency between different areas of external action and EU policies

-President may be able to exert influence in position as member of European Council

CFSP: European External Action Service

-Art 27(3) TEU

-diplomatic service

-broader assisting body-helps out HR
-central admin organised in Directorates-General

CFSP/CSDP: EU military Committee and Military Staff

-committee is highest military body, composed of chiefs of defence of MS

-EU military staff in house expertise for HR

CFSP/CSDP: Civil Planning and Conduct Capability

-part of EEAS

-autonomous operational conduct of civilian CSDP operations

CFSP/CSDP: EU Situation Centre, Satellite Centre, Institutefor Security Studies, Security and Defence Collegeu

situation centre-most sensitive security organ, crucial data input from national secret services

institute-agency which operates like a think tank

CFSP/CSDP: European Defence Agency

Article 42(3) TEU-o identify operational requirements, promotemeasures satisfying those requirements and to contribute to identifying andimplementing any measure needed to strengthen the industrial and technologicalbase of European defence o Article 45 elaborates in detail


-cannot act in the way of judicial checks and balances

-Art 271(1) TFEU-court generally excluded

-Art 275(2) TFEU-two limited exceptions

CFSP: Political and Security Committee

-high ranking civil servants of foreign department of MS

-Art 38 TEU

-monitor international situation and implementation of policies

-contribute to definition of policies by delivering opinions to Council

-exercise political control and strategic direction of crisis management operations

CFSP: EU Special Representatives

-Art 33 TEU-entrusted in particular policy areas

-carry out mandate under HR

-9 in office currently

-promote unions policies in selected, often troubled parts of the world

CFSP: Decision making: decisions

Article 31- decisions

Article 31(2) QMV in 3 cases
-adopting decision defining EU action/position on basis of decision of European Council that related to EU's strategic interests/objectives

-adopting decision on proposal from HR

(only do this where first European Council acted unanimously in deciding HR can make a proposal)

-when adopting a decision implementing a decision defining EU action/decision
-when adopting special rep

CFSP: Decision making: procedural issues

Art 31(5) TEU when procedural can act by simple majority

CFSP: Decision making: expanding QMV

Bridging clause

Art 31(3) TEU- can be extended in future (by unanimous vote) but NEVER if they relate to military or defence

CFSP: Emergency brake procedure

Art 31(1) TEU-even when they decide by QMV, MS can object to a vote by QMV

-preference is still for unanimity

CFSP: decision making: Article 25 TEU

-Most general guidelines for CFSP decision making

CFSP: decision making: Article 26 TEU

-old "common strategy"

-European Council main actor

-provision not used so often

-general and directed towards the long term

CFSP: decision making: Article 28 TEU

-Reflects old "joint actions"

-bit more specific

-EU sets out to change and deploy resources

**Key vehicle of CFSP

-MS committed to positions they adopt

CFSP: decision making: Article 29 TEU

-similar to common strategies but these "common position" decisions are more directed to short/medium term

-MS must ensure national policies conform to Union positions

-deals mostly with sanctions

CSDP: the beginning

-reached full operational status 1999

-first "sketchy" provisions in Maastricht Treaty

-kick start at 1992 summit of Western European Union "Petersburg Declaration"

-1998 Franco-British summity- EU need stronger presence in defence and secturity

-European Council summit Cologne-put down ideas transferred Petersberg operations to EU

-"Helsinki Headline Goals" drawn up

-Amsterdam- Art 17 TEU-common bedrock

CSDP: Lisbon

-Section 2, Chapter 2 of Title V TEU 42-46

-Art 42(2) TEU-progressive framing of CDSP, envisaging creation of European Army (but would clash with NATO obligations)

-Art 42(7) mutual assistance clause

CSDP: Petersberg tasks

-Art 43 TEU-Revised and enhanced

CSDP: Missions

-Art 42(1) TEU-use means as a mission outside EU Territory:

1) peacekeeping

2) conflict prevention

3) strengthening international security

CSDP: peacekeeping

What counts?

