An Introduction to the
EU Legal Order
Elise Muir
1
,2
,CHAPTER 1: THE FOUNDATIONS OF EU LAW
The essential purpose of the EU: Art. 1 §2 TEU
‘An ever closer union among the peoples of Europe’
Shaped to support a dynamic process of European integration
Idea = a peaceful union without war
1. European integration: objectives, principles, and values
Post-WW 2 traumas
Initially and primarily articulated in economic terms
A commitment to build a common future
2 founding principles
1) The equality of the Member states
o All the states of the EU must be treated equally
o No discrimination on ground of nationality between workers in the EU
o Combined with respect for their national identities
2) Sincere cooperation
o Acting in good faith towards the other states
o All the participating entities must play by the rules
o When the rules are not clear, then you must act in good faith
Act in a way that is loyal to the organization
A set of values: art. 2 TEU
In theory they are common – in practice they are not always followed (Poland, Hungary)
Respect for human dignity, freedom, democracy, equality
Respect for human rights
How can we define the values in art. 2 TEU?
o Not defined in the article itself
o Each member state can have a different interpretations
o There is more information in other articles
Art. 10 TEU: ‘democracy’
Art. 6 TEU
Principle = ‘mutual trust’ between the member states
o A presumption that the values will be recognized
o We must presume that the new states comply with the values
o The primary idea is that the member states can trust each other
2. A unique form of regional integration
A particularly ambitious range of policy areas
Very powerful tools
3
,Forms of economic integration
A free trade area = a group of countries that have agreed to mutually lower or eliminate trade
barriers for trade within the area
A customs union = a group of states that have agreed to charge the same import duties to
territories from outside the contracting parties and usually to allow free trade between
themselves
A common market = free movement of persons, services and capital
o You will be checked at the border, but won’t be held on
An internal market = an area without internal frontiers in which the free movement of goods,
persons, services and capital is ensured
o You won’t be checked at the border
The EU: An ambitious integration process
Much more than an economic integration
A monetary policy with a single currency: the Euro
No internal frontiers
An area of freedom, security and justice
A free trade area, a custom union, a common market and an internal market
= very advanced form of economic integration (free movement of goods, services and capital),
EU is much more than just a form of economic integration
It engages more with political objectives
o All the nationals of the member states are also EU citizens It gives us political rights:
voting for European union
o It also has a common economic and monetary policy the Euro
o It has created an area of freedom, security and justice: we try to establish minimum
standards to organize migration, combats against cross border crimes (terrorism, crime
against the environment,…)
o A common foreign and security policy
Not easy to find a common voice to express what the EU wants
Actua: war Palestine - Israel, how does the EU have to operate?
A Regional Project that interacts with others
EFTA: European free trade association (Iceland, Liechtenstein, Norway and Switzerland)
o The EFTA states are not part of the EU!
o States have created a European free trade area
o They do not have a common currency,…
o Most EFTA states (exception of Switzerland) are part of the EEA
Economic relations between the EU and the EFTA-states
The states are part of the internal market
Purchases in these countries: same way as the other countries of the EU
o Also part of the Schengen Area: no internal border controls
o Yet closer relations between EU – Norway
4
,A powerful set of Tools for integration
Tradition: intergovernmental method
o Reflecting the interests of each individual state
o Consensus of state representatives
o Representatives of the governments meet and make an agreement
EU: supranational method
o The representation of other interests the ‘common good’
o Independent institutions = they do not depend on an individual will of a member state,
they are meant to act for the general interest of the EU
o Law of the EU is automatically applicable and spread in the national legal system
Principle of direct effect & primacy
EU law always wins in a conflict with the national law
o Integration through law: the centrality of the Treaties on the European Union, in the
process of European integration
The EU institutions
1) The Parliament – art. 14 TEU
o The members are directly elected by EU citizens by universal suffrage
o Function: to be a co-legislator, co-decider when it comes to the EU budget
2) The European Council – art. 15 TEU
o Has a strong intergovernmental tone
o It consist of Heads of State or Government (leaders) + own president (Charles Michel)
+ Commission’s President (Ursula von der Leyen)
o In case of a big crisis: a meeting to discuss how to approach the problem
3) The Council – art. 16 TEU
o Composed of representatives of the member states at ministerial level
o (Co)-decides EU budget + co-legislator + policy-making & coordination
4) The commission – art. 17 TEU
o Independent members: meant to act in the general interest of the EU
o 1 per state
o 2 key functions: propose legislation + ensures application of EU law
