What Is This Thing Called EU?

The main goal of the EU is the progressive integration of Member States’ economic and political systems and the establishment of a single market based on the free movement of goods, people, money and services.

To this end, its Member States cede part of their sovereignty under the Treaty on the Functioning of the European Union (TFEU) which empowers the EU institutions to adopt laws.  These laws (regulations, directives and decisions) take precedence over national law and are binding on national authorities. The EU also issues non-binding instruments, such as recommendations and opinions, as well as rules governing how EU institutions and programmes work, etc.

Theses decisions are EU laws relating to specific cases. They can come from the EU Council (sometimes jointly with the European Parliament) or the Commission.  They can require authorities and individuals in Member States either do something or stop doing something, and can also confer rights on them.

Regulations and Directives

Regulations are the most direct form of EU law – as soon as they are passed, they have binding legal force throughout every Member State, on a par with national laws. National governments do not have to take action themselves to implement EU regulations.  They are different from directives, which are addressed to national authorities, who must then take action to make them part of national law, and decisions, which apply in specific cases only, involving particular authorities or individuals.

Regulations are passed either jointly by the EU Council and European Parliament, and by the Commission alone.

Directives lay down certain end results that must be achieved in every Member State. National authorities have to adapt their laws to meet these goals, but are free to decide how to do so. Directives may concern one or more Member States, or all of them.

Each directive specifies the date by which the national laws must be adapted – giving national authorities the room for manoeuvre within the deadlines necessary to take account of differing national situations.  Directives are used to bring different national laws into line with each other, and are particularly common in matters affecting the operation of the single market (e.g. product safety standards).

The EU Treaties

The Treaties of the European Union are a set of international treaties between the European Union (EU) member states which sets out the EU’s constitutional basis. They establish the various EU institutions together with their remit, procedures and objectives. The EU can only act within the competences granted to it through these treaties and amendment to the treaties requires agreement and ratification of every single signatory.

The two principle treaties on which the EU is based are the Treaty on European Union (TEU; Maastricht Treaty, effective since 1993) and the Treaty on the Functioning of the European Union (TFEU; Rome Treaty, effective since 1958). These main treaties (plus their attached protocols and declarations) have been altered by amending treaties at least once a decade since they each came into force, the latest being the Treaty of Lisbon which came into force in 2009. Lisbon also made the Charter of Fundamental Rights legally binding, though that is not a treaty per se. The troubled ratification of Lisbon has meant there is little climate for further reform in the next few years beyond accession treaties, which merely allow a new state to join.

The EU Institutions

The European Union (EU) is not a federation like the United States. Nor is it simply an organisation for co-operation between governments, like the United Nations. It is, in fact, unique. The countries that make up the EU (its ‘member states’) remain independent sovereign nations but they pool their sovereignty in order to gain a strength and world influence none of them could have on their own.

Pooling sovereignty means, in practice, that the member states delegate some of their decision-making powers to shared institutions they have created, so that decisions on specific matters of joint interest can be made democratically at European level.

The EU’s decision making process in general and the co-decision process in particular involve three main institutions:

• the European Parliament (EP), which represents the EU’s citizens and is directly elected by them;
• the Council of the European Union, which represents the individual member states;
• the European Commission, which seeks to uphold the interests of the Union as a whole.

This ‘institutional triangle’ produces the policies and laws that apply throughout the EU. In principle, it is the Commission that proposes new laws, but it is the Parliament and Council that adopt them. The Commission and the member states then implement them, and the Commission ensures that the laws are properly taken on board.

Two other institutions have a vital part to play: the Court of Justice upholds the rule of European law, and the Court of Auditors checks the financing of the Union’s activities.

The powers and responsibilities of these institutions are laid down in the Treaties, which are the foundation of everything the EU does. They also lay down the rules and procedures that the EU institutions must follow. The Treaties are agreed by the presidents and/or prime ministers of all the EU countries, and ratified by their parliaments.