-EU servicemen resorting to broader use of force while remaining within the boundaries of international humanitarian law

-EU does not have the political standing to take part in robust peacekeeping measures anyway

CDSP: role of Council

-must decide to launch CDSP operations-take a decision of joint action type

-Art 43(2) applies lex specialis to 42(4)

CSDP: type of missions

-first Jan 2003- former Yugoslavia-civilian and military

-more than 20 since

-size and scale varied

CSDP: resources

-MS responsible for providing civilian and military needs

-EDA plays pivotal role

CSDP: European Defence Agency

5 tasks: Art 45 TEU

-HR head of board of EDA

45(2) MS may choose for themselves whether to participate in its activities

-first major achievement "Code of Conduct on Defence Procurement" (voluntary and non-binding but was immediately adhered to)

-established special regime flies in the face of primary and secondary EU law (expanded MS ability under Art 346 to be exempt from internal market/competition rules in the case of military procurement-which is not meant as a categorical exemption-only where NECESSARY)
-public procurement Directive says procurement must be transparent and non-discriminatory-this CC provides otherwise

CSDP: capabilities/expectations gap

-HHG-MS said 2003 would be able to deploy and sustain forces capable of full Petersburg tasks-ready for deployment 60 days and within that time deploy smaller rapid response elements

2003-progress made but number still to be achieved. NEW goal 2010

2007-EU battle groups-1500 men 3 diff MS ready for command in 10 days, to engage in desired theatre of operations-15 days

-2007-Civilian Headline Goal laid down-ensure EU can conduct any type of crisis management. 2010-objectives fulfilled on paper-time and practice will tell

CSDP: European Security Strategy

-2003-first attempt-mid-long term strategies of union

-2008-first report on implementation-partial revision

-new one likely to be churned out by every HR

CSDP: Current European Security Strategy: threats

4 key challenges and threats:

-terrorism and organised crime

-proliferation of weapons of mass destruction

-regional conflicts and state security

-cyber security, energy security and climate change

CDSP: Current European Security Strategy: objectives

4 strategic objectives:

-address threats as early as possible with a variety of instruments

-build security in neighbourhood and promote a ring of well-governed bordering countries

-contribute to the establishment of an international order based on effective multilateralism

-increase EU's effectiveness with appropriate administrative and command structures, improved capabilities, well-trained staff and better support, employing a "people-based approach"

CDSP: European Security Strategy: legal status

-remains questionable-2003 edition not tagged as an official common strategy-not adopted on a legal basis

-more ambiguous than many of the soft law instruments-no concrete targets, rights or obligations

-perhaps next one should be based on Art 26 TEU

Treaty Making: Article 218 TFEU

-Commission or HR explore possibilities

-they submit recommendations to Council

-EP then must be fully informed (218(10))

-committee of Parliament briefed that Council plans to open negotiations

-Council takes deicisions authorising opening of negotiations

-Parliament regularly briefed-able to exert influence

-once negotiations concluded-proposed text submitted to council

-Council may the adopt decision authorising signing

-Parliament either asked for consent or consulted

-Council may then adopt decision concluding the agreement

Treaty making: when is Parliaments consent needed

-special legislative procedure

-where 294 TFEU applies

Treaty making: decision making

-Council takes decisions by QMV

-unless an area where internal action also requires unanimity

Treaty Making: Common Commercial Policy

Art 207-special procedure

-Commission main negotating role-Commissioner for external trade matters

-permanent committee always engaged and active-Trade policy Committee (provides feedback to Council)

-Decision making: QMV but some exceptions of unanimity

-also exceptions to Parliamentary involvement

Treaty making: ratification

exclusive competence

-ratified with conclusion by Council

shared competence/mixed agreements:

-only final once all MS have ratified in accordance with domestic constitutional requirements (218(8) TFEU)

Treaty making: court consultation

Art 218(11) TFEU

-Optional but regularly employed

-binding in its entirety

-idea-prefer prevention to cure

-overall purpose must be known before ECJ can pronounce itself
-where agreement has been concluded already-Court will not give an opinion

Treaty Making-contesting an agreement

Correct action: action for annulment (art 263 TFEU)

Role of Court: why exclude from CFSP

-didn't want to constrain MS-room for manoever in politically sensitive area

-nature of measures-not lend well to judicial review-not intended as proper legislation

-fear of judicial activism-didn't want to extend scope of CFSP

Role of Court: ECOWAS

-was court able to review legality of CFSP decision claimed to affect exercise of external EU competence?

