European Union Law

June 10, 2008

European Union has been called the 21st century super-power

Syllabus
June 10, 2008: Historical Background to the creation of the European Communities

June 11, 2008: The EU’s institutional architecture and its evolution

June 12, 2008: The financial and legal instruments of the EU

June 16, 2008: The position of the EU law in the legal systems of the member states and
the relationships between legal orders: the French example

June 17, 2008: Internal Market/Fundamental rights

June 18, 2008: Strasbourg: visit of the European Parliament

Historical Background to the Creation of the European Communities

How and why the EU was born?
What were the major political events and decisions which contributed to shaping its legal
and constitutional structure?

I. Genesis of the European Integration

-The historical roots of European community come out of WWII
-September 19, 1946: Winston Churchill: “We mist build a kind of United States of
Europe”saying they needed unity between the states, cannot go further on the basis of
destruction.
-States were trying to rebuild relationships between them
-Many political unions arose to do this. They met during the Hague Congress which is
remembered as the “Congress of Europe”: May 7, 1948 Led to the setting up of an
international organization which was called the Council of Europe
-Three main goals of unity was based on three main goals:
1) Human Rights—this goal was achieved by the creation of the Council of
Europe and was founded by the Treaty of London (May 5, 1949) Signed by
Belgium, Denmark, France, Ireland, Italy, Luxembourg, Netherlands, Norway,
Sweden, UK—the war was passed and they thought they needed to build relations
by protecting human rights.
Council had a Parliament, a Council of Ministers, and a Court still the main
actors of Human Rights protection. One of the best-known achievements was the
signing of the European Convention of Human Rights (November 4, 1950). The
European Court has the duty to protect the convention and condemn states that are
not following the convention
2) Economics-Rebuilding of economics. There was the creation of the
organization of The Organization for European Economic Cooperation (April 16,
 1948)—emerged from the Marshall Plan to help the European states to supervise
the distribution of funds and rebuild economy. This was transformed in 1961 and
superceded by the Organization for Economic Cooperation and Development
(OECD)—still exists today and US is part of it
3) Defense/Security- The Brussels Treaty was adopted in March 17, 1948 and
created the Western EU and signed by Belgium, France, Luxembourg,
Netherlands, and UK—purpose was conceived as a response to the Soviets move
to impose control over the countries of Western Europe. It was a cooperation
between states. The main feature was the commitment of mutual defense in case
of an armed attack in Europe. Shortly after was the signature of the North Atlantic
Treaty in April 1949—European Countries joined and merged their forces in
terms of defense

At the beginning of the 1950’s different structures existed but was based on
intergovernmental corporations. It was not at that time a question of an integrated system
as it was the case for the European Community and EU today—this was just the genesis
of the system

II. A brief overview of analysis of Integration

-There was a question of choice between the Federal Structure or Confederation and is
still being discussed today—controversy of European constitution is a good example
Theories:
1) The functionalist theory in the 1950’s: At this time there was a belief that Euro
integration would be best furthered by focusing initially on economic questions—
thought this was a matter of supernational institutions. The main idea was to
prevent war and encourage the cooperation between states. People thought that
the Euro community should stay away from politics and ideology—only
economic questions
2) The Neofunctionalist Theory of the late 1950’s: emerged as an alternative way
to build Europe. Has a common starting point with the Functionalist theory—
should be based on cooperation of the states and cooperation non-controversial
sectors. This theory considered that this process should evolve and include other
sectors like political ones. The idea that Europe should be based on economic
cooperation and political cooperation. Did not give birth to a real integrated
system, just a stage of it
3) The Neorealist Theory of the 1970’s: This theory was in the context of a
slowing down of the building of Europe. At that time the supernational, political
institution of the European Community appeared to lose influence. The interest of
individual member states started to be more and more defended by the states,
defending their own interests. This emerged as a very important trend:
Intergovernmentalism—no integration, just discussion between governments.
Tried to slow down integration. The debate clearly opposed supernationalism to
intergovernmentalism
4) From the late 1980’s, the new dichotomy is Rationalist theory versus
Constructivist Theory: Debate on the political entity of Europe—how should EU
be governed, what kind of system. Attention was given more to actors than states;
 Not only the states but the intra-national actors. No more European institutions
versus International institutions. Was question of strategy of taking into account
the actors—how they should achieve their goals. On opposite side the
Constructivist goals emphasized the bringing together of nations and the EU, No
longer the nations vs. the EU