Welcome!

Welcome to the European Law Blog here at the University of Greenwich which is now in its 2nd year. This blog is designed to assist students in navigating through the subject of European Union Law. The blog will have links to articles (academic, newspaper etc), european case law and any other material that is of a european nature. It is hoped that this blog will point students in the right direction and enhance the experience of the course. The blog will be updated regularly (normally weekly).  The blog will follow the topics discussed during the lectures/tutorials.

Websites will appear in the ‘blogroll’ column. Special note must be made of the links to EUR-Lex and EUROPA. EUR-Lex provides direct free access to European Union Law. There you can consult the Official Journal of the European Union as well as the treaties, legislation, case-law and legislative proposals. You can also use the extensive search facilities available. EUROPA is the parent site of EUR-Lex and sets out all the documents available and will help you find the document you need. It is divided into three sections to facilitate access to legislation, activity reports, audio/visual material, internal documents and archives.  The statute in the picture is near the European Parliament.

Good Luck!!

As you would have noticed there hasn’t been any activity on the blog since the end of teaching.  There will however be survey of what you felt about the blog next week.  In the meantime good luck for the exam.

Free Movement Of Goods = Answer

Hello – Below is suggested answer to the problem question on p43 of your booklet. It is only bullet pointed and does not relate to the parties within the problem (which you would have to do!).

• Article 34 and its function – it is the principle provision in the Treaty designed to eliminate national barriers to the free movement of goods which are not fiscal in character. There has been much litigation before the ECJ on this subject.
• Article 34 – Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States. Article 35 – Quantitative restrictions on exports and all measures having equivalent effect shall be prohibited between Member States.
• Directive 70/50 – Art 2 = this directive covers measures other than those applicable equally to domestic or imported products which hinder imports which could otherwise take place including measures which make importation more difficult or costly than the domestic production. Art 3 = the directive also covers measures governing the marketing of products which deal in particular with shape, size, weight, composition, presentation, identification or putting up and which are equally applicable to domestic and imported products where the restrictive effect of such measures on the free movement of goods exceeds the effects intrinsic to trade rules.

• Definition of “quantitative restriction” – Geddo v Ente 1973 ECR 865 meaning measures which amount to a total or partial restraint of according to the circumstances imports, exports or goods in transit
• Measures Having Equivalent Effect to a Quantative Restriction – Procureur du Roi v Dassonville 1974 ECR 837 – ECJ defined MEQRs as “all trading rules enacted by MS which are capable of hindering directly or indirectly, actually or potentially, intra-community trade”.
• Directive 70/50 Art 3 refers to ‘indistinctly applicable measures’ = something on the surface does not breach Art 28/29 but may discrimatory and its actual intention is to protect the domestic market. Walter Rau v de Smedt 1983 2 CMLR 496

• Re-defining MEQR under ‘Cassis de Dijon + ‘Keck’

• Cassis de Dijon – 2 principles – it provided an impetus towards free trade. The judgement was used to strike down German legislation which had the effect of protecting the German producer from competition – such market partitioning subverts the concept of a common market. The 2^nd principle is a presumption that goods lawfully produced and marketed in one MS may be lawfully marketed in another MS. The 1^st principle states that pending harmonization, MS may legislate in areas such as the marketing of alcohol but if such national laws result in obstacles to trade, they can only be justified as satisfying a mandatory requirement i.e. public interest/health concern. See also Gilli & Andres 1981 1 CMLR 146 + Commission v Germany (Beer Purity) 1987 ECR 1227.

• Keck & Mithouard 1993 ECR I 6097 (clarification of Art 34) – parties tried to in act Art 36 as a restriction to free trade. Not contrary to EC law. In post-Keck cases then the ‘selling arrangements’ have to be looked at. See Verband Sozialer Wettbeweb v Clinique Lab (Estee Lauder) 1994 ECR I-317

• So – Cassis de Dijon – If ok in MS A then ok everywhere Keck – Selling arrangement [“modes of marketing”] are ok, provided apply to all affected traders

Amnesty International

Well this isn’t technically an EU post but here are some links to some of Amnesty International’s current campaigns. Sign up for a campaign to bring a father home from Guantanamo Bay in Terrorism, Security and the State HERE, sign up to the End Of The Death Penalty HERE and Human Rights For Burma HERE.

