This chapter examines the procedures for acceding to and withdrawing from the European Union. It is argued that, while determined by (Member) states’ decisions, accession and withdrawal are also driven by EU institutions, and by the canons of the EU legal order. Indeed, more than simply governing the entry into, and the exit from the Union, the two procedures fulfil a specific function in relation to its objective of an ‘ever closer union amongst the peoples of Europe’. As such, they are fully embedded in the system of the treaties, and form an integral part of the evolving EU constitutional structure they underpin.
This chapter focuses on accountability and its political, legal, and financial aspects. Drawing on Mark Bovens’ conception of accountability that addresses the relationship between an actor and a forum, it examines how political, legal, and financial accountability apply to the European Union institutions as well as to the Member States. More specifically, it discusses the nature of the political, legal and financial accountability that rests, or should rest, on the Member States in their capacity as contracting parties to the EU. The chapter also considers three principal dimensions that shape discourse on political accountability, along with the relevance of Member States’ political accountability in relation to substantive Treaty provisions and compliance with EU legislation. After analysing the foundational precepts of EU legal accountability, including the amenability of EU institutions to judicial review and access to judicial review by aggrieved individuals, the chapter concludes by outlining the foundational precepts of EU financial accountability.
Alexander H. Türk
Comitology has become an integral feature of the EU’s legal system by integrating national administrations and the European Commission within a formally established organizational framework for the adoption of implementing acts at Union level. The comitology system allows the Member States to sanction the delegation of considerable powers to the Commission while at the same time allowing them to retain a varying degree of control over the exercise of those powers. The cooperation between national civil servants and the Commission behind closed doors has provided a forum for consensual problem solving and could be said to have contributed to greater efficiency of the Union’s implementation process. At the same time, the ever expanding use of comitology within Union law and the politically sensitive nature of its output make it necessary to ensure its operation meet the Union’s demands of democratic legitimacy and accountability.
This chapter deals with the European Union law on competition and mergers, with emphasis on the provisions of Articles 101 and 102 of the TFEU. The role of markets is to coordinate supply and demand. EU competition law is applied to address situations in which firms are able to distort the ability of markets to coordinate supply and demand, such problems arising when firms are able to aquire or exercise power over the market. A number ways in which problems of market power manifest themselves and the ways in which EU competition law can be, and has been, marshalled to address those problems are the subject of this chapter. This chapter considers the idea of a market and the absence of competitive constraints, before consider unilateral and collusive behaviour giving rise to or exploiting market power. Finally, it considers the EU Merger Regulation as a primary instrument for regulating the competitive consequences of durable changes in market structure.
This chapter examines and appraises the system for enforcing Articles 101 and 102 TFEU that has developed in the EU, and considers whether effective enforcement mechanisms have been put in place that adequately respect the rights of the undertakings or persons involved. It examines both public enforcement through the European Competition Network, comprised of the Commission and national competition authorities, and private enforcement, through civil litigation in the national courts. In particular, it considers whether the EU enforcement system, under which the Commission performs investigative, enforcement, and adjudicative functions and the role of the EU courts is confined to review of the decisions and penalties imposed, is adequate to protect the fundamental rights of the undertakings involved in investigations. It also examines the steps that have been taken at EU level to increase the volume of private litigation and to ensure full compensation for antitrust victims.
The harmonization of national laws is a traditional and prominent instrument for achieving the internal market. This chapter aims at recalibrating the scope, the role and the shape of the programme of legislative harmonization in the EU. It shows that harmonization should be seen as a broad, complex and virtually unlimited process concerned with the removal of barriers to trade as much as with the institutional, social and moral infrastructures of the market. It is a process that looks for effectiveness and uniformity in market integration but is anxious to accommodate social and cultural diversity. It involves the EU legislator, European Court of justice and the Member States as well as a large set of private actors.
The chapter introduces the Court of Justice of the EU by looking at five key elements defining the institution in a diachronic perspective: the structure of the Union courts located in Luxembourg, looked at vertically (the ECJ, the GC, and the CST) as well as horizontally (division of work within the ECJ and in particular the role of the grand chamber); the type of judicial business the Court of Justice carries out today, in both its quantitative as well as qualitative dimensions; its composition, including the recent changes made by the Treaty of Lisbon to the way in which judges and Advocates General are selected and appointed; the often discussed reasoning style and structure of the judgments; and, finally, the even more frequently discussed and recurring question of the legitimacy of the Court of Justice.
This chapter examines the provisions of the Treaty on the Functioning of the European Union regulating capital movements both within the internal market and between Member States and third countries (Articles 63–65 TFEU). It reflects critically on the impact of these provisions on the activities of two distinct categories of market participant: corporate actors and (Union) citizens. The legal framework governing both intra- and extra-EU capital movements is characterized as an unusual mixture of the familiar and the exceptional. On the one hand, the free movement of capital is now an integral part of the internal market. At the same time, however, it retains key distinguishing features: a unique evolutionary trajectory; an external scope of application; and an uncharacteristic degree of residual direct Member State control.
Analysis of EU law making is made difficult by the presence of multiple legislative procedures. Matters are further complicated by neither national nor postnational models of democracy providing convincing answers as to when EU law making is democratic. This grants EU law making a democratic ambiguity. It is committed to democracy and has democratic features, but not sufficiently to convince the Union’s citizens of its democratic authority. The scepticism generated by this is itself valuable. Democratic ambiguity generates further positive features within all EU legislative procedures: the possibility of triple review by different institutional actors—the European Parliament, national governments, and national parliaments. This is unparalleled but compromised by other features of EU law making: first, the lack of compass to indicate when it is democratic for the Union to legislate, and second, democratic fluidity, the presence of informal processes that serve to bypass and undermine this triple review.
Niamh Nic Shuibhne
This chapter explores how the legal dimensions of Union citizenship are developing, more than 20 years after its genesis through the Maastricht Treaty. It first provides a brief overview of the current Treaty framework, and of its implementation through secondary law. The developing legal dimensions of citizenship are then examined in a more substantive sense. Two complementary case studies—the interpretation of Directive 2004/38 and the primary citizenship rights conferred by the Treaty—are presented in order to tease out the themes shaping the construction of citizenship law. The chapter concludes by reflecting on the deficiencies of citizenship when seen purely from the perspective of its legal development, especially when confronted with an intensifying migration debate that challenges the very fundamentals of free movement rights.