-Art 47 TEU-none of provisions of EC treaty to be affected by provisions of EU treaty-had to ensure didn't encroach on powers

-FOLLOWED: court able to rule on merits of an action for annulment brought against CFSP act

Role of Court: Art 275 TFEU

two exceptions to general exclusionary rule:

-court may monitor whether CFSP acts don't encroach on other primary/secondary rules of EU law-now works vice-versa

-ECJ entitled to rule on actions for annulment, reviewing legality of measures adopted by Council that impose restrictive measures on natural/legal persons

Role of Court: Kadi

-able to review legality of every EU legal act-including those giving effect to UN Security Council resolutions

-emphasises autonomy of EU

Role of Court: Hautula

-MEP wanted access to documents, CFSP, in the nature of transparency documents should not be withheld

Role of Court: Mauritias agreement case

-not a new exception but recent case
-Parliament able to use border surveillance in interesting way-democratic procedure bypassed

CCP: birth

-already present at very beginning in EEC Treaty

-Common Customs Tariff was set up for goods coming from third countries

-common external trade policy

CCP: three main objectives

Art 206 TFEU

-contribute to harmonious development of word trade
-progressive abolition of restrictions on international trade and foreign direct investments

-lowering of customs tariffs and removal of other types of barriers

CCP: measures

-regulations adopted on basis of 207(2) TFEU

-International agreements adopted on basis of 207(3) TFEU (Can be bilateral or multilateral, with countries, governmental or non-governmental organisations- e.g. TTIP, wine agreement with Australia

CCP: decision making

-ordinary legislative procedure (Art 218 TFEU)

-certain exceptions

Art 22 TEU- European Council plots overall course- decisions taken by unanimity

Art 207(4)- with more immediate impact taken by Council acting by QMV, and unanimity in specific fields

CCP: Commission

-sole responsibility for making recommendations to Council

-If Council gives blessing-Commission also responsible for conducting negotiations

CCP: 133 Committee

-Article 207(30)
-named after previous article

-group of MS representatives

-assists Commission in making recommendations to Council

-Council often laid down extensive guidelines and some red lines

CCP: Scope: Opinion 1/75

-ECJ thought CCP should build gradually and it was principally exclusive competence

CCP: Scope: Opinion 1/94

-suprising retreat

-all WTO agreements pertaining to goods fell within CCP

-Agreements on trade in services could not be excluded-but only cross border services and service provision

-other limitations also found e.g. IP

-competences SHARED

CCP: Scope: Treaty of Amsterdam

-Council expressly empowered to extend scope of CCP whenever necessary or desirable

CCP: Scope: Treaty of Nice

-scope considerably expanded

-competence to conclude GATS and TRIPS type agreements reserved for EC

CCP: Scope: Lisbon

Opinion 1/94 only temporary fallback

Art 3(1) TFEU-CCP as area of exclusive competence

EU and IL: monist or dualist?

-monist but signs of retreat

EU and IL: GATT: International Fruit Company

-GATT provisions do not have direct effect
-insufficiently precise and unconditional

EU and IL: GATT: Fediol and Nakajima

2 exceptions to a lack of direct effect:

-if challenged EU measure expressly refers to the GATT provision

-if it was intended to implement a GATT obligation

EU and IL: WTO: Portugal and Council

-stuck to earlier position concerning GATT

EU and IL: WTO: Hermes

-indirect effect or harmonious interpretation

-Van Colson extended to GATT and WTO

-but cannot be applied contra legem-doctrine useless?

-Court willing to give due regard to international trade law despite lack of direct effect

-mostly political institutions to ensure compliance with international trade rules

CCP: Regulation 3286/94 (in reader)

-alerting mechanism for EU to remove barriers to external trade
-Art 3-any natural or legal person acting on behalf of community

Art 4-MS may also make a referral

Art 5-complaints procedure

Art 12(3)- must go to WTO first before taking action or would be violating obligations

CCP: Reg 1515/2001 (in reader)

Measures to be taken by EU post consultation with WTO

Interface between EU and WTO

-Beginning- difficult for EU to be part of original GATT-created before 1947

-no real clash with MFN -Art 24 GATT- exception for customs union/free trade areas

-denied direct effect

Trade: Community Customs Code

-revised in 2008 to Modernised CCC
-national customs authority classify goods

-value assessment

-rues of origin-clarity over what origin of good is

Where application causes dispute-take to court

Trade: Tariff Rules

Reg 732/2008-Regulation of Generalised Tariff Preferences

-objective is to contribute to reduction of poverty, sustainable development and good governance

-reduction or elimination of customs for poorest countries (LDC'S)

