law of the european union: outline - NYU School of Law

Law of the European Union: Outline
Professor Weiler
Fall 2003 Unit I: European Community System
. Historical Perspective and the Basics of Integration
o Foundational Myths
. the EC is, above all, a long term strategy for securing peace in
Europe
< the founders set out to avoid the mistakes and failures of
Versailles
< they believed that the EC should be conceived of as a long term
contract with the necessary flexibility to allow for changing
circumstances and ever increasing cooperation
< increased solidarity and cooperation will make war (between
France and Germany) and "unthinkable" and, therefore,
"materially impossible"
. NOTE: "unthinkable" represents the reality; while war will
never be truly materially impossible, there will be no war
between States that no longer conceive of each other as
enemies
. economic myth: the common market (now the single market)
< promote the well-being of the people of Europe (TCE)
< prosperity, rise in the standard of living, closer relationship
btw States -> all aim at forming "an ever closer union"
< stages of economic intergration (Ballasa theorem)
. nondiscrimination principles
. most favored nation (MFN)
. national treatment (NT)
. ad hoc trade liberalization
. free trade area
. customs union
. common market
. economic and monetary union
. externally impose strict monetary policy on domestic
systems
. the political myth: community citizenship
< positive law
< what does it mean to be a European citizen? how does Europe
understand itself?
. The Political Institutions
o The Commission
. Nomination and Appointment
< Nomination of the President of the Commission: common accord of
the Member States; must be approved by the European Parliament
< Nomination of Commissioners: common accord with nominee for
President
< Parliamentary approval: all nominees must be approved in a
single vote by Parliament
< Appointment of the Commission: by common accord of the Member
States
< NOTE: President is a huge issue in the new constitution
. Composition of the College of Ministers: 20 members - 2 from each
of the five larger States, 1 from each of the smaller States
. Term: 5 years with the possibility of one renewal
. Qualities of Commissioners
< independent: cannot take instructions from any government or
other body; cannot take action incompatible with duties; cannot
engage in other occupations; must act with integrity and
discretion (inc. not accepting certain appointments or benefits
after leaving office)
< dismissal: failure to fulfill conditions above or serious
misconduct
. Portfolios: allocated by President, but must balance national
interests and consider general competence and reputation of
nominees
< sliced thinner and thinner as EU grows
< NOTE: another huge issue for the Constitution
. Cabinet: each Commissioner is assisted by a cabinet whom she
appoints
< restrictions: maximum of six advisors per Commissioner headed by
the chef de cabinet; represent at least three nationalities;
either chef de cabinet or her assistant must be of a different
nationality than the commissioner
. Directorates-General (DGs) or Services (Commission divided into 36)
< qualification: entry exam or secondment of national
administrations
. Decisions: simple majority, but bound by the principle of collegial
responsibility
< "clearly defined measures of management and administration" may
be delegated to individual Commissioners
< decision to issue reasoned opinion and to commence enforcement
against Member States cannot be delegated (some other decisions
as well)
. Procedure
< Rules of Procedure may be adopted by commission, which must also
adhere to general principles of administrative fairness and
consistency
< inalterability of administrative measures
. translation cannot be left to individual Commissioners
. versions cannot be authenticated before text is ready for
notification / publication
< collegial responsibility
. in order to insure that decisions were actually taken by the
Commission and correspond exactly to its intention, the
entire Commission must be involved in drafting and
finalization
. Mediation and Conciliation: independence from national governments
allows Commission to give 'European perspective' and help mediate
conflicting interests, esp. in the Council
. Powers and Tasks
< Formulation of Policy
. proposals for action
. small initiatives: draft legislation for adoption by
Council
o in most areas the Commission has the exclusive right to
propose legislation;
o thus, nearly all Council law-making power begins with
such a proposal;
o Commission has broad discretion in the proposals it puts
forward;
o Parliament and the Council can often request that the
Commission propose certain legislation, but they cannot
force the Commission to do so;
o why is this such a huge power?
. first draft always has great influence over the
outcome; it is the starting point against which all
changes are measured
. they set the agenda
. large initiatives: proposals for EU action within broad
field
. allocation of resources: Commission drafts the budget
. policy decisions granted by Treaties
. free movement of persons: joint right of initiative re.
secondary measures with Council
. legislative and regulatory powers may be delegated to
Commission by Council
o NOTE: how does Constitution change the role of the
Commission re. delegated powers
. ECJ has held that where Commission is granted specific
tasks (eg. encouraging cooperation and facilitating
coordination btw Member States in social policy - such as
emp, labor rela'ns, work cond, training, and social
security) it has power of decision necessary to carry out
these tasks
< Executive and Administrative Function
. policy implementation
. NOTE: EU has relatively small bureaucracy, thus it must
rely of MSs for implementation of policy objectives;
. in major policy areas Commission makes rules to which
national administrators must adhere, and ensures
compliance;
. thus, the administrations of the individual MSs' are also
the administration of the EU;
. rule making power usually delegated by Council; rules often
made in conjunction with committees of national reps.
. budget - responsible for collection and expenditure
. reports - obliged to issue number of reports inc General
Annual Report
. intervene in every case before the ECJ
. the Commission is an autonomous political body - so why is it so
important for each member to have a commissioner? and why do MSs
fight so fiercely for the portfolios given their commissioner?
< question of legitimacy - inform Commission of the values of
particular epistemic community; Commissioner from a MS will
understand and consider the MS's position
< shrinking the number of Commissioners will change the paradigm
of legitimation - major divisions are no longer along MS lines,
but along left / right, male / female, urban / rural
. it's not at all clear whether the EU is really at this point;
will the new MSs in 2004, who are widely considered more
nationalistic
. the social engineer will argue that the structural change
must proceed the social reality, but, two critiques:
. this isn't always true (see Canada);
. this is true, but we don't want such a social reality
(don't want to be a US, Australia, etc.) - of what kind of
union do we want to a member?
o Council
. General
< Presidency
. rotates on a six month basis
. controls agenda for Council meetings
. this power has been used to some extent to usurp the
Council's policy-making and mediation functions
. MSs usually have an interest in achieving tangible results
during their presidency (e.g. Italy - Berlusconi - wants to
complete the Constitution so that it can be signed in Rome)
< Transparency
. least transparent: secret deliberations, no full record of
business is published, no permanent political presence,
information channels have not be