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.
Sir Francis Jacobs
This chapter discusses three primary roles of comparative law in EU law. First, comparative law is used in the making and application of European law: for example, in the crafting and interpretation of European legislation and in the case law of the European Court of Justice. Second, European law has exerted a significant influence on other legal systems. A third role of comparative law relates to questions about the very nature of European law: how it is to be classified, or whether it is a novel form of ‘transnational law’. Civil and common law systems are also considered in relation to comparative law, along with the ‘components’ or ‘sources’ of European law: treaty provisions and constitutional principles, EU legislation, general principles of law, international law, and case law of the Court. The chapter concludes with an overview of the distinction between private law and public law, a comparison of EU and federal systems, and a survey of other transnational systems inspired by the European Union model.
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.
This chapter traces the evolution of the Court’s approach in applying the fundamental freedoms to direct tax rules, as illustrated by the most important lines of cases. The author argues that, although this area remains a particularly challenging one for the Court, the case law has now reached a level of maturity and generally strikes a proper balance between the EU and national fiscal interests; nevertheless the Court has been overly cautious and dogmatic in certain respects, in particular by not obliging Member States to address the problem of juridical double taxation by granting immunity to provisions included in bilateral tax treaties that would otherwise be unlawful, and by permitting states to circumvent the rules on discriminatory source taxation by integrating shareholder and corporate taxation. Ultimately, however, action by the legislator would be required to resolve all the problems for the single market posed by national direct tax rules.
Although the development of EU law is the result of the interaction of many political and institutional actors, no other relationship is perhaps as important as that between the ECJ and the national courts. Their interaction is dialectical, full of circumspection and deference, albeit occasionally tense, and based on an incomplete and somewhat unstable political bargain. This contribution seeks to explore some recent trends in this intra-judicial dialogue. It looks at the attributes of the interaction between the ECJ and the national courts, the centralized constitutional model favoured by the ECJ case law, and the vexed issue of Kompetenz-Kompetenz. Finally, it explores some recent judgments which suggest uneasiness and even open defiance on the part of some the national supreme jurisdictions.
Effectiveness of EU Law before National Courts: Direct Effect, Effective Judicial Protection, and State Liability
The chapter discusses the fundamental doctrines of EU law regulating its effect before national courts: direct effect, the obligation of consistent interpretation, Member State liability for breach of EU law, and horizontal effect of general principles and provisions of the Charter of Fundamental Rights. It points to different conceptions of the direct effect doctrine and its limits in horizontal situations with respect to Directives. It shows how the obligation of consistent interpretation substitutes for the absence of horizontal direct effect of Directives and discusses other ways in which Directives generate effects in contractual situations or serve as standards of direct review of national administrative acts. It concludes by asking whether the discussed doctrines constitute a coherent picture of EU law’s effectiveness before national courts from the perspective of the values of legal certainty, fairness, and social justice, and how they are related to the principle of primacy of EU law.
This chapter explores the relationship between the EU and national systems of labour law. It explains the compromise reached in the Treaty of Rome and how it has begun to unravel. Both EU internal market law and the process of first creating and now governing the Eurozone in a time of crisis have had significant negative effects on the ability of the Member States to preserve and develop national systems of labour law. What has been lost at the national level has not been replaced at the European level, despite the gradual increase in the EU’s competence in the social field. While the new constitutional structure agreed at the Treaty of Lisbon offers some comfort, particularly as regards the relationship between economic freedoms and fundamental rights, it is important that all actors involved in the making of EU law find a better way to reconcile ‘the economic’ and ‘the social’.
This chapter provides an account of the state of EU asylum and immigration law under the Area of Freedom Security and Justice (AFSJ). In the case of asylum, it is argued that the Common European Asylum System (CEAS) legislation suffers from incomplete or mal-implementation, resulting in vast differences in practice between the Member States in the level of protection afforded to asylum seekers, and diverse rates of recognition of refugees across the Union. With regard to immigration law, it is argued that while Member States have in general been eager to adopt legislative and operational measures in the interests of curbing irregular migration, they have shown markedly less enthusiasm for harmonization of rules on regular migration into the Union. Finally, the chapter examines the relationship between the two fields, in particular the implications of the EU’s immigration and border control regime on asylum.
What constitutional principles govern Union competences? Article 5 TEU identifies three constitutional principles: conferral; subsidiarity; and proportionality. The principle of conferral concerns the (limited) existence of Union competences. These competences are limited in two ways. Quantitatively, they will be confined by a—limited—material scope; qualitatively, they might be limited to a particular type of intervention. In contrast to the principle of conferral, the principles of subsidiarity and proportionality do not concern the existence of legal competence but only limit its exercise. According to the principle of subsidiarity, the Union must show that it is better able to solve a social problem than the Member States; whereas the proportionality principle generally insists that Union action must not exceed what it necessary to achieve a Union objective. This chapter analyses each of the three constitutional principles governing Union competences and the conceptual relations between them.
The discussion here traces the emergence of the body of policy and rules now collected under the heading ‘EU criminal law’ from its historical multi-level origins to its present location in the EU’s Area of Freedom, Security and Justice, focusing on the developing legislative competence and significant reliance on the strategy of mutual recognition to achieve progress in this context. At the same time, it is necessary to consider how legislation and judicial activity in this field relates to the operational aspects of a number of EU criminal justice agencies, in particular OLAF, Europol, and Eurojust. However, questions remain concerning the identity and role of EU criminal law: whether it should be seen as a regional mechanism for the transnational control of human mobility, or whether it comprises a genuinely distinctive and new articulation of European values in criminal law and criminal justice.
Intellectual property rights are crucial for encouraging creativity and innovation. They contribute significantly to employment and GDP within the EU. The IP system is of both economic and social importance. Intellectual property has global significance also. EU IP systems and rights must therefore work well not only within the EU and its Member States, but also within the complex international context. The EU IP system must also be regarded with confidence by stakeholders. Protection of IP rights is important, but so is access to intellectual property. From a very high-level view, harmonizing EU schemes has worked well on the whole. Nevertheless, reform and improvement remain a continuing priority, and the environment is challenging and rapidly changing. The Unitary Patent seems about to come into effect, though its success remains to be demonstrated.
This chapter deals with European criminal law and its relation to domestic law, international law, transnational law, and criminal justice. It begins with an introduction to general institutional developments in the structures of the European Union that resulted in the emergence of a fragmentary transnational criminal law. In particular, it traces the development of European criminal law to deal with crime control involving terrorism and other crimes of an international character, from the Amsterdam Treaty (1997/1999) to the Framework Decision. It also discusses cooperation in the field of criminal law among the Member States of the European Union. Attention then turns to the general traits of international criminal law. In the EU setting, the adoption of the mutual recognition principle as the cornerstone of criminal law cooperation is given consideration.