Trade: Everything but arms

-tariff agreement

-arms excluded

-banana, sugar and rice phase in

Trade: General Import Regulation

Reg 3285/1995

-imports should not be subject to QR's

-provides for the adoption of safeguard measures

Trade: exports

-Reg 1334/2000 dual use items regulation

-focuses on possible export controls

-dual use refers to military and civilian

Trade: anti-dumping

Reg 1225/2009 (in reader)

-falls within scope of CCP
-solidly legally anchored in Article VI of GATT and WTO anti-dumping agreement-authorised as long as it stays in specified margins

-no direct effect means however that it's difficult to proceed against EU measures which may overstep margin

-EU have taken more liberal approach to anti-dumping-particularly locus standi under Art 263

-different rules for non-market economies and specific rules for China and Russia


Trade-anti-dumping-reasons for measures

-eliminate trade distortions

-restore effective competition

Trade: anti-dumping: sanctions

imposed after the fulfilment of 3 conditions:

-finding of dumping

-determination of injury to community industry

-in interest of community to impose such a sanction

comparison between export-price and normal price "constructed normal value"

-normal price calculation must be fair

Trade-anti-dumping: procedure

-number of procedural rights e.g. right to be heard

-but no real judicial scrutiny of decisions

Part V, Title III TFEU

Different rules for

-development cooperation

-economic, financial and technical cooperation

-humanitarian aid

-started off as by product of other external policies

-traditionally belonged to area of MS exclusive competence

cooperation with third countries: Opinion 1/78

condoned inclusion of rules in CCP that promoted other interests

-despite exclusivity of CCP-participation of MS required due to funding the schemes

-competence remained shared

cooperation with third countries: Bangladesh case

-even greater reticence to supranational humanitarian competence

-signalled shared competence confirmed by progressive treaty amendments

cooperation with third countries: Maastricht Treaty

-development cooperation received official place in primary law

cooperation with third countries: Nice Treaty

inclusion of economic, financial and technical cooperation

cooperation with third countries: Lisbon Treaty

-humanitarian aid introduced

Development cooperation

Articles 208-211 TFEU

-208 (1)- main aim is reduction of poverty

-secondary aims:

-contribute to rule of law and democracy, improve respect for fundamental rights

-Art 209(1)-ordinary legislative procedure applies

-Art 209(2)- basis for adopting international agreements

Economic, financial and technical cooperation

-art 212-213

-212(2)-ordinary legislative procedure applies

-212(3) basis for adopting international agreements

humanitarian aid

art 214

-to provide ad-hoc assistance, relief and protection for people in third countries

-214(3)- ordinary legislative procedure applies

-214(4)- basis for adopting international agreements

cooperation with third countries: competence

-Art 4(4) TFEU-shared competence

BUT lack of right of pre-emption "shared parallel competences"

210(1) must coordinate and complement policies

cooperation with third countries: Commision

Art 210(2) TFEU- may take measures to promote smooth cooperation

Development Cooperation Instrument

-from European Investment bank

European Development Fund

-from MS

-mainly for Africa, Caribbean and Pacific

Directorate-GeneralEuropeAid Development and Cooperation

-initiates all development policy initiatives

-co-ordinates political and financial relations with individual countries, with regional political and economic communities and the OCT

-supervises and manages all development assistance schemes

Criticisms of cooperation with third countries

-EU's power base is weak

-funding not consistent between MS

-effectiveness of EU aid has been questioned-quality and quantity

-most money goes to middle income countries not lowest

-MS favour geographically closer countries

-legitimacy deficit

EEP: complaints

-high level of bureaucracy on matters that are remote and insufficiently evidence

-administrative burdens on MS

BUT joint action avoids race to the bottom

EEP: beginning

-1972 Environment Action plan-legal basis in general competence clause (now 352 TFEU)

-SEA 1987- separate title on environment as well as policy linking clause: must take environmental issues into account when drafting law and policies

-Maastricht and Amsterdam-sutainable development one of Unions main objectives

EEP: central objectives

Art 191(1) TFEU

EEP: guiding principles

Art 191(2) TFEU

Precautionary principle-where side effects unknown, should refrain from taking measures

Proximity principle-move as close to root of problem as possible

Polluter pays principle

EEP: tensions with CCP

-hard to find areas of CCP which EEP does not enter and vice versa

-legally of different nature: CCP exclusive competence, EEP shared

-although EU can expand competence using ERTA mechanism there remains many areas in which MS are free to act

