EU law or EC law? Which is it? Some books and courses refer to “EU law”, while others still speak of “EC law” - some students are puzzled and confused by this when they first study European law, so it may be worth addressing it up front.
We'll see later in this chapter that what people often call the European Union, using that term in a general, non-legal way, is actually made up of two entities, as a matter of law. We will also look at Express Solicitors
The European Community, which pre-dated the EU, still exists; and its laws and policies remain by far the biggest and most important part of what Europe does. It follows that almost all, if not all, the law you need to know is the law of the European Community, or EC law. That's why some books and courses that teach the subject still use that term: they're not out of date or using old terminology - simply being strictly accurate. The European Union is, strictly speaking, a separate body dealing only with foreign and security policy and police and criminal cooperation, and with much less in the way of developed law behind it. However the term European Union or “EU” is also used in an overarching sense to include both the EU and the EC – which is why some courses and books talk about “EU law”.
Finally, if and when the Lisbon Treaty is in force and amends the Treaties, the EC and EU will be merged into one body, which will be called the EU.
The EU and the ECHR The European Convention on Human Rights is not part of this course. The ECHR is a Convention that binds the member states of the Council of Europe – which is quite separate from the EU and includes a broader membership, including Turkey and Russia, for example. The law of the ECHR is not part of EU law.
Having said that, it is true that EU law looks to the ECHR in some respects – and the rights in the ECHR are given effect to by the European Court of Justice as general principles of EU law. We'll consider that in a later chapter.
What is the EU? Think about this for a moment: what's your answer? You may have said the EU is a group of states, or a political union made up of 27 countries. Well, that's true in a general political sense. Legally, though, the EU is (or as explained above, strictly speaking the EU and the EC are) separate from member states.
Looking at the European Community, for instance, it is an international organisation - like, say, the UN. In fact it's a particular sort of international organisation called a REIO or “Regional Economic Integration Organisation”. Its membership consists of states in a particular global region, obviously, and its main focus is economic integration, both in terms of freeing up member states' trade between each other, and in terms of integrating their approach to international trade with non-European – or “third” countries. This is how it differs from other types of international organisations such as NATO, for example, which is a military alliance. Other examples of REIOs outside Europe are ASEAN and MERCOSUR.
The EC is however special - and arguably unique. It is the most developed transnational organisation in terms of law, policy and institutions, and its impact on citizens of its member states is profound. It has a political life of its own, and its institutions are so powerful and their structure so developed that it can be called a “supranational union” and some see it as akin to a “superstate”. Whether the EU can be called a state, or is or should be developing into one, is a matter of considerable political controversy: you'll be invited to consider later ways in which the EU resembles a state and in which it differs from one.
A bit of history (but only a bit) It's useful to know some of the history of the EU – though this course will focus very clearly on EU law now.
European history is scarred by conflict – between regional powers within what we now know as Germany and Italy, for example, and between European countries, whether England and Spain or France and Germany. But in the aftermath of World War II many political leaders were determined to find some new form or forms of political cooperation and organisation that might prevent such conflicts arising again. In 1946 Winston Churchill called famously for a “United States of Europe” (though he saw Britain as its “friend and sponsor” rather than as a member). Perhaps the key moment in the development of the European Union came in 1950 with the “Schuman declaration”, a proposal by the French foreign minister than French and German coal and steel production be placed under the control of a common “high authority” with other countries invited to join. This led to the creation of the European Coal and Steel Community – Italy, Belgium, the Netherlands and Luxembourg joining with France and Germany.
After that first step, the six went on to conclude in 1957 a treaty establishing the European Economic Community – often called the “Treaty of Rome”. It has broader goals including establishing a customs union and common market among the member states, and a common agricultural policy.
Since then, the Community has undergone considerable changes. Its first “enlargement” brought in Britain, Ireland and Denmark as members in 1973 with Greece, Spain and Portugal joining in the 1980s. The middle of that decade saw a major policy impetus towards creating a “single market” within Europe, relevant amendments to the Treaty being made by the Single European Act.
By the early 1990s, the EEC had been renamed simply the European Community; and at Maastricht in 1992 the Treaty on European Union created the EU, which now exists alongside the EC and as a general overarching concept.
In the mid-1990s, Sweden, Austria and Finland joined, and after further treaty amendments at Amsterdam and Nice, in 2004 came the biggest ever enlargement, with ten new countries including most of the formerly communist countries of Eastern Europe such as Poland, Hungary and the Czech Republic. Bulgaria and Romania joined in 2007.
Since 2004, the EU has been struggling in its attempts to adopt first the Constitutional Treaty, which would have swept away the existing treaties to replace them with one new “Constitution for Europe”; and, since that was rejected by French and Dutch voters in referendums, the Treaty of Lisbon, which would bring in many of the same institutional and other reforms, though it would do so in a more modest manner by amending the existing Treaties.
The Lisbon Treaty was rejected by Irish voters in a referendum in 2008; at the time of writing, it is unclear whether a second Irish referendum, due on 2 October 2009, will be followed by ratification by all member states, and implementation of the Treaty in 2010.
The future If the Lisbon Treaty does come into effect, it will amend the Treaties, renaming them and bringing the whole EU into one organisational structure – abolishing the European Community but transferring all its powers to the new, unified Union. Version of the Treaties as they will be amended if Lisbon comes into force can be found online and in Nigel Foster's book, EU Treaties and Legislation 2009-10 . We will refer to these occasionally to refer to changes of particular interest, or to changes of drafting which shed light on current EU law under the existing Treaties.