5) The Court of justice of the European union – art. 19 TEU
o Independent members: judges
o Ensures that the EU-law is observed
5
,3. Evolution
From the EEC to the European community (EC) within the European Union (EU)
Several amendments that have pushed to more supranational and democratic tools
A number of landmark stages in the process from the EEC to the EU
Integration = treaty reforms + enlargements
6
,Towards the TEEC
W. Churchill
o Calling for a kind of United States for Europe: the aftermath of the WW 2
o Wanted to stimulate cooperation among European states
o ‘We need to develop together’
The European Convention for the Protection of Human Rights and Fundamental Freedoms
(ECHR, 1950)
o The council of Europe in Strasbourg
o To promote the protection of fundamental rights and the rule of law democracy
The Shuman declaration (1950, Paris): a common economic system
o Bringing the states together through economic integration
o Suggested starting with Cole and Steel
o Rebuilding the economies, building up mutual control and trust
o Step by step process
The ECSC (1951, Paris) = The European Coal and Steel Community
o Creating free trade in one specific field: coal and steel
o To make sure that not one state is getting more powerful
The TEEC = Treaty of Rome
The Treaty establishing the European Economic Community
All trading good and services, persons, capital + more ambitious frame work
EURATOM = Treaty establishing the European Atomic Energy Community
By the end of the 1970 there are 3 communities (ECSC, EEC and Euratom)
o All the 3 communities rely on the same institutions
o The coal and steal community has become integrated in the EEC, but Euratom
continues to exist with a separate treaty frame work
A bumpy start for the EEC
o De Gaulle (France) disagreed with the Council he left = ‘Empty Chair Crisis’
o Solution for the crisis in the Luxembourg compromise
Agreement that if one of the participating states would express serious concern
the participating states agreed to not take a vote and to continue the
negotiations
Bad news: slows down the EU-decision making process
o Side note: This crisis and compromise are very important to understand the tensions at
EU level. It illustrates the tension between the
need to ensure the efficiency of law making: so
to be able to make decisions even if not all
states agree. But there also exist mechanism in
the EU to allow in certain circumstances
specific interests to be expressed by the states.
7
, 1970’s: amendments to the Treaty of Rome
o A system of own resources
It will start to have its own budget
Not anymore depending on the member states
Increases their independence
o Elections for the Assembly
The representatives are directly elected
Direct universal suffrage
o The development of the meetings of the European Council
They started meeting on a regular basis
‘Gatherings of the European Council’
o ‘Growing size’ of the institutions
o Court of justice’s key cases: the court develops a very ambitious case law
Parallel developments at European level spill-over effect
States start to trust each other more and more
Increasing cooperation
Three sets of development
1. The EEC became an important actor on the international stage
2. MS took steps towards the creation of an economic and monetary union
EMU = a common currency
EMS = a durable and effective scheme for a zone of monetary stability in
Europe
ECU = European currency Unit (before the Euro)
3. Cooperation in the field of police, security, and justice also necessary
If you have a common market where goods, services and people can move
crime / drugs / weapons can also start moving we have to cooperate better
in the field of security
Action on migration control and asylum (asiel)
THE SEA = The Single European Act – 1986
Focusses of the MS
o Strengthening and developing European political cooperation
o Continuing to progress towards a European Monetary Union
o More effort needed to improve the functioning of the common market
o A reflection on how to deal with the related budgetary implications
2 main categories of changes
o A reform of the institutional framework of the EEC
Greater efficiency in decision making
Advancing the role of the European Parliament (changed its name)
The parliament must be given more voice: members are directly elected
o A new EEC policy on cooperation in Economic and Monetary Policy
8
, Goal = to speed up the completion of the internal market
o The decision making became more important: had to go faster
o Change in voting system: QMV = Qualified Majority Voting
Eliminated the Luxembourg compromise
A special majority, but it’s still a majority, not unanimity
o The concept of an ‘area without internal frontiers’
Cross-border movements of goods, persons, services and capital
A new objective
Matters not (fully) addressed by the SEA
o Cooperation on matters of police, security, justice, migration and asylum
o Community Charter of Fundamental Social Rights of Community Workers
o The question of the budgetary difficulties
The Treaty of Maastricht – 1992 (TEU + TEEC TEC)
Jacques Delore: the three-step approach
Focusing on the ‘Political Union’ going beyond the single market and economic and
monetary union
o TEEC TEC: not only focused on the economics anymore
o Also: outcome = the signature of the TEU
The three-pillar structure: relied on a single institutional framework composed of different legal
regimes
o The 1st pillar = the community pillar: about EURATOM, Cole and Steel and EC