III. The Stages of the European Integration

Three Stages:
1) The first stage: from the ECSC (European Coal and Steel Community) to the
European Communities, 1953-1992: Robert Schuman, who was a strong
supporter of integration, took up an idea originally conceived by Jean Monet and
proposed establishing a ECSC “Europe will not be made all at once, or
according to a single plan. It will be built through concrete achievements which
first create a de facto solidarity.” May 9, 1950 (actually the birth of Europe).
France and Germany should cooperate with steel and coal. The first step to
cooperate in this field, and it was very symbolic. Schuman was not just a
functionalist, but also belonged to the neofunctionalist approach thinking that
after the first stage that Europe could move on to political questions, but start with
economics. This declaration is frequently compared to the American Declaration
of Independence. Europeans think this was the first step towards a kind of Euro
constitution. Created by the adoption by the Treaty of Paris April 19, 1951:
established the first European Community. The Treaty became enforceable in
1953—it put in place a common market in coal and steel between the six founding
countries (Belgium, Germany, France, Italy, Luxembourg, and Netherlands). The
aim of the corporation was to ensure peace between states and was aimed at
recreating a balance between the losers of WWII and winners—Forget the past
and the war
Problem in 1954--there was a question of creating a Euro army and there was a
project of adapting a treaty on the European Defense Community. At the birth of
the project was a French Minister, but when the project went in front of the
French parliament it was rejected. De Gaulle was against the project so his camp
was against--why? This was a questions of sovereignty. Communist also opposed
for different reasons: the allegiance to soviet power—army was seen as a weapon
against the Soviet Union
A few months later, three countries tried to re-launch the construction of Europe.
There was a famous conference called the Messina Conference and it led to a
decision of furthering the construction and the second main treaty:
The Rome Treaty, March 25, 1957: the treaties establishing the European
Economic Community (EEC) and the European Atomic Energy Community
(EAEC) were signed in Rome. The goal was in the field of economics, intending
to create a common market in terms of economic trading/activities (main treaty
starting the Euro integration). Reinforce the stability between the states—if they
have common interest then there is no reason to fight.
After the signature of the treaty, once again France tried to claim their sovereignty
—caused another conflict. The time when De Gaulle said that when there was a
question of institutional reform, they need to take into consideration each states
role…this led to a political crisis and the French president adopted the policy of
the empty chair, so since France was not there, no rules could be passed—it meant
a victory of intergovernmentalism—states more important than the construction
of a community.
Integration process was slow because of all of this. Nevertheless, Europe
experienced an enlargement with other countries wanting to join.
1973: UK, Ireland, and Denmark
1986: Spain and Portugal
With the new countries the integration progressed and at that time different
treaties were adopted to complete the system of governments. There was a revival
of Euro integration. There was a new act: Single European Act, 1986—kind of a
treaty, adopted to take into account the new countries and modernize the
institutions of Europe.

2) The Second Stage: From the European Communities to the European Union
1992: February 7, 1992: treaty on European Union or Maastricht Treaty—created
European citizenship. The Treaty creates the EU and brings about a major
institutional change in establishing a “three-pillar” structure=was based on the
image of a Greek temple. Established a new structure for Europe.
First pillar is based on the first treaties (Rome Treaty 1957, Economic Treaties in
1957, and ECSC)—at this level the decision making process is based on
Integration—the one adopted at the European Institution.
The second pillar is called Common Foreign and Security Policy—a new field of
questions for Europe. Based on Intergovernmentalism.
The third is called Justice and Home affairs. Also based on intergovernmental
discussions
France once again was not fully on board for integration—they only adopted
50.1% of the treaty—still wanted their sovereignty
Treaty was revised 3 times: 1996 with the adoption of the Amsterdam Treaty:
added a few aspects to the third and second pillar and furthered integration. The
adoption of the Nice Treaty in December 2000—very conflicted in France
because this treaty wanted to reorganize the institutions, taking into account that
in 2004, 10 more countries would be added. They wanted to change the
institutions before the addition of 10 new countires. There was also a big debate
on the rules of voting. Nice Treaty is also famous because at that time the Charter
of Fundamental Rights of the EU was created…it was the birth of the Charter,
until this time there was no charter

