Institutional Framework of the European Union

Q1

Introduction

The institutional framework of EU aims to promote and defend the values, objectives and interests of the Union, citizens and the member states. This framework ensures effectiveness, coherence and continuity of the EU policies and actions. The objective and aim of the coding the institutional framework of the Union are covered under to Article 13 (1) of Treaty on European Union (TEU).

According to Article 13 of TEU, the institutional framework of the EU has 7 institutions: European Parliament; European Council; Council of the European Union; European Commission; Court of Justice; European Central Bank; and Court of Auditors.

Considering the single institutional framework, the essay will analyse the impact of the framework on the sovereignty of member states. To do so, this essay will provide a brief history of the formation of the European communities, the Union and the institutional framework. It will then explore how the working of the framework impacts the member states’ sovereignty in regard to the objectives and purposes for which the framework was established.

A brief history

The Council of Europe. The European cooperation organisations started with five signatories - Belgium, France, the Netherlands, Luxembourg and the United Kingdom - signing the Brussels 17 March 1948 Treaty for collaboration in economic, social and cultural matters and for collective self-defence. On 5 May 1949, the Council of Europe was founded by the five signatories.

The European Coal and Steel Community (ECSC). The 9 May 1950 Paris declaration set to motion with the proposal by Robert Schuman, French Foreign Minister the beginning of the history of the European Communities. Then came the Treaty establishing the ECSC signed in Paris on 18 April 1951. This Treaty integrated the economic sectors of the coal and steel industry.

EEC and EAEC. After ECSC, it was the Treaty establishing the European Economic Community (EEC) and the Treaty establishing the European Atomic Energy Community (EAEC or Euratom).

ECSC, EEC and EAEC into one. The 1 July 1967 Treaty establishing a Single Council and a Single Commission of the European Communities merged these executive bodies.

EPC. The European Single Act, which entered into force on 1 July 1987, institutionalised European political cooperation (EPC). This treaty reformed the constituent treaties and consolidated amendments to treaties that established the European Communities and the provisions on EPC.

TEU (EU Treaty). TEU was signed in Maastricht on 7 February 1992 and came into force on 1 November 1993. Two intergovernmental bodies were added within a single institutional framework called the common foreign and security policy (CFSP), superseding EPC.

The EEC became the European Community (EC). The Member States of the European Communities established a European Union.

The unique institutional framework of the EU comprises the European Parliament, the Council, the Commission, the Court of Justice and the Court of Auditors.

Given the history right from the formation of the Council of Europe through the Maastricht Treaty to the formation of European Union, the aim of the member states has been to have a collaborate and collective framework. Such framework led to the constitution of a single unified framework that could serve the member states in terms of economic, social and cultural matters and collective self-defence.

Analyses of the institutional framework

Article 2 of TEU provides the values on which the EU was founded. EU will strive for respect for human dignity, democracy, freedom, rule of law, equality and respect for human rights. Its Article 3 provides for the institutional framework of the EU to promote “peace, its values and the well-being of its peoples”. How far this institutional framework is able to promote its values and objectives is the question to be determined in this essay.

Supremacy of EU law

EU law holds primacy over member state laws. The supremacy comes from sources of EU law. The sources provides a framework that governs working of the EU and the member states’ compliances to the EU law for securing the objectives and purposes for forming the Union.

EU law comprises primary legislation, which are the treaties and the secondary legislation comprising regulations, case laws, and directives

The primary legislation constitutes the ground rules for EU actions. The EU Commission ensures the application of the treaties. Such responsibility could be found under Article 337 TFEU, where it can collect information to conducts checks to assess the performance of the tasks entrusted to it. It could hear complaints from citizens on alleged infringement of Union law by national authorities. Under Article 263 of TFEU, the Commission can bring actions regarding lack of competence or violation of a procedural requirement, Treaties or rule of law.

The secondary legislation comprises regulations, decisions and directives. Regulation has general application. It is binding in entirety and is directly applicable to member states. Directive is binding as to the result. This needs implementation by the member states. Decision is binding to whom it is addressed.

Declaration 17 of the Lisbon Treaty provides for doctrine of supremacy of EU law. Case laws of European Court of Justice (ECJ) also provide for this doctrine. For example, Flaminio Costa v Enel established the doctrine. ECJ ruled that EU law forms a core part in member states’ laws. It re-iterated the goal of making EU law independent and efficient and of uniform applying of EU laws across the member states.

Article 19 (1) of TEU also provides for the Court of Justice to interpret and apply the Treaty to ensure member states observe EU law.

The sovereignty of member states is subject to EU law through the application of direct effect. Individuals can invoke EU law in order to enforce actions when there is a conflict between EU law and member states’ laws. This finds support in Van Gend & Loos NV v Inspecteur der Invoerrechten en Accijnzen, Enschede and Article 45 of TFEU, which provides for freedom of movement.