We also have a ‘new’ Amnesty International Student Group which held its first very successful event on Wednesday 17 March (‘Amnestea’) – congratulations!

Human Rights Watch Film Festival

Human Rights Watch Film Festival runs from March 17-26 in London.  It is  in its 14th year and will show 28 films from 20 countries across cinemas  around London – for more info see HERE.

Free Movement Of Goods

The last topic of the year is free movement of goods which has similar principles as the free movement of persons i.e. that is it a principle which must not be restricted by member states.  You can see the general framework from EUROPA – HERE.  There is also a document relating to free movement and the Lisbon Treaty HERE.  There is also a link HERE to the full chapter from Craig & De Burca’s EU Law (it is however pre-Lisbon) which concisely shows Quantitive Restrictions and its related case law.  On another subject is an interesting article by Norbert Reich in the German Law Journal entitled ‘Free Movement v Social Rights In An Enlarged Union’ which is about free movement in general and social rights with relation to the Laval case and the Viking case  – the link is HERE.

Problem = Answer

Social Rights – Problem Question (p20) Outline Answer:

Part A.

• Briefly – Worker / Worker Rights – Who is a Worker? Art. 45(3) TFEU rights = (a) (b) (c) (d)

• Concept of a Worker -should know no real definition in Art 45 or Dir 2004/38.

• Lawrie-Blum concept of ‘worker’ has led to a wide interpretation of the term Levin

• To keep status = ‘having left his job is capable of taking another’: Hoekstra or Steymann, • Equal Treatment When You Lose You Job (i.e. to keep social benefits of a worker) Unintentionally – relation to Dir 2004/38 Art 7(3) he retains this status in some circumstances a-d (i.e. involuntary unemployed) vs Voluntarily – do you keep status Ninni-Orashe, Baumbast case. Art 3(1) 1408/71 Art 4(1)

• How long do you have to work to claim benefits – Monique Chateignier, Collins, Antonissen?

• Non-discrimination aspect of TFEU e Directive 2004/38

• Charter of Fundamental Rights of EU Article 34 (Social Rights) and 35 (Heath Care) – now enacted by Lisbon

Part B.

• Right of residence / Job seeker rights. Right to remain Art 45 (3) (a) Art 6 & 7 Dir 2004/38 3mth/6mth rule job seeker. Also must connect Dir 2004/38 with MS obliged or not = social rights (3mths!). Royer e Collins cases – Commission v Belgium

• Should notice – Dir 2004/38 provides for a right of residence after 5 years. • Right of residence. Right to remain further than 6 mths discussed in – Antonissen. General discussions maybe on not burdening the MS Art 14 (1)

• Job Seekers under Reg 1408/71 states and with regard to rights to social assistance (unemployment or sickness) Dir 2004/38 Art 24 and Art 14 (4) (b). Also must connect Dir 2004/38 with MS obliged or not (3mths) = social rights

• Derivative rights – 1612/68 (families not living under same roof) – Diatta e Reed + new rules under Dir 2004/38 – what about under 21 or is she a dependent (daughter?)

• Rights for Workers’ Families Reg 1408/71 has now interpreted widely by the ECJ = social rights of worker conferred to family members Commission v Belgium Art 2, 7, 24 and 10 Dir 2004/38

• Could she claim ‘sickness benefit’ under 1408/71? For looking after father? Hervein case • Charter of Fundamental Rights of EU Article 35 (Heath Care) – now enacted by Lisbon • Could mention health care 1408/71 – Commission v Luxembourg and Heinze.