3) The Third Stage: The European Constitution and the Lisbon Treaty 2004: In
2000, the countries wanted to have one big text instead of many treaties, in Nice it
was decided that there be a convention that would be mandated to write the
constitution for Europe. October 29, 2004: The Treaty establishing a Constitution
is signed in Rome but it does not enter into force. Giscard d’Estaing (1974-1981:
President of France) was very pro-Europe and the construction. He was appointed
as president of the convention that drafted the constitution. It was impt because it
was not only composed of reps from the member states, but also those of future
 members and Turkey. It was a big democratic convention with reps from the
states. The convention established the constitution which was slightly amended
and the final text was signed in October 2004—it was a Rome treaty because it
was signed in Rome. In the Constitution was included all the rules from former
treaties—in order to be enforced all member countries had to ratify and France
said NO. Because of the French the Constitution did not enter into force, it was a
sad day and a slow down to integration. Why France said NO?  its an internal
political question, the people said no to the president of France and to the treaty—
Later the Dutch said No as well. France also said no because in part 3 of the
constitution (out of 4) which concerned the provisions of European policies,
France said it was too liberal—thought it did not help the people enough. In
France, Constitution is only for States, and this was a problem for them as well.
After the failure, the political actors still did not want to stop the integration, they
wanted to go further, this was broken in 2007:
The Lisbon Treaty, December 13, 2007-a complex game of strategies between
political actors. This treaty excludes the provisions on economic policies—same
disposition as in the constitution but only on the institutions and the charter of
rights (mini-Treaty)—all member countries are to ratify the treaties.
One main point of treaty: the EU replaces the European Community and means
that all the three pillars are brought together—new aspect of the treaty. When it is
ratified there will be two in existence: The Treaty on the Functioning of the EU
and the Lisbon Treaty

June 11, 2008

Part II:
How function the European Union institutions today?
What are the major changes enclosed in the Lisbon Treaty to be entered into force in
2009?

I. The Political Institutions and their interactions

What are they? What are the functions?
European Parliament, Council of the European Union (originally Council
of Ministers), Commission, European Council
How goes the decision-making process? In terms of democracy, of efficiency?