o The 2nd pillar = CFSP (common values, fundamental interests, independence)
o The 3rd pillar = JHA (asylum, border control, migration policy, judicial cooperation)
o All pillars together = the European Union
1st pillar: supranational
2nd and 3rd pillar: intergovernmental
o An attempt to bridge between the inter-governmental nature of several policies
developed outside of the EEC Treaty since the 1970s and (almost) supranational ones
9
, The main changes: pillar 1
o Change of name TEEC TEC
o Increasing democratic legitimacy
European citizenship for nationals of the MS (gives a right to vote, to move, …)
A greater role for the Parliament in decision-making procedures
o Institutional effectiveness
Growing importance of the European Council
QMV
o The creation of new competences for the EEC
Customer protection
EMU
Differentiated integration
o Principle : ‘we all do the same’
o In practice: ways of differentiation
o Soms rules make an exception for certain groups of states
o The more we want to do together, the more we need exceptions
o Eg. In the economic and monetary union
Denmark = part of the EU but doesn’t want a common currency
o Eg. The protocol on social policy
UK doesn't want to be bound
Treaty of Amsterdam – 1997
An enlargement of the EU: 15 States
Necessary institutional changes institutional consequences: the ‘Ioannina compromise’
o The values, principles of Art. 2 TEU sanctioning MS for breaches
o Again: the role of the Parliament increases
o Institutional changes
It takes parts of the 3rd pillar into the 1st pillar: justice and home affairs used
to be in the 3rd pillar, but is now cooperated in standard community law
Law-making becomes closer to the supernational method
o Enhanced cooperation: new mechanism
Art. 20 TEU
Allowing a group of MS to work more closely in certain areas, in particular as
a last resort solution, when it has been established within the Council that the
objectives pursued by these Member States cannot be attained by the EU as a
whole
Treaty of Nice – 2001
Big increase of the states 27/28 MS
No major changes, minor institutional changes
o Increasing the share on the EU-budget
o Planning EU-spendings over 7 years gives stability
Political crisis: the Santer Commission
10
EU Legal Order
Elise Muir
1
,2
,CHAPTER 1: THE FOUNDATIONS OF EU LAW
The essential purpose of the EU: Art. 1 §2 TEU
‘An ever closer union among the peoples of Europe’
Shaped to support a dynamic process of European integration
Idea = a peaceful union without war
1. European integration: objectives, principles, and values
Post-WW 2 traumas
Initially and primarily articulated in economic terms
A commitment to build a common future
2 founding principles
1) The equality of the Member states
o All the states of the EU must be treated equally
o No discrimination on ground of nationality between workers in the EU
o Combined with respect for their national identities
2) Sincere cooperation
o Acting in good faith towards the other states
o All the participating entities must play by the rules
o When the rules are not clear, then you must act in good faith
Act in a way that is loyal to the organization
A set of values: art. 2 TEU
In theory they are common – in practice they are not always followed (Poland, Hungary)
Respect for human dignity, freedom, democracy, equality
Respect for human rights
How can we define the values in art. 2 TEU?
o Not defined in the article itself
o Each member state can have a different interpretations
o There is more information in other articles
Art. 10 TEU: ‘democracy’
Art. 6 TEU
Principle = ‘mutual trust’ between the member states
o A presumption that the values will be recognized
o We must presume that the new states comply with the values
o The primary idea is that the member states can trust each other
2. A unique form of regional integration
A particularly ambitious range of policy areas
Very powerful tools
3
,Forms of economic integration
A free trade area = a group of countries that have agreed to mutually lower or eliminate trade
barriers for trade within the area
A customs union = a group of states that have agreed to charge the same import duties to
territories from outside the contracting parties and usually to allow free trade between
themselves
A common market = free movement of persons, services and capital
o You will be checked at the border, but won’t be held on
An internal market = an area without internal frontiers in which the free movement of goods,
persons, services and capital is ensured
o You won’t be checked at the border
The EU: An ambitious integration process
Much more than an economic integration
A monetary policy with a single currency: the Euro
No internal frontiers
An area of freedom, security and justice
A free trade area, a custom union, a common market and an internal market
= very advanced form of economic integration (free movement of goods, services and capital),
EU is much more than just a form of economic integration
It engages more with political objectives
o All the nationals of the member states are also EU citizens It gives us political rights:
voting for European union
o It also has a common economic and monetary policy the Euro
o It has created an area of freedom, security and justice: we try to establish minimum
standards to organize migration, combats against cross border crimes (terrorism, crime
against the environment,…)
o A common foreign and security policy
Not easy to find a common voice to express what the EU wants
Actua: war Palestine - Israel, how does the EU have to operate?