Direct effect can be vertical direct effect when the proceeding is against a member state or its entities. It can be horizontal direct effect when the proceeding is against another individual.

Domestic courts should apply EU law without the need to refer to national law. However, member states have has the choice of form and methods (TFEU Article 288). In order that this discretion left to member states is exercise property, the ECJ can impose liability on the states if they fail to implement a directive (Francovich v Italy).

In case, member state fails to implement a directive, the principle of indirect effect applies. National law has to be interpreted in line with EU Law. Article 4(3) TEU imposes this duty to the domestic courts.

The principle of indirect effect requires national courts to interpret their national laws (Von Colson). This principle is relied on in national cases between private parties. Also, state incurs liabilities in case a Directive is not fulfilled.

Reading the principles of direct effect and indirect effect, it is understandable that EU law ensures conformity with and uniformity in application of EU law. The principles do not allow national laws and courts to distort EU law.

Within defined scope of authority

The power and authority of the EU and that of the member states are, however, subject to the scope of limitation. The general EU principles, such as principles of conferral, subsidiarity, proportionality and sincere cooperation define the scope. They ensure there is a balance in the functioning of the EU and the sovereignty of the member states and full the objective of EU provided under TEU Article 13 (1).

According to the conferral principle, the EU shall act within the competences conferred by the member states (TEU Article 5(1)) and within the stipulated limits of the powers (TEU Article 13(2)). The member states and the EU have shared and exclusive competences.

In case the competency is not exclusive, member states have the prior authority to fulfil the objective of an action. In case this is not achieved, the Union can act upon it (TEU Article 5(3)).

EU is bound by the stipulated competencies. It cannot exceed more than what is necessary to achieve Treaty objectives (TEU Article 5(4)). If otherwise, the member state can take action (Tekdemir v Kreis Bergstrasse).

TEU Article 4 provides for sincere cooperation between the Union and the member States. They owe each other duties of care, cooperate and institutions in carrying out tasks arising from the Treaties. Member states need to fulfill these duties in the form of appropriate measures to fulfill treaties’ the obligations.

TEU also imposes a social objective of member states. According to the precautionary principle (Article 191 TFEU), states should aim to take preventative measures to ensure environmental protection. States’ duties also include towards consumer policy and EU regarding food and human, animal and plant health.

The principles ensure there is a balance of authority, responsibilities and cooperation between the states and the EU. They ensure fulfilment of Article 13 (1) of TEU.

Unions rights

There are two levels of human rights framework - Charter of Fundamental Rights of the European Union and European Convention on Human Rights (ECHR). The Charter is consistent with the ECHR

The EU Charter is also a primary source of EU law. It has same legal value as the Treaties (Article 6 (1) TEU). The European Council may determine the existence of a serious and persistent breach by member states of the Article 2 values. However, the Treaty of Lisbon Protocol (No 7) excludes Poland and England from the jurisdiction of the Court of Justice or any court or tribunal to determine their compliance with fundamental rights, freedoms and principles.

On one hand, the Charter provides rights to the individuals to invoke EU law and the rights. On the other hand, a legal justification in the name of public interest can be invoked by the states to restrict the EU Charter’s rights. This justification is bound by the principle of proportionality in order to achieve the legitimate objective. For example, there is a legitimate public interest in efficient management of migration flows (Internationale Handelsgesllschaft).

The Court of Justice has jurisdictions to hear actions from member states, institutions, and individuals. These actions cover Charter rights cases and other failure by states of treaties obligation (TFEU Article 258).

Second human rights framework is provided by the ECHR. ECHR is applicable to the members of the Council of Europe. ECtHR is the judicial authority to determine ECHR compliance. It can hold a member states accountable for violation of rights under. For example, in Soering v United Kingdom (1989), ECtHR held UK liable for breach of Article 3 rights against torture, inhuman or degrading treatment, or punishment.

However, ECHR is deficient in certain aspects. For example, its Article 12 does not provide for right to marry and to found a family to LGBT community. Even the ECtHR is short in this respect as it leaves it to the member states to implement the relevant laws. Thus, until there is a domestic law in compliance with ECHR, ECtHR does not have much authority to enforce ECHR provisions.

Conclusion

The single institutional framework of the EU creates a shared sovereignty with multilevel governance in the form of the laws and the principles describing the responsibility and the scope of responsibility between the EU and the member states. The framework ensures effectiveness, coherence and continuity of the EU policies and action.