A. The 4 Political Institutions

-EU is characterized by a particular institutional set-up based on a
“decision-making triangle”  Commissions (only one that can introduce
new legislation) Parliament Council of EU
1) The European Council (apart from the decision triangle)
-Not established by the treaties; Born from the practice (starting in
1974) of holding summit meetings
-It gathered the Heads of State or Government of the Member
States
-Main function: A political body providing impetus and guidance
 for the European policies
-Not recognized till 1986
-Presidency is assumed by the head of government in charge of the
presidency of the Council of the EU—lasts 6 months and changes
every 6 months
2) The Council of the European Union
-Represents member states within the EU
-Consists of the representatives-at ministerial level- of the Member
States. The composition of the Council varies according to the
agenda for each meeting (If discussing agriculture, then the
ministers of agriculture will make up the Council)
-The Presidency of the Council of the EU follows a rotation. It is
held in turn by each Member State for 6 months—still depends on
the topic being discussed
-A few changes since the last enlargement, since 2007,
there is an 18 month program (three
presidencies/countries), those three countries have to
determine the program for the next three terms (18 months)
This has no influence on the presidency itself
-Has legislative power in the domain of Community Policies; a
budgetary power
-A power of decision and in practical terms it means that it
has legislative powers. It’s the Council that votes and
adopts the text with the Parliament (they vote jointly)
Notion can be adopted w/o the consent of the Council of
the EU
-They also have budgetary power: this means that the
Council shares the budgetary power with the Parliament.
-The council also participates to the conclusion of
international agreements because it also participates in
foreign relations so they have to discuss agreements
-Cannot introduce new legislation, can only make changes
(neither can the European Council)
-This system is unusual to any classical institution
-Preparations for work of the Council are carried out by the
Permanent Representatives Committee (Corepar)
-Considered an executive body, but can transfer some of the
decisions to the Commission—but Council still has the main
power of enforcement
-Voting Procedures: qualified majority has now become the most
commonly used voting procedure
-The calculation of a majority based on the votes allocated
to each Member State according to a system of weighted
votes that has changed with each successive enlargement of
the Communities and the EU
-A minimum of 255 votes our of 345 (73.9%) is required to
 reach a qualified majority. In addition:
-A majority of member states (in some cases two
thirds) must approve the decision, (so that smaller
countries are not taken advantage of) and
-Any member state may ask for confirmation that
the votes, cast in favor, represent at least 62% of the
EU’s total population (not mandatory, has to be
asked for) (these rules established in Nice Treaty in
2000)
-The establishment of the number of voices for each
state was a big issue and a question of conflict
because some wanted more voice (this is why they
have decided issues above
3) The Commission
-Represents the interests of the European Communities
independently of those of the member states
-From November 1, 2004, the Commission is composed of one
member per Member State
-Has the right to propose legislation; is the driving force and the
guardian of the treaties; it applies the Union Law; is the executive
body, and it represents the Communities and negotiates agreements
in the field of external relations.
-Only institution that can propose and draft text, then send
to Parliament
-The commission applies the Union Law and also means
that they are in charge of the sanction being addressed, for
example, to the companies—this is why it is called the
guardian of the treaties
-The Commission has to apply and execute some of the
decisions being taken by the Council of the EU (transferred
to Commission)
-Powers in terms of negotiations and in terms of signatures
of international conventions and treaties
-Current President is Portugese: Jose Manuel Durao Barroso,
elected by the European Council consensus, but it has to be ratified
by the Parliament. President has to appoint the commissioners to a
special topic (commissioners were chosen by their states)--
changes every 5 years, they are considered the main representative
of foreign relations
4) The Parliament
-Represents the peoples of the States which together from the
European Community “voice of the people”
-Its members are elected by direct universal suffrage since 1979.
New rule: 736 members of Parliament (starting in 2009)Right
now there are more than this amount, but it is because there were
new states added, will change in 2009; mandate-term is 5 years
 (how long they are in Parliament)
-Determined by the population of the states (78 for France)
-Can be reelected after 5 years
-President is appointed for 2 and a half-years (this is half of the
mandate)
-Appointed by the members of the parliamentbased on a
consensus, but it rotates between democratic and
conservative even if majority vote is different
-Current President is: Hans-Gert Pottering (German
President)
-Has the power to
1) Legislate, jointly with the Council of the EU,
2) The power of the purse (budgetary-jointly shared with
Council of EU);
3) The power to monitor the executiveapproves President
of Commission and can vote censure against the
Commission (this has never been done).
-Parliament can address written or oral questions to
the Commission or the Council of the EU—a way
to have pressure (political control) on the groups, no
binding effects
B. The Relationships between the Institutions
-It is sometimes said that the framers of the Treaty opted for a confederal
rather than federal decisional structure. Do you agree with this
proposition? What role do the Council of Ministers (Council of EU) play?
-A Central Legislative Function
-Despite this choice, the Treaty seeks to attenuate some of the
consequences of a central confederal legislative organ. This it does by the
functions assigned to other institutions. Which one in particular?
-The Commission
-What about the voting and decision making rules it imposes on the
Council? qualified majority
-In the Community there is no separation of powers between government
coalition and opposition as it exists at the national level. Nor is there a
confident relationship between the Council and the Parliament. Can you
identify any checks and balances?
-Commission answers to Parliament, and censure
-Sharing of legislative power btw Parliament and Council of EU
-Commission’s legislation goes to Council of EU and Parliament,
if they agree then it is adopted or they can introduce amendments.
If Parliament and Council of EU do not agree then a committee
meets to find a way for them to agree on points, if no agreement
then text is not adopted—both have to consent
-Are these mechanisms sufficient from the perspectives of democratic
control?
-What do you think of the independence of the Commissioners?
 -What are the main changes introduced by the Lisbon Treaty? Do they
improve the functioning of the EU system?
1) President of the Council will be appointed for 2 ½ years
2) Creation of a new institution: The High Representative of
Foreign Affairs and Security Policies (similar to a minister)
3) Concerning the number of Commissioners, there should be less
than one commissioner per state (18 total)—there will be a rotation
of states because some will not be represented
4) Powers of Parliament: more democratic, general procedure for
the common procedure
5) Treaty takes into account the National Parliament more than
before NP would be informed of the propositions discussed at
the level of the EU. NP have the right to speak, doesn’t necessarily
mean they will be heard tho
6) The number of Parliaments should not exceed 750
7) For voting majority it has changed to double majority (65% of
the population and 55% is required)

