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170 Cards in this Set
- Front
- Back
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Intro: What effect did the treaty of Lisbon have? |
No longer a three pillar structure |
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Intro: aims |
transparency, efficiency and democracy |
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Intro: Legal personality |
-ability to engage in transactions and contracts -held to account in Court -Internationally sign and conclude treaties -represented internationally -held accountable |
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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 |
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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? |
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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) |
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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 |
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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 |
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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 |
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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 |
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Intro: Section dealing with competence in TFEU |
-Articles 3-6 |
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Intro: principle of conferred powers |
Art 5 TEU |
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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 |
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Intro: autonomy: Van Gend en Loos |
-a new legal order within international law |
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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 |
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Intro: autonomy: Intertanko |
-unreliable behaviour -International Law of sea shielding EU from effect of the International Law |
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Intro: autonomy: Kadi |
-ambiguous -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 |
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Intro: autonomy: monist or dualist? |
-has previously been monist
-court reframing as more dualist as a consequence of autonomy |
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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
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CFSP: Article 21 TEU |
-Generally how EU seeks to act on the world stage |
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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 |
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CFSP: Article 4(3) TEU |
-principle of sincere co-operation. MS bound to support EU's external action |
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CFSP: Article 24(3) TEU |
-follow up from Article 4(3) |
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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 |
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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 -1969* European Political Co-operation-actually made headway |
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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) |
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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 |
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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 |
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CFSP: birth: Treaty of Lisbon: |
-CFSP-complete overhaul to a more coherent policy -streamlined and transparent -innovations: -transformed HR to what it is now |
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CFSP: accountability gap? |
-no court-only political assessment and review -paired with democratic deficit-deficiency due to lack of involvement by Parliament |
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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 |
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CFSP: intergovernmental |
-perhaps second pillar never disappeared -proposals by Commission -power of veto -no legislation-just decisions-executive acts -cooperate and allign position |
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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 |
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CFSP: President of European Council |
-further development rests partly on shoulders -power is limited and mostly informal -works in tandem with HR |
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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 |
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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 |
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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 |
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CFSP: European Parliament |
-side-lined -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 |
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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 |
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CFSP: European External Action Service |
-Art 27(3) TEU -diplomatic service -broader assisting body-helps out HR |
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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 |
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CFSP/CSDP: Civil Planning and Conduct Capability |
-part of EEAS -autonomous operational conduct of civilian CSDP operations |
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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 |
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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 |
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CFSP: CoJ |
-cannot act in the way of judicial checks and balances
-Art 271(1) TFEU-court generally excluded -Art 275(2) TFEU-two limited exceptions |
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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 |
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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 |
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CFSP: Decision making: decisions |
Article 31- decisions Article 31(2) QMV in 3 cases -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 |
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CFSP: Decision making: procedural issues |
Art 31(5) TEU when procedural can act by simple majority |
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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 |
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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 |
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CFSP: decision making: Article 25 TEU |
-Most general guidelines for CFSP decision making |
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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 |
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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 |
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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 |
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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 |
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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 |
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CSDP: Petersberg tasks |
-Art 43 TEU-Revised and enhanced |
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CSDP: Missions |
-Art 42(1) TEU-use means as a mission outside EU Territory: 1) peacekeeping 2) conflict prevention 3) strengthening international security |
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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 |
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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) |
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CSDP: type of missions |
-first Jan 2003- former Yugoslavia-civilian and military -more than 20 since -size and scale varied |
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CSDP: resources |
-MS responsible for providing civilian and military needs
-EDA plays pivotal role |
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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) |
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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 |
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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 |
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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 |
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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" |
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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 |
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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 |
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Treaty making: when is Parliaments consent needed |
-special legislative procedure -where 294 TFEU applies |
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Treaty making: decision making |
-Council takes decisions by QMV -unless an area where internal action also requires unanimity |
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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 |
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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) |
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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 |
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Treaty Making-contesting an agreement |
Correct action: action for annulment (art 263 TFEU) |
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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 |
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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 |
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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 |
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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 |
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Role of Court: Hautula |
-MEP wanted access to documents, CFSP, in the nature of transparency documents should not be withheld |
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Role of Court: Mauritias agreement case |
-not a new exception but recent case |
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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 |
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CCP: three main objectives |
Art 206 TFEU -contribute to harmonious development of word trade -lowering of customs tariffs and removal of other types of barriers |
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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 |
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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 |
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CCP: Commission |
-sole responsibility for making recommendations to Council -If Council gives blessing-Commission also responsible for conducting negotiations |
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CCP: 133 Committee |
-Article 207(30) -group of MS representatives -assists Commission in making recommendations to Council -Council often laid down extensive guidelines and some red lines |
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CCP: Scope: Opinion 1/75 |
-ECJ thought CCP should build gradually and it was principally exclusive competence |
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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 |