The EU today That was the history: if you're preparing to write an essay that involves discussion of the EU's development, you'll need to have absorbed that, and more. But for most purposes, you need to focus on what the EU is and what EU law is now – past amending treaties such as Maastricht, Amsterdam or Nice are of no real importance in understanding EU law, and you needn't know what they did in order to understand EU law. The only enduring sign of their existence that many students will notice is the renumbering of Treaty articles which can sometimes make it difficult to marry up old case-law with the existing Treaties.
The Treaties The EU today is founded on two Treaties:
- the Treaty establishing the European Community, or “TEC” and
- the Treaty on European Union, or “TEU”.
In a sense, the EU is the Treaties: they define the powers and functions of the EC and the EU, which have no legal existence apart from or outside the Treaties. In particular, the TEC creates the EU's Institutions, such as the Commission and the European Parliament, and gives the Community power to make laws in the form of Regulations, Directives and Decisions.
If you follow the link above, you'll see that the TEC, with 314 Article and Protocols, is much more substantial than the TEU, which at only 53 Articles long is relatively short. This reflects the massive continuing importance of the EC, which will be the main focus of this course.
The Treaties represent the fundamental law of the EC and the EU – and students are advised to become as familiar with it as they can. It's amazing how many questions people have about the EU can easily be answered by reference to the text of the Treaties themselves.
We'll mainly be looking at the TEC: it's important if you can to refer to the most recent consolidated version, which reflects all amendments that are in force up to and including those relating to the 2007 accession of Bulgaria and Romania. The latest consolidated version available free online is up to date as of 2006, but will be accurate for most purposes. Nigel Foster's book mentioned above contains an up-to-date versions of the Treaties as well as a great deal of useful EU legislation.
Tasks, activities and competences of the European Community The preamble to the TEC reflects its historic origins – it is the modern version of what was the Treaty of Rome and so refers to the creation of the Community by the original six member states.
But the “High Contracting Parties” in Article 1 now include in legal terms all the member states, including of course the UK. Article 1 simply represents the legal creation of the Community.
Articles 2 and 3 are of special interest.
Article 2 sets out the Community's task: you'll see that the Community exists to
and by doing these things, to promote certain objectives including for instance sustainable economic development, a high level of employment and social protection, equality between men and women (interestingly) as well as sustainable non-inflationary growth and environmental protection.
Article 3 sets out most of the activities the Community is to carry out in order to achieve its task – you might call them areas in which the Community has policies. These include for example
- establish a common market,
- establish an economic and monetary union and
- implement common policies
It's important to consider Articles 2 and 3 together. Although the text of the Treaty refers to the Community's task and activities, EU lawyers typically talk about Articles 2 and 3 as setting out the EC's objectives, or areas of competence. In addition to Articles 2 and 3, Article 4 gives the Community competence in relation to economic and monetary Union and the Euro – competences it does not exercise in relation to the UK of course, unless the UK opts in to the European currency in the future.
These early articles of the TEC are central to understanding the Community. They set out what the Community's remit is – it has no legal power to do anything the Treaty outside its competence as laid down by the Treaty. As Article 5 makes clear,
- a common commercial policy (this means a common policy on world trade)
- an “internal market” characterised by the abolition of obstacles to the free movement of goods, person, services and capital
- a common agricultural policy
- competition policy
- the “approximation” of laws
- environment policy.
The Community shall act within the limits of the powers conferred upon it by this Treaty and of the objectives assigned to it therein.
This principle – that the Community has only those powers given to it by the member states – is sometimes called the principle of conferral.
As a matter of interest, Article 5.2 of the TEU as amended by Lisbon would spell out the principle of conferral arguably more clearly than does the existing TEC:
Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.
Exclusive and shared competence
A question which sometimes arises in EC law is whether, in any area of Community competence,
The TEC does not say expressly which competences are exclusive, and which shared with member states. However it is generally accepted that while there are a few areas of exclusive Community competence, such as
- it is only the Community that can develop policy and make law (in other words, the Community has exclusive competence), or
- the member states can have their own policies and laws alongside those of the Community (in which case, competence is shared between the Community and member states).
Most of the Community's competence is shared with member states. Key areas of shared competences are
- the customs union
- some aspects of competition policy
- the conservation of marine resources (in other words, fish stocks)
- the common commercial policy – in other words, negotiating global trade deals, at least in goods.
Interestingly, Articles 2 to 6 of the Treaty on the Functioning of the European Union (the TEC as amended by Lisbon) would spell out much more clearly which competences are exclusive and which are not.
There are also a few areas, such as tourism and health, in which competence is not strictly shared, but in which the EC can only act to support what member states do.
Subsidiarity and proportionality
The exercise of Community competence is subject to two important principles, set out in Article 5 TEC.
First, the Community must respect the principle of subsidiarity, in other words
- the internal market
- social policy
- the environment
the Community shall take action... only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community.
It is important to bear in mind though that this principle does not apply in areas of exclusive Community competence.
Second, the Community must respect the principle of proportionality. In other words,
Any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty.
Proportionality requires that the EC only act to the extent it is necessary to do so. The principle applies across the board.
When you've learned more about what laws the EC has laid down, you might want to consider whether you think it has always complied with the principles of subsidiarity and proportionality.
Article 7 TEC sets up the institutions through which the Community will carry out its task: they include, crucially for our purposes
We'll look more closely at these Institutions in the next chapter.
- the Commission
- the Council
- the European Parliament, and
- the European Court of Justice.