June 12, 2008

B. The Advisory and Financial Bodies
1) The economic and social Committee (ECOSOC)
-Composed of 344 members, and members are nominated by national
governments and then appointed by the Council of the European Union
-All belong to Social Groups like: Employees, Workers, and other types of
Social Groups
-Function: to give advice about economic and social intersts but there
advice is not binding—similar to lobbyists in America
-This group is recognized by Mistrich treaty, not created in the beginning
2) The Committee of the Regions (CoR)
-344 members, representatives of the national regions—have to have and
electoral mandate at the level of their national state
-For representation of regional interest
-Created by Mistrich treaty under German influence
-Same function as ECOSOC—gives advice and point of view on
legislation, not binding
3) The European Investment Bank
-In Luxembourg
-Provides investments to help some main projects aimed at promoting
regional development inside the EU
4) The European Central Bank
-Central Bank for the Euro
-Established in 1998 and the bank is gathering the national banks but they
are only the banks that are part of the Euro system (only 50)
-Maintains Euro purchasing power and price stability
-The President is currently French and elected in 2003
Part 3: The EU’s Financial and Legal Instruments
2008 EU Budget: 129.1 billion Euros
Compared to France: 380 billion Euros (2007) and USA: 2.8trillion (2007) or 1.80 trillion
Euros
I. EU’s Finances
A. Revenue
-Is equivalent to expenditure
-Has four sources:
1) Agricultural duties-less used today
2) Custom duties—to encourage the freedom of movement-less used today
3) Value-added Tax (VAT) based resource—taken out of the national
states’ resources-becoming more impt
4) Gross-National-Income (GNI) based resource-becoming more impt

-Germany gives 19.67% of the EU budget

-France is the second with 16.95%
-Then Italy and the UK

B. The Expenditure
-Divided into different sectors:
1) Aimed at Sustainable Growth—concerns competitiveness and
knowledge-based economy (44.9% of the budget)
2) Natural Resources (31.6%)—Market-oriented agriculture and high-
quality food products
3) Rural Development (11%)-fisheries and the environment
4) A Global Player—sustainable development, peace and security around
the world
5) Citizenship, Freedom, Security, and Justice—Health, Consumer rights,
and public dialogue, safety and security in Europe
6) Administrative—staff, buildings, etc (6%)

States Receiving money from European Union: first is France, then Spain, the Germany
-Since France receives the most, they also give the most
-New member states are still net recipients of the funding of the EU

II. The Legal Instruments

A. The sources of the EU Law
1) Primary Law-Also known as the primary or original source of law, can
be seen as the supreme source of law in the EU and the European
Community. It is the apex of the European legal order. It consists mainly
of the founding treaties of the Communities and the Unions.
2) Secondary law
-It comprises unilateral acts and agreements
a. Unilateral Acts can be divided into two categories:
1. those listed in Article 249 of the Treaty establishing the
 European Community: regulations, directives, decisions,
opinions, and recommendations
2. Those not listed in Article 249 of the Treaty establishing
the European Community, i.e., “atypical” acts such as
communications and recommendations, and white and
green papers—not mentioned in the treaties
b. Agreements comprise:
1. International agreements signed by the Community or
the EU and a country or outside organization;
2. Agreements btw Member States, and
3. Inter-institutional agreements, i.e., agreements btw the
institutions of the EU
NOTE: Primary law comes from treaties
Secondary comes from the institutions and then enacted by treaties???
3) Supplementary Law
-Besides the case law of the Court of Justice, supplementary law includes
international law and general principles of law. It has enabled the Court to
bridge the gaps left by primary and/or secondary law
-International law is a source of inspiration for the Court of Justice when
developing its case law. The Court cites written law, custom and usage.
For example, in order to validate the external agreements concluded b the
European Community, the Court relied on the rules of international law
relating to treaty-making power (the international capacity to enter into
agreements with non-member countries and organizations) arising from
international legal personality.
-General principles of law are unwritten sources of law developed by the
case law of the Court of Justice. They have allowed the court to implement
rules in different domains of which the treaties make no mention,
concerning the non-contractual liability of the European Community, for
example.