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CCP: Scope: Treaty of Amsterdam |
-Council expressly empowered to extend scope of CCP whenever necessary or desirable |
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CCP: Scope: Treaty of Nice |
-scope considerably expanded
-competence to conclude GATS and TRIPS type agreements reserved for EC |
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CCP: Scope: Lisbon |
Opinion 1/94 only temporary fallback Art 3(1) TFEU-CCP as area of exclusive competence |
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EU and IL: monist or dualist? |
-monist but signs of retreat |
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EU and IL: GATT: International Fruit Company |
-GATT provisions do not have direct effect |
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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 |
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EU and IL: WTO: Portugal and Council |
-stuck to earlier position concerning GATT |
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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 |
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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 |
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CCP: Reg 1515/2001 (in reader) |
Measures to be taken by EU post consultation with WTO
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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 |
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Trade: Community Customs Code |
-revised in 2008 to Modernised CCC -value assessment -rues of origin-clarity over what origin of good is Where application causes dispute-take to court |
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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) |
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Trade: Everything but arms |
-tariff agreement -arms excluded -banana, sugar and rice phase in |
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Trade: General Import Regulation |
Reg 3285/1995 -imports should not be subject to QR's -provides for the adoption of safeguard measures |
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Trade: exports |
-Reg 1334/2000 dual use items regulation -focuses on possible export controls -dual use refers to military and civilian |
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Trade: anti-dumping |
Reg 1225/2009 (in reader) -falls within scope of CCP -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 - |
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Trade-anti-dumping-reasons for measures |
-eliminate trade distortions -restore effective competition |
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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 |
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Trade-anti-dumping: procedure |
-number of procedural rights e.g. right to be heard
-but no real judicial scrutiny of decisions |
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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 |
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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 |
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cooperation with third countries: Bangladesh case |
-even greater reticence to supranational humanitarian competence -signalled shared competence confirmed by progressive treaty amendments |
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cooperation with third countries: Maastricht Treaty |
-development cooperation received official place in primary law |
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cooperation with third countries: Nice Treaty |
inclusion of economic, financial and technical cooperation |
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cooperation with third countries: Lisbon Treaty |
-humanitarian aid introduced |
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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 |
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Economic, financial and technical cooperation |
-art 212-213 -212(2)-ordinary legislative procedure applies -212(3) basis for adopting international agreements |
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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 |
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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 |
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cooperation with third countries: Commision |
Art 210(2) TFEU- may take measures to promote smooth cooperation |
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Development Cooperation Instrument |
-from European Investment bank |
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European Development Fund |
-from MS -mainly for Africa, Caribbean and Pacific |
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Directorate-GeneralEuropeAid Development and Cooperation
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-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 |
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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 |
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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 |
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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 |
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EEP: central objectives |
Art 191(1) TFEU |
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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 |
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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 |
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EEP: tensions with CCP: Cartagena Protocol |
-court decided mixed agreement under Art 192 TFEU (EEP)
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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 |
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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 |
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EEP: 1997 UN Conference in Kyoto |
-Eu committed MS to reduce carbon emissions by 8% by 2012 |
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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 |
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EEP: EU Climate change package |
-include aircraft emissions in trading scheme from 2012 |
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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 |
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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 |
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HR policy: Maastricht Treaty |
-Article 5(2)-respect for FR was guaranteed by ECHR and as a result of constitutional traditions common to MS |
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HR policy: Amsterdam |
-provision included in M treaty rendered justiciable |
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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 |
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HR policy: Opinion 2/94 |
-for quite some time could only enter into agreements that did not have a principle FR objective |
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HR policy: Treaty of Amsterdam |
-explicit legal basis for adopting internal measures to combat discrimination with implied competence for external action |
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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 |
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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 |
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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 |
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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 |
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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 |
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Association Agreements: outcomes |
-access to internal market under more favourable conditions
-joint shouldering of burdens -resolution of difficulties in good faith -now HR conditionality |
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Association Agreements: Demirel case
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"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 |
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Association Agreements: treaty making
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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 |
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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 |
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Association Agreements: Association Committee
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-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 |
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Association Agreements: Advisory Parliamentary body
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-MEP's or MS's MP's and MP's of third countries |
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Association Agreements: judicial body? |
-no 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 |
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Association Agreements: Legal Effect
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-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 |
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Association Agreements: S2 Sevince |
-para 9- decisions of Association Council also form an integral part of the community system -also decisions of AC are also capable of having direct if they fulfil the 3 criteria -para 19 look at purpose and nature |
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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 |
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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 |
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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 |
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European Neighbourhood Policy: in practice
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-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 -commission publishes annual reports -no guarantee of becoming a MS |
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European Neighbourhood Policy: finance
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-2007 European Neighbourhood Instrument |
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European Neighbourhood Policy: oversight
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2009 added to portfolio of Commissioner for Enlargement
-misleading: NOT an enlargement policy, does not prejudice those applying for Membership |
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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 |
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The Union for the Mediterranean: 2008
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-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 |
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The Union for the Mediterranean: in practice
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-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? |
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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 |
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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 |
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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 -Helsinki 2009 "good neighbourliness" |
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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 -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 |