However, such framework may be influenced by states, such as the member of the Council of Europe, with bigger power. For example cases falling under the indirect effect the concerned state may influence the manner of the fulfilment of the objectives of a Directive. States may also, through the exercise of the choice of forms and methods, influence the implementation of the EU laws.

Q4.

Introduction

Before the Lisbon Treaty and the EU Charter of Fundamental Rights, the ECJ recognised multiple fundamental rights, such as protection of human dignity and personal integrity (Netherlands v Parliament and Council) the right to freedom of expression (Stichting Collectieve Antennevoorziening Gouda), equality before the law (Racke), principles of contradictory administrative proceedings and the principle of 'good administration' (Heylens) as the general principles of EU law.

In the 1969 Stauder case, the court referred to fundamental rights as a part of the general principles of Community law. In this context, this essay will discuss the general principles of EU law. It will explore how they interact with the Charter of Fundamental Rights.

General principles of EU law

The general principles of the EU law comprise the general principles of the Treaties, CJEU decisions, ECHR, and ECtHR. The general principles are in the form of proportionality, equality, freedom of religion, legitimate expectation, legal certainty, right to a fair hearing, duty to give reasons, right to due process, legal professional privilege and human rights.

The EU Charter is a primary source of EU law. The EU Charter provides for these general principles. Justice is provided under Articles 47-50. Citizens' rights are provided under Articles 39-46. Solidarity is provided for under Articles 27-38. Equality is provided under Articles 20-26. Freedoms are provided under Articles 6-19. Dignity is provided under Articles 1-5.

There are general EU principles that define the scope of the power and authority of the EU and that of the member states. They include principles of conferral, subsidiarity, proportionality and sincere cooperation.

Nature and Purpose. The purpose of the general principles of the EU law is to unify the laws, fill any gaps and provide legitimacy to the entire EU legal order. The general principles are flexibility in nature. Such flexibility enables the EU legal order to evolve and adapt to changing demands of new realities and responsibilities. It means that flexibility of the general principles allows re-interpretation of the rules to allow progress.

Many general principles are in unwritten forms. They are in the case laws. They are also codified in the TEU, such of sincere cooperation, equality, conferral, and subsidiarity, and proportionality. Principles of non-discrimination are also codified in Articles 18, 45 and 157 of TFEU.

There are other principles that do not have treaty basis. They are found the case laws of CJEU. As discussed in question 1, they are the doctrine of direct effect, supremacy of EU law and effectiveness. They are unwritten principles that are the three most distinctive principles.

Some of the principles

Conferral principle. It requires the EU to act within competences conferred by the member states (TEU Article 5(1)) and within the stipulated limits of the powers (TEU Article 13(2)). The competencies are categorised into: shared between EU and the states; exclusive of the states; and exclusive of the EU institutions.

Subsidiarity principle. Where the areas do not fall under exclusive competency, member states have the prior authority to fulfil the objective of an action. If the objective is not achieved by the state, EU can act upon it (TEU Article 5(3)). State parliaments must ensure compliance with this principle in accordance with the Protocol, entitled “On the application of the principles of subsidiary and proportionality.

Proportionality principle. The EU cannot, in the content and the form of action, exceed than what is necessary to achieve Treaty objectives (TEU Article 5(4)). In case if exceeds, member states can take action (Tekdemir v Kreis Bergstrasse).

An exception is in the form of public interest. This exception acts as a restriction of EU right and should be suitable to achieve the legitimate objective. Commission v Germany (Beer Purity Laws) concerned a French exporter complained to EU Commission alleging that the purity of Germany laws prohibited the sale of his beer in Germany. According to the law, his beer contained additives and was thus prohibited. The Commission sought to convince Germany to amend the law in order to remove the prohibition.

Sincere cooperation principle. TEU Article 4 provides that the EU and the member States should assist each other to carry out the tasks arising from the treaties. The member states need to undertake appropriate measures to fulfill treaties’ the obligations.

The EU and member states owe each other duties of care, cooperate and institutions in carrying out tasks arising from the Treaties.

Precautionary principle. This principle as provided for under Article 191 TFEU states that member states should aim to take preventative measures to ensure environmental protection. States’ duties also include towards consumer policy and EU regarding food and human, animal and plant health.

Interaction between the general principles and the EU Charter

Respect for the fundamental rights forms a core part of the EU general principles. This is enforced by the court of law. The institutional framework of the EU must ensure the protecting of these rights. Thus, these principles are a link between the EU law and the Charter. For instance, Judge Koen Lenaerts and Åkerberg Fransson is a seminal judgment developed the Wachauf case law and clarified the scope of application of the EU Charter. The judgment was based on the principles of effectiveness and loyal cooperation between the EU and its member states.