Types of Requests to make to the Court:

1) Requests for preliminary rulings-question of interpretation to make a uniform
interpretation
2) Action for failure to fulfill obligations—usually the European commission requests to
the court to see if a state has violated a European law
3) Actions for annulment—one of the institutions has adopted a regulation and is in
violation of law—goes to the court of first instance (first level of request)
4) Action for failure to act-courts can say to the institutions that they should have acted a
specific way and have not done their job (violation of law)—goes to court of first
instance (first level of request)
5) Appeals—classic type of request, appeal against a decision adopted by the court of
first instance
6) When some civil servants of the EU do not do their job, they can be fined, this is a
request against an action of a civil servant
A. The Legal Effects of the EU Law
 1) The direct effect
Judgment of the Court, Van Gend & Loos, Case 26-62 (February 5, 1963)
 The Van Gend & Loos judgment is one of the most important
judgments in the development of the Community legal order. The European Court
of Justice specifies that the Community constitutes a new legal order of
international law for the benefit of which the States have limited their sovereign
rights and the subjects of which comprise not only Member States but also their
nationals. The Court concludes from this a fundamental principle: that of the
direct effect of Community Law.
Direct Effect Criteria:
1) Provision must be sufficiently clear and precisely stated
2) Provision must be unconditional
3) Provision must confer a specific right for the citizen to base his claim
on
 If these three criteria are satisfied, then National Courts have the duty
to enforce the right in question. They cannot say that a state’s law is
sovereign—this was saying that national courts are obliged to apply and
protect the rights of the citizens on the basis of EU law. EU law has a
direct effect—impt in terms of relationships between legal systems, first
step of European courts to regulating EU law
Direct Effect is applied to Primary and Secondary law
2) The Supremacy
Judgment of the Court of Justice, Costa v. ENEL, Case 6/64 (July 15, 1964)
Fundamental judgment of the Court in respect of principles, the Costa v.
ENEL judgment shows that the EEC Treaty has created its own legal system
which has become and integral part of the legal systems of the member states, and
that Community law takes precedence over national law
Where there is conflict btw EU rules and national rules, the EU laws
should apply (French courts do not agree with this)

June 16, 2008

Part 4: The Position of the EU law in the Legal Systems of the Member States
The relationship between legal orders: The French Example
The European Unity is an autonomous legal community—they transferred their sovereign
rights to the European level, and they have submitted to the legal order
National judges had the duty to apply the European law.
Position of the national courts very often diverges from the point of view of the European
court of justice—supremacy of EU law and the direct effect of EU law

I. EU Law reception through the French Legislation

-Article 55: International treaties prevail over Acts of Parliament
-Article 54: If international treaties contain a clause contrary to the Constitution, the
Constitution shall be amended so that the treaty may be ratified
The French Constitution was amended in 1992 (Mastricht), 1999 (Amsterdam),
2005 (European Constitution) , February 4, 2008 (Lisbon Treaty)
 The Constitutional Council/Judge had in the past to review all the European
treaties that were discussed and has a conclusion, the French Constitution was
amended several times
-Specific provisions concerning UE= Title XV

II. EU Law reception in the case-law of high national Courts

Two Questions:
A. The primacy of EU law over National statutes and regulations?
Pay attention to the way the judicial system works in France—three main high
courts= 1) Administrative Order—Disputes between citizens and state--Council
d’Etat is the Judge; 2) Ordinary System/Judicial Order-- Cour de Cassation—
disputes between citizens; 3) Constitutional Council-court specializing in the
question of judicial review—check that statutes conform to the constitution
1) March 1, 1968=Famous Case law: Semoules. Conseil d’Etat
An administrative court cannot accord treaties precedence over subsequent
legislation which conflicts with them and this applies to Community rules
just as much as to ordinary international conventions. French judge will
apply the French statute instead of European law (position in 60’s and
70’s)
2) January 15, 1975: Constitutional Council=decision on abortion
The Constitutional council ruled that it was not entitled to review the
conformity of French legislation to international conventions. It was the
duty of ordinary courts. They had to ensure that international treaties were
applied. Statute must conform to constitution, not taking into account the
international treaties
3) May 24, 1975: Cour de Cassation= Café Jacques Vabre case.
Instead when a conflict existed between an “internal law” and a properly
ratified “international act” which had thus entered the internal legal order,
the Constitution itself accorded priority to the latter. Respect for the
principle of the primacy of international treaties should not be left to the
Conseil constitutional to secure, since it was the duty of the ordinary
courts before which such problems actually arose to do justice in the case.
4) October 20, 1989, Conseil d’Etat, Nicolo
The court accepted the apply the treaty and not the French statute even tho
the statute was more recent and adopted after the treaty
5) After this, the Couseil d’Etat also recognized the primacy of both
Community regulations and directives over French statutes:
CE, September 24, 190 Boisdet: on a regulation adopted after the
French law
CE, February 28, 1992 Rothmans and Philip Morris: on a directive
adopted before the French law

B. The primacy of EU law over the French Constitution itself?

The position of the French court is easy to get: They all have the same
position=the French Constitution is the supreme norm
1) CE, October 30, 1998, Sarran, Levacher et al.
 The Supremacy conferred by article 55 of the Cion to international
conventions does not apply, in internal law, to dispositions of a
constitutional nature. The Constitution is the supreme norm within the
national legal system
2) CCass: it gave a similar ruling in Fraisse case, on June 2, 2000
3) CC, November 19, 2004
Point 10= “The title of said treaty has no effect upon the existence
of the French Constitution and the place of the latter of the summit of the
domestic legal order.”