A Regional Project that interacts with others
EFTA: European free trade association (Iceland, Liechtenstein, Norway and Switzerland)
o The EFTA states are not part of the EU!
o States have created a European free trade area
o They do not have a common currency,…
o Most EFTA states (exception of Switzerland) are part of the EEA
Economic relations between the EU and the EFTA-states
The states are part of the internal market
Purchases in these countries: same way as the other countries of the EU
o Also part of the Schengen Area: no internal border controls
o Yet closer relations between EU – Norway
4
,A powerful set of Tools for integration
Tradition: intergovernmental method
o Reflecting the interests of each individual state
o Consensus of state representatives
o Representatives of the governments meet and make an agreement
EU: supranational method
o The representation of other interests the ‘common good’
o Independent institutions = they do not depend on an individual will of a member state,
they are meant to act for the general interest of the EU
o Law of the EU is automatically applicable and spread in the national legal system
Principle of direct effect & primacy
EU law always wins in a conflict with the national law
o Integration through law: the centrality of the Treaties on the European Union, in the
process of European integration
The EU institutions
1) The Parliament – art. 14 TEU
o The members are directly elected by EU citizens by universal suffrage
o Function: to be a co-legislator, co-decider when it comes to the EU budget
2) The European Council – art. 15 TEU
o Has a strong intergovernmental tone
o It consist of Heads of State or Government (leaders) + own president (Charles Michel)
+ Commission’s President (Ursula von der Leyen)
o In case of a big crisis: a meeting to discuss how to approach the problem
3) The Council – art. 16 TEU
o Composed of representatives of the member states at ministerial level
o (Co)-decides EU budget + co-legislator + policy-making & coordination
4) The commission – art. 17 TEU
o Independent members: meant to act in the general interest of the EU
o 1 per state
o 2 key functions: propose legislation + ensures application of EU law
5) The Court of justice of the European union – art. 19 TEU
o Independent members: judges
o Ensures that the EU-law is observed
5
,3. Evolution
From the EEC to the European community (EC) within the European Union (EU)
Several amendments that have pushed to more supranational and democratic tools
A number of landmark stages in the process from the EEC to the EU
Integration = treaty reforms + enlargements
6
,Towards the TEEC
W. Churchill
o Calling for a kind of United States for Europe: the aftermath of the WW 2
o Wanted to stimulate cooperation among European states
o ‘We need to develop together’
The European Convention for the Protection of Human Rights and Fundamental Freedoms
(ECHR, 1950)
o The council of Europe in Strasbourg
o To promote the protection of fundamental rights and the rule of law democracy
The Shuman declaration (1950, Paris): a common economic system
o Bringing the states together through economic integration
o Suggested starting with Cole and Steel
o Rebuilding the economies, building up mutual control and trust
o Step by step process
The ECSC (1951, Paris) = The European Coal and Steel Community
o Creating free trade in one specific field: coal and steel
o To make sure that not one state is getting more powerful
The TEEC = Treaty of Rome
The Treaty establishing the European Economic Community
All trading good and services, persons, capital + more ambitious frame work
EURATOM = Treaty establishing the European Atomic Energy Community
By the end of the 1970 there are 3 communities (ECSC, EEC and Euratom)
o All the 3 communities rely on the same institutions
o The coal and steal community has become integrated in the EEC, but Euratom
continues to exist with a separate treaty frame work
A bumpy start for the EEC
o De Gaulle (France) disagreed with the Council he left = ‘Empty Chair Crisis’
o Solution for the crisis in the Luxembourg compromise
Agreement that if one of the participating states would express serious concern
the participating states agreed to not take a vote and to continue the
negotiations
Bad news: slows down the EU-decision making process
o Side note: This crisis and compromise are very important to understand the tensions at
EU level. It illustrates the tension between the
need to ensure the efficiency of law making: so
to be able to make decisions even if not all
states agree. But there also exist mechanism in
the EU to allow in certain circumstances
specific interests to be expressed by the states.