The Charter rights were judicially recognised and crafted as general principles of EU law. This was done through the interaction between the CJEU and domestic courts. For instance, in Omega, CJEU allowed a restriction on the freedom to provide services so as to protect the general principle of human dignity. This was done even while there was not common understanding of this principle across the states.

While the EU Charter is a primary source and the rights are fundament in nature, does this give power to the EU to go beyond its authorities as conferred by the states as per the principle of conferral? It must be noted that the CJEU case laws have broadened the scope of application of the Charter to the member states. They have also widened the power of the CJEU also in order to interpret the fundamental rights. It could be noted that the boundaries of the Charter will determine the jurisdiction of the CJEU in regard to review the actions of the state vis-à-vis fundamental rights. CJEU must apply the appropriate criteria for applying the EU Charter. Thus, when the general principles and the EU Charter interact, CJEU plays a vital role.

It is also claimed that since the Lisbon, the Charter has displaced the general principles. Reference to CJEU case laws and human rights’ sources are decreased as reference to the Charter has increased. This may be an appropriate consideration given that the general principles are incorporated in the EU Charter. Having a uniform application of Charter rights may lead to complexity given that EU has a federal structure. For example, equality provision may not be practical to be applied across the member states. This represents a situation where the Charter and the principle interact. General principle will find the link between the Charter and EU law.

Member states have the prior right to determine protection of individual rights acquired under European Union law. According to the principle of equivalence, the states should adopt detailed procedural rules providing not less favourable than the ones governing similar domestic situations. According to the principle of effectiveness, states must not make exercise of EU rights impossible in practice or excessively difficult.

The interaction between the member states and the EU reflects the objective of the sincere cooperation principle. The example in the above paragraph shows how the EU and member states must assist each other to carry out the tasks arising from the treaties. It also shows how the member states need to undertake appropriate measures to fulfill treaties’ the obligations. The general principles are created to advance the objectives provided under Article 2 of TEU for respect for human dignity, democracy, freedom, rule of law, equality and respect for human rights.

The observation that the EU Charter has replaced the general principles is true to a large extent. This could be derived from the situation where a state’s action is not determined by European Union law. In such situation, the domestic courts and authorities may be considered free to apply their own standards to protect the fundamental rights. However, it must be noted that any kind of domestic interpretation cannot distort the protection under the Charter of Fundamental Rights, as interpreted by CJEU. The purpose is to conform to Article 13 (1) of Treaty on European Union (TEU), which provides for effectiveness, coherence and continuity of the EU policies and actions. The principle of effectiveness, coherence and continuity could be seen applied by the CJEU in Åkerberg Fransson case where the Court interpreted ne bis in idem principle provided under Article 50 of the Charter. It observed that the principle of preventing double punishment for the same offence does not stop a state from imposing other penalties for the same acts.

The duty to respect EU fundamental rights is wide that it governs all EU institutions and the member states to interpret policies and measures in regard to the Charter rights. The concerned authority must, by abiding to the general principles, interpret the rights whether by exercising discretionary power or by EU rules within the constitutional framework and founding values and objectives of the EU.

As stated earlier, the general principles of the EU law unify the laws, fill the gaps and provide legitimacy to the EU legal order. One of the general principles that do this is the principle of direct effect. This doctrine is an example when the UN Charter interacts with the EU law. Van Gend & Loos NV v Inspecteur der Invoerrechten en Accijnzen, Enschede established the doctrine of direct effect. If a provision is given direct effect, the domestic courts should apply the provision. The courts do not need to refer to any national law. A national law should provide for direct effect. Direct effect enables protection of rights of individuals and companies. For example, ECJ in Francovich v Italy held that if member states fail to implement a directive, the state will be made liability to pay damages to any individual or company that is adversely affected by the failure.

The Charter does not expand the scope of EU law. What it does is that it addresses the offices, agencies and institutions of the EU. The general principles of EU law make it possible for Charter rights and the EU law to be interpreted and implemented within the scope of the EU law. As such, the general principles ensure that the application of the Charter is within the EU law and vice versa. Therefore, there are no powers, authorities or tasks created..

The purpose of the general principles is also to serve the purpose of the EU. It is drawn from the objective of single organization framework. The general principles uplift the aim of institutional framework to promote and defend the values, objectives and interests of the EU. By ensuring that the EU laws and the UN Charter are interpreted and implemented, the general principles promotes the effectiveness, coherence and continuity of the EU policies and actions. The general principles advance the provision of Article 13 (1) of TEU, which upholds the purpose of a single institutional framework.

Conclusion

To conclude, there is an overlapping space between the general principles and the Charter. So far, it seems there is no divergence between the general principles and the UN Charter. It may be due to the reason that the Charter encompasses the general principles. This may strengthen the homogeneity between the general principles and the Charter.

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