-procedure: QMV but in CCP sometimes unanimity

-also special legislative procedure for certain measures in EEP

EEP: tensions with CCP: Cartagena Protocol

-court decided mixed agreement under Art 192 TFEU (EEP)

EEP: Tensions with CCP: Energy Star Agreement

CCP was to be used as had a direct impact on trade but environmental impact would only manifest itself in the long term

EEP: tensions with CCP: Rotterdam Convention case

-a hybrid, had to be concluded on a dual legal basis

-CCP and EEP not irreconcilable

-BUT shouldn't be used too often, flies in face of lex specialis, attribution of powers principle and prohibition of detournement de pouvoir

-two separate regimes-kept that way as much as possible

EEP: 1997 UN Conference in Kyoto

-Eu committed MS to reduce carbon emissions by 8% by 2012

EEP: Emissions Trading System

-created in 2008

-binds 6 key industries in regards of amount of CO2 that can be emitted

-allowances can be traded so reductions used where they are most cost-effective

EEP: EU Climate change package

-include aircraft emissions in trading scheme from 2012

EEP: ETS Directive

-amended 2009

-national allocation plans to be replaced with harmonised system of auctioning and free allocation through single wide Union rules

-Environmental NGO's divided over efficiency of system- a distraction from more necessary action?

-limited success if non-EU countries do not follow suit

HR policy: early case law

-Van Gend en Loos-supremacy of EU law-worry that this would be at expense of HR (Solange for example)

Stauder, Nold, Internationale Handelsgesellschaft-Court willing to create autonomous catalogue of rights

-base level of protection must be afforded throughout the Union

HR policy: Maastricht Treaty

-Article 5(2)-respect for FR was guaranteed by ECHR and as a result of constitutional traditions common to MS

HR policy: Amsterdam

-provision included in M treaty rendered justiciable

HR policy: Lisbon

-Article 6 TEU: Legal basis for ascension to ECHR and gave binding force to the Charter

-Article 2 TEU: EU founded on values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for HR

-Article 21(1) TEU- HR listed among principles that guide EU action on international scene

HR policy: Opinion 2/94

-for quite some time could only enter into agreements that did not have a principle FR objective

HR policy: Treaty of Amsterdam

-explicit legal basis for adopting internal measures to combat discrimination with implied competence for external action

HR policy: now: human rights conditionality

-bilateral and multilateral agreements predicated on full respect for human rights

-once treaty partners fail-agreement suspended or terminated

-"non-compliance" clause-party can take appropriate measure where the other party fails to adhere to HR obligations

HR policy: 2001 Commission Communication: goals

3 ways EU forge ahead on global scene:

-promoting coherent and consistent policies in support of human rights and democratisation

-placing higher priority on human rights and democratisation in relations with third countries; a more pro-active approach

-adopting a more strategic approach to the European Initiative for Democracy and HR

HR policy: 2001 Commission Communication: thematic priorities

4 thematic priorities:

-strengthen democratisation, good governance and the rule of law

-provide support for activities for the abolition of the death penalty

-provide support for fight against torture and impunity, for international criminal courts and

-combat racism, xenophobia and discrimination against minorities and indigenous peoples

HR policy-European Instrument for Democracy and HR

-replaces and builds on earlier initiative for countries most at risk

-supports actions in areas covered by EU guidelines

-primarily a financial instrument through which aid can be granted where it is most effective-can also be deployed without consent of governments of third countries concerned

Association Agreements: provisions

-Article 217 TFEU-only real provision on AA

-Art 8 TEU-additional legal basis for associations in direct neighbourhood

-absence of strict definition of content

Association Agreements: outcomes

-access to internal market under more favourable conditions

-joint shouldering of burdens

-resolution of difficulties in good faith

-now HR conditionality

Association Agreements: Demirel case

"an association agreement creating special privileged links with a non-member country which must, at least to a certain extent, take part in the community system"- a kind of definition

-direct effect of AA's where three conditions are met

Association Agreements: treaty making

Article 218 TFEU

218(8) exception to QMV-unanimity in Council

218(6)(a)(i) Parliament must give its consent

-almost always concluded as a mixed agreement- subject to ratification in all MS

Association Agreements: Association Council

-reps of MS gov, Council or Commission and reps of third country gov

-takes decisions on further implementing AA

usually by unanimity due to political sensitivity

-does not meet very often unlike the committee

Association Agreements: Association Committee

-daily admin

-preparatory/exectuive powers may be delegated by association council or agreement itself