III. The New Challenges

=Judicial review of statutes or regulations which are transposing European directives
Two types of French Legal Acts: 1) Transposing thru the adoption of the statutes or
2) Government has to adopt regulations
A. The Constitutional Council case-law
1) June 10, 2004: first step
Article 88-1 of the Constitution provides: “The Republic shall participate
in the European Communities and the EU constituted by States which
have freely chosen, under the Treaties that established them, to exercise
some of their powers in common.” The transposition of a Community
Directive into domestic law thus complies with a constitutional
requirement. Transposition of directives by statute is a constitutional
requirement and therefore every time the French parliament adopted a
statute, it should be considered constitutional
Constitutional Council completed its position in 2006
2) Second Step: July 27, 2006
The Constitutional Council is under a duty to comply with this
requirement; the review it carries out to this end is however subject to a
twofold limitation:
a. Firstly, the transposition of a Directive cannot run counter to a
rule or principle inherent to the constitutional identity of France
(principles that come from the history of the Republic), except
when the constituting power consents thereto;
b. Secondly, it can only find a statutory provision unconstitutional
under Article 88-1 of the Constitution if this provision is obviously
incompatible with the Directive, which it is intending to
transpose.
B. The Counseil d’Etat case-law
CE February 8, 2007 Arcelor: when the Constitution has a provision on the topic
which is different from that of EU law, then apply French and if there is an
answer to it then apply EU law

June 17, 2008

Part 5: Selected Issues on free movement of goods and on fundamental rights

How the EU evolved from an economic union towards a political union?
What role has the ECJ played?

The ECJ was the main actor in the evolution

I. The Single Market

-The cornerstones of the single market are ofter said to be the “four freedoms”: the free
movement of people, the free movement of goods, the free movement of services, and the
free movement of capital
-These freedoms are enshrined in the EC Treaty and form the basis of the single market
framework. The single market is also enabled by additional laws (‘Directives’-adopted
after the treaties) that bring down further barriers in specific areas and are implemented at
national level by Member States themselves.

A. A brief overview of the establishment of a single market

1957: These six countries sign the Treaty of Rome creating the European
Economic Community with its “common market” (pay attention to the
wording, because they change with time)
1968: Treaty of Rome also established a goal to eliminate all the quotas
and tariffs (duties on imported goods) that would be obstacles to the free
movement of goods, but such a goal should be achieved over a period of
11 years—written into the treaty: means that inside the common market,
there could not be any tariffs created by the states, it had to be decided by
the European community
1986-1992: EU adopts nearly 280 separate items of legislation prising
open hitherto-closed national markets to complete the single market. In
many areas, 12 sets of national regulations (there were only 12 members
then) were replaced by one common European rule.
1993: The single market becomes a reality. Introduced thru the Mastricht
Treaty, replaced the term “Common Market” for “Single Market”

