European Integration Dersi 3. Ünite Özet

Introduction

The European integration has been established with the signing of international treaties by the Member States like any other international organisation, therefore, the EU might be regarded as an international form of co-operation amongst its Member States. On the other hand, however, in its structure, this new legal order resembles the constitutional order of a state in the sense that the structure of the legal and political system of the Union is defined by the Founding Treaties and the amendments to them, and also by secondary legislation, the decisions of the CJEU and the general principles of EU law, to some extent. This legal order or its Founding Treaties are described a “constitutional”, due to the fact that the relationship of the various parts to each other, and to the whole is specified, the common objectives are defined and the rules for making binding legislation and decisions are laid down by the Founding Treaties, which function as a “constitution” in a national state.

The Significance of a Common Legal Order in the Establishment of the European Union (EU)

EU was founded with a view to establish, promote and maintain peace and prosperity in Europe after World War II. The first step of this historic event was the conclusion of the European Coal and Steel Community (ECSC) Treaty on 18 April 1951 in Paris and its entry into force on 23 July 1952. A further development came in 1957 with the Treaties of Rome of 25 March 1957, which created the European Economic Community (EEC) and the European Atomic Energy Community (EURATOM). The Founding states were Belgium, The Federal Republic of Germany, France, Italy, Luxembourg and the Netherlands. On 1 Jan 1973 Denmark, Ireland and the United Kingdom acceded to the Communities. Then, on 1 Jan 1981 Greece and on 1 Jan 1986 Spain and Portugal became members. A further accession took place on 1 Jan1995 with Austria, Sweden and Finland. Most recently, 10 new members (Poland, Hungary, Czechia, Slovenia, Slovakia, Latvia, Lithuania, Estonia, Cyprus and Malta) have joined the Union on 1 May 2004, Romania and Bulgaria have become members on 1 Jan 2007and lastly Croatia joined on 1 July 2013. However, the UK decided to leave the EU with the Brexit referendum in 2016, but both the date and the legal arrangements have become uncertain and the EU has 28 members for the time being.

The Establishment and Development of The EU

Apart from enlargement, which is called “widening”, the powers and competencies of the EU have evolved from merely aiming to establish a “Common Market” between its Member States, where the goods, services, capital and persons move freely without borders, to forming a “Union” whose ultimate aim is to establish an economic and political unification amongst its Member States and their peoples. This transformation, which is called “deepening”, has been brought about by those Treaty amendments such as the Single European Act which was signed in 1986 (1987), the Treaty on EU (Maastricht Treaty) which was signed in 1992 (1993), the Amsterdam Treaty which was signed in 1997 (1999), the Nice Treaty signed in 2001 (2003) and the Lisbon Treaty of 2007 (2009).

Law as a Tool for Integration

The distinctive nature or characteristic of the European integration from a legal perspective is that the integration process is based on the creation of a common legal system for the Member States which would take effect and apply in their own territories, together with their own legal systems, but would be binding, and more often than not, superior to their domestic legal rules. Therefore, the terminology employed to define the EU legal order is “supranational” rather than international. This legal system would be developed by the institutions of the European integration; prepared, enacted and controlled by them.

The interrelations and interactions between the institutions amongst themselves, and with the Member States and their citizens are quite significant as far as the integration process is concerned. In that regard, the EU legal order is described as a supranational legal order.

The first and main element of supranationality relates to the transfer of powers from the Member States to the Union and its institutions. Secondly, all the Member States would have to embrace the common values as laid down by Article 2 of the Treaty on EU. This provision states that “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, nondiscrimination, tolerance, justice, solidarity and equality between women and men prevail.” In that regard, rule of law is a value on which the Union is based and all the Member States should adhere to such principle/value. Consequently, the Member States, in principle at least, should not violate or infringe the law that was enacted by the competencies granted by themselves to the Union and its institutions.

There are three main manifestations of supranationality in the EU legal order. In this supranational legal system, first of all, the decision making power is exercised by the participation of all those Member States, but in more cases than not, a unanimity vote is not required to take binding decisions. Most of the decisions are taken by qualified majority of the Member States in the EU system, which means that one or more Member States may oppose to a decision but it still takes effect, and not only for those who have cast a favourable vote, but also for those opposing States as well. Secondly, those legal rules enacted by the EU institutions take precedence in the national legal systems of the Member States over the conflicting national legal rules. Thirdly, some of the main institutions of the Union that exercise the legislative, executive and judicial functions in the European legal order are of a supranational character as well, since their members, despite being nationals of the Member States, do not represent those Member States or their interests, but instead represent the EU or its citizens, or in the case of the Court of Justice of the EU, the interests of rule of law and justice.

The Distinction Between Institutional and Substantive Law of The EU

When we say that the institutional law of the EU comprises the relations between the institutions, their rights and duties and functioning, the limits of their powers and competencies, the system of checks and balances, the relationship between the legal system they create with the legal system of the Member States, which party has what power, the hierarchy of norms, the role of the individual, his/her rights and duties in this context, this body of law resembles a branch of law in national legal order; i.e. the constitutional law. In fact, the institutional law of the EU is in other words the constitutional law of the EU.