-often made up of designated representatives of members of Association Council

Association Agreements: Advisory Parliamentary body

-MEP's or MS's MP's and MP's of third countries

Association Agreements: judicial body?


association council main arbitrator

-preliminary questions can be referred to ECJ on questions of interpretation or interpretation

Haegeman ruling-can be invoked before national courts

Association Agreements: Legal Effect

-directly effective subject to conditions (Demirel)

-same for decisions of association council

-effect in third country depends on national constitutional rules-more stringent enforcement in monist system

-agreements with more than one third country-may have different legal effects in each country

Association Agreements: S2 Sevince

-para 9- decisions of Association Council also form an integral part of the community system
-so has jurisdiction to give PR on them

-also decisions of AC are also capable of having direct if they fulfil the 3 criteria

-para 19 look at purpose and nature

Association Agreements: Simintenkov

-creative reading of an association agreement

-its provisions also capable of giving direct effect

-also established that it gave similar free movement rights as European citizens

Association Agreements: Examples

-first was with Greece and Turkey in 1963

-many cases crucial first step to EU membership e.g. Spain and Portugal

-mostly substantive content is access to the EU market, tariff reductions and abolition of fiscal discrimination or award of MFN status

European Neighbourhood Policy: aims

-since 2004 but only recently legal basis in Art 8 TEU

"establishment of area of prosperity and good neighbourliness"

-Avoiding dividing lines with new neighbours due to enlargement

-strengthening democracy and rule of law

European Neighbourhood Policy: in practice

-MS call the shots

-operates mainly through soft-law, action plans setting out agenda of political/economic reform, short and medium term priorities 3-5 years
-action plans by AA/PCA council- committees monitor implementation

-commission publishes annual reports
-there are other neighbourhood policies

-no guarantee of becoming a MS

European Neighbourhood Policy: finance

-2007 European Neighbourhood Instrument

European Neighbourhood Policy: oversight
2009 added to portfolio of Commissioner for Enlargement

-misleading: NOT an enlargement policy, does not prejudice those applying for Membership

The Union for the Mediterranean: Barcelona Process

existing agreements were transformed into Euromed agreements, covered more ground than existing ones

periodic Euromed conferences were convened government reps discussed topical affairs
-ultimate objective-establishment of free trade area

The Union for the Mediterranean: 2008

-idea to overhaul franchise

originally concerned areas which overlapped with EU competence

-final product-modest improvement of Barcelona process

-introduction of rotating co-presidency 1 EU, 1 of med partners

The Union for the Mediterranean: in practice

-six priority projects

-UfM secretariat-entrusted with ensuring continuity

-summits every 2 years

-signs of stagnation-dogged by division from beginning

-do partners have sufficient interests in common? are they willing to work together?

Eastern Partnership

-born out of need to help countries economically and financially

-provide clarity over accession prospectives

-alleviate military and political tension

-official launch-mid 2009

-an over-arching policy framework

-four thematic platforms
-comprehensive programme improving quality of society and public governance

EU enlargement: accession process

DG for enlargement

-only negotiations atm cannot expect any enlargement in coming years

-must be ratified by all MS-EU not a party

-voluntary mixity- no legal reason but a political preference

-Article 49 TEU-bit vague-political crierion and general policy criterion "any European state"

-must respect values in Art 2 TEU

-staged process

EU enlargement: Copenhagen criteria

-must have achieved stability of institutions guaranteeing democracy, the rule of law, HR and respect/protection of minorities

-dispose of a functioning market economy

-have ability to take on obligations of membership

-adherence to aims of political, economic and monetary union
Madrid European Council 1995
-must have created conditions through adjustment of administrative structures

-Helsinki 2009 "good neighbourliness"

EU enlargement: Accession procedure

-normally granted after official candidate status

-after 2nd CC is fulfilled-Commission opinion, Council decide by unanimity on opening of accession negotiations
-MS can block this initiative

-once accession negotiations initiated-effort to ensure 3rd CC fulfilled

-commission produces annual and strategic reports on progress

-acceding country needs to take on acquis communitaire (no preliminary opt-outs permitted)

-commission expressed satisfaction in final opinion-accession agreement can be drawn up-submitted for ratification by all contracting parties

-EP must give consent by majority