B. The Example of the Free Movement of Goods

1) A customs union: prohibition of customs duties
Articles 23-37 of the EC treaty lays the foundations for a customs union
by providing for the elimination of customs duties between Member States
and by establishing a Common Customs Tariff.
But if matters rested there, free movement would be only imperfectly
attained. It would still be open to States to place quotas on the amount of
goods that could be imported and to restrict the flow of goods by measures
which have an equivalent effect to quotas.
2) Prohibition of quantitative restrictions between member states: such as
quotas imposed by the member states
The object of Article 28-31 is to prevent Member States from engaging in
these strategies “Quantitative restrictions on imports and exports-and
all measures having equivalent effect-shall be prohibited between
Member States.”
 Underlined portion: The meaning of this expression was not clear at that
time What does it mean?: “all measures having equivalent effect to a
quantitative restriction” (MEQR)
The court have given a broad interpretation to such a phrase
Usually these MEQR were used towards imports. A MEQR was
a discriminatory or protectionist measure.
 ECJ, February 20, 1979, Cassis de Dijon case:
In this case a German regulation fixed a minimum alcohol conternt
of 25% for the marketing of fruit liquors. Therefore the French
Cassis de Dijon (with 20% of alcohol) could not be imported and
sold in Germany.
*The court held that Article 28 can apply even when
there is no discrimination between domestic goods and
imports
*The court spelled out the general principle called the
principle of “mutual recognition,” which is now the most
famous part of the ruling: “There is therefore no valid
reason why, provided that they have been lawfully
produced and marketed in one of the Member States,
alcoholic beverages should not be introduced into any
other Member State.” The principle of mutual recognition
was an alternative means for ensuring the free flow of
goods even in the absence of legislation which harmonized
the relevant rules. Page 61.8
3) The authorized restrictions to free movement of goods
Member states may restrict the free movement of goods only in
exceptional cases mentioned in Article 30
 The provisions of Article 28 and 19 shall not preclude prohibitions or
restrictions on imports, exports, or goods in transit justified on grounds of:
1) Public morality
2) Public policy or public security
3) The protection of health and live of humans, animals or plants
4) The protection of national treasures possessing artistic, historic,
or archeological valued
5) The protection of industrial and commercial property
Examples on page 64 of packet—means have to be
proportionate

II. The EU and Fundamental Rights

-When the original three European Community Treaties were signed in the 1950a, they
contained no provisions concerning the protection of human rights in the conduct of
Community affairs. EC was based on economics not on the human being.
-But since 1957, the position has changed, even though the legacy of economic aims still
remains significant. There is currently a lively debate on the significance of human rights
for the EU and the appropriate scope of an EU Human rights policy.
A. The evolution of the relationships between the EU and fundamental rights
 1) The role of the ECJ
The ECJ played here again a very important role
 November 12, 1969, Stauder: The ECJ ruled that fundamental
human rights form an integral part of the general principles of
Community law and are protected by the Court (page 66, point 7)
May 14, 1974, Nold: In safeguarding these rights, the Court is
bound to take into account the constitutional traditions common to
the member states and also international treaties for the protection
of human rights of which member states are signatories. (page 69,
point 13)
2) The introduction of fundamental rights in the treaties
Article F of the Treaty on EU (1992)—first time fundamental
rights became a goal of the Union
Then changes were introduced by the Amsterdam Treaty EU
(Article 6- protection of human rights was developed saying there
would be no violation allowed)
Following the Amsterdam treaty, respect for these fundamental
principles was also made a condition of application for
membership of the EU (procedure to check that state does respect
and protect fundamental rights)
Adoption in 2000 of the Charter of Fundamental Rights for the
EU (This charter is very similar to the European Convention on
Human Rights)
B. Challenges
Today there is a certain degree of skepticism about the ECJ’s ability to enforce a
satisfactory system of human rights protection for the EU…
1) Market Rights vs. Human Rights
The court has been criticized for manipulating the rhetorical force of the
language of rights, while in reality advancing the commercial goals of the
common market. “Market Rights” are prevailing over other values
fundamental to the human condition
People are considered as part of the economic goal and aim, not as
humans. They have a very liberal view of rights, there is no real protection
of social rights
2) The accession of the EU to the European Convention on Human
Rights?
 In 1996: The ECJ ruled that the Community lacked competence
under the Treaties to accede to the Convention
Of course, there are links between the EU system and the ECHR
system:
*Thru the texts: Article 52.3 of the EU charter:
“In so far as this Charter contains rights which correspond to rights
guaranteed by the Convention for the Protection of Human Rights
and Fundamental Freedoms, the meaning and scope of those rights
shall be the same as those laid down by the said Convention. This
provision shall not prevent Union law providing more extensive
 protection/”
*Thru the Judges: despite some kind of a competition
between the Strasbourg and Luxembourg Courts, we shall
admit that they are trying to establish a dialogue
ECJ, January 2, 2004: The European Court of Justice refers to a
ruling of the ECHR concerning the rights of transsexuals
(Goodwin casepage 74, point 33)

The Lisbon Treaty introduced some major changes:

1) It recognized the legal value of the Charter of Fundamental Rights of the EU of
December 7, 2000
2) It recognized the accession of the EU to the European Convention HR. (“Such
accession shall not affect the Union’s competences as defined in the Treaties.”)