7
, 1970’s: amendments to the Treaty of Rome
o A system of own resources
It will start to have its own budget
Not anymore depending on the member states
Increases their independence
o Elections for the Assembly
The representatives are directly elected
Direct universal suffrage
o The development of the meetings of the European Council
They started meeting on a regular basis
‘Gatherings of the European Council’
o ‘Growing size’ of the institutions
o Court of justice’s key cases: the court develops a very ambitious case law
Parallel developments at European level spill-over effect
States start to trust each other more and more
Increasing cooperation
Three sets of development
1. The EEC became an important actor on the international stage
2. MS took steps towards the creation of an economic and monetary union
EMU = a common currency
EMS = a durable and effective scheme for a zone of monetary stability in
Europe
ECU = European currency Unit (before the Euro)
3. Cooperation in the field of police, security, and justice also necessary
If you have a common market where goods, services and people can move
crime / drugs / weapons can also start moving we have to cooperate better
in the field of security
Action on migration control and asylum (asiel)
THE SEA = The Single European Act – 1986
Focusses of the MS
o Strengthening and developing European political cooperation
o Continuing to progress towards a European Monetary Union
o More effort needed to improve the functioning of the common market
o A reflection on how to deal with the related budgetary implications
2 main categories of changes
o A reform of the institutional framework of the EEC
Greater efficiency in decision making
Advancing the role of the European Parliament (changed its name)
The parliament must be given more voice: members are directly elected
o A new EEC policy on cooperation in Economic and Monetary Policy
8
, Goal = to speed up the completion of the internal market
o The decision making became more important: had to go faster
o Change in voting system: QMV = Qualified Majority Voting
Eliminated the Luxembourg compromise
A special majority, but it’s still a majority, not unanimity
o The concept of an ‘area without internal frontiers’
Cross-border movements of goods, persons, services and capital
A new objective
Matters not (fully) addressed by the SEA
o Cooperation on matters of police, security, justice, migration and asylum
o Community Charter of Fundamental Social Rights of Community Workers
o The question of the budgetary difficulties
The Treaty of Maastricht – 1992 (TEU + TEEC TEC)
Jacques Delore: the three-step approach
Focusing on the ‘Political Union’ going beyond the single market and economic and
monetary union
o TEEC TEC: not only focused on the economics anymore
o Also: outcome = the signature of the TEU
The three-pillar structure: relied on a single institutional framework composed of different legal
regimes
o The 1st pillar = the community pillar: about EURATOM, Cole and Steel and EC
o The 2nd pillar = CFSP (common values, fundamental interests, independence)
o The 3rd pillar = JHA (asylum, border control, migration policy, judicial cooperation)
o All pillars together = the European Union
1st pillar: supranational
2nd and 3rd pillar: intergovernmental
o An attempt to bridge between the inter-governmental nature of several policies
developed outside of the EEC Treaty since the 1970s and (almost) supranational ones
9
, The main changes: pillar 1
o Change of name TEEC TEC
o Increasing democratic legitimacy
European citizenship for nationals of the MS (gives a right to vote, to move, …)
A greater role for the Parliament in decision-making procedures
o Institutional effectiveness
Growing importance of the European Council
QMV
o The creation of new competences for the EEC
Customer protection
EMU
Differentiated integration
o Principle : ‘we all do the same’
o In practice: ways of differentiation
o Soms rules make an exception for certain groups of states
o The more we want to do together, the more we need exceptions
o Eg. In the economic and monetary union
Denmark = part of the EU but doesn’t want a common currency
o Eg. The protocol on social policy
UK doesn't want to be bound
Treaty of Amsterdam – 1997
An enlargement of the EU: 15 States
Necessary institutional changes institutional consequences: the ‘Ioannina compromise’
o The values, principles of Art. 2 TEU sanctioning MS for breaches
o Again: the role of the Parliament increases
o Institutional changes
It takes parts of the 3rd pillar into the 1st pillar: justice and home affairs used
to be in the 3rd pillar, but is now cooperated in standard community law
Law-making becomes closer to the supernational method
o Enhanced cooperation: new mechanism
Art. 20 TEU
Allowing a group of MS to work more closely in certain areas, in particular as
a last resort solution, when it has been established within the Council that the
objectives pursued by these Member States cannot be attained by the EU as a
whole
Treaty of Nice – 2001
Big increase of the states 27/28 MS
No major changes, minor institutional changes
o Increasing the share on the EU-budget
o Planning EU-spendings over 7 years gives stability
Political crisis: the Santer Commission
10
