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170 Cards in this Set

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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

-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

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


-innovations:


-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

-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

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

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



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?

-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

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