The Institutional Structure of the EU

According to Article 13 of the TEU, “The Union shall have an institutional framework which shall aim to promote its values, advance its objectives, serve its interests, those of its citizens and those of the Member States, and ensure the consistency, effectiveness and continuity of its policies and actions.” The Union’s institutions will be:

• the European Parliament,
• the European Council,
• the Council,
• the European Commission (hereinafter referred to as ‘the Commission’),
• the CJEU of the EU,
• the European Central Bank,
• the Court of Auditors.

Characteristics of The Institutional Structure

These institutions exercise the legislative, executive and judicial functions at the EU level, therefore the institutions exercise powers resembling the sovereign powers in a nation state. The institutional structure of the Union is informed also by the structural principle of the European integration, that is the principle of limited or conferred powers. Each institution acts within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out in them.

The institutional structure of the EU also includes organs, offices and agencies which are established in order to perform certain functions such as the European Ombudsman, Economic and Social Committee, Committee of the Regions, Frontex, OLAF, European Investment Bank, European Environmental Agency etc.

These organs do not have general powers and only deal with the execution of certain functions in the EU institutional structure and therefore are not included in Article 13 of the TEU which enumerates the “institutions” of the EU.

There is a system of checks and balances in the institutional structure, where the institutions are politically, administratively and judicially controlled by each other in the exercise of their functions and performance of their duties. The institutions represent the values and interests of the Member States and the citizens of the Union, as well as the Union itself.

Institutions of the EU

The relationship of the EU institutions amongst themselves and with the Member States, and the citizens of those Member States, with the powers, duties, rights and fields of competence thereof, are regulated by those legal instruments of the Union itself. Moreover, the Founding Treaties constitute the highest source of law in the hierarchy of norms of the European legal order, therefore, all other rules of such legal order must be in conformity with the Founding Treaties. In that sense, the EU has some very similar characteristics with a state and its constitutional order in certain aspects, while maintaining its sui generis nature and structure.

European Parliament

The European Parliament is the representative of “European Peoples” and their interests and political affiliations. The European Parliament has a legitimising and supervisory function as well since it is the only directly elected EU institution by the people. Accordingly, it provides democratic legitimacy and control to the whole of the European integration process. It exercises legislative and budgetary functions together with the Council and has some consultative functions too. Moreover, it exercises the functions of political/democratic control over the other EU institutions.

European Council

According to Article 15 of TEU, “The European Council shall provide the Union with the necessary impetus for its development and shall define the general political directions and priorities thereof. It shall not exercise legislative functions.” The European Council consists of the Heads of State or Government of the Member States, together with its President and the President of the Commission. Since it is the institution comprising the highest political representatives of the Member States, those heads of state represent their own countries’ national interests.

The Council (Council of Ministers)

According to Article 16 of TEU, “The Council shall, jointly with the European Parliament, exercise legislative and budgetary functions. It shall carry out policy-making and coordinating functions as laid down in the Treaties.”

The Council consists of a representative of each Member State at ministerial level, who may commit the government of the State in question and cast its vote. The Council is also the venue for the representation of the national interests of the Member States.

The European Commission

According to Article 17 of the TEU, the Commission promotes the general interest of the Union and takes appropriate initiatives to that end. As the institution that exercises administrative supervision as well as acting as the executive branch of the government, it ensures the proper application of the Treaties, and of measures adopted by the institutions pursuant to them by everyone, overseeing the application of Union law under the control of the CJEU. As the executive branch of the government, it executes the budget and manages the Union programmes. With the exception of the Common Foreign and Security Policy (CFSP), and other cases provided for in the Treaties, it ensures the Union’s external representation.

The Court of Justice of the EU (CJEU)

In the institutional design of the EU, the CJEU acts as the judicial branch. The role of the CJEU is to provide the judicial safeguards necessary to ensure that the law is observed in the interpretation and application of the treaties and generally in all of the activities of the Union. As mentioned above, the European integration is governed by the rule of law. Its very existence is based on the recognition by the Member States, by the EU institutions and by individuals of the binding nature of its rules. Therefore, the CJEU safeguards the legal foundations of the European integration, provides it legitimacy and also fills in the gaps in the written rules.

According to Article 19 of the TEU, it shall ensure the judicial control of the acts and actions of the EU institutions, the Member States and the individuals to a certain extent as regards their compliance with the Treaties and the rules and principles enshrined and regulated in those Treaties.

European Central Bank (ECB)

The ECB is one of the institutions of the EU which, together with the national central banks, constitute the European System of Central Banks (ESCB) and together with those national banks whose currency is the Euro, conducts the monetary policy of the EU. The Member States whose currency is not the euro, and their central banks, retain their powers in monetary matters.

The Governing Council of the ECB comprises the members of the Executive Board of the ECB and the Governors of the national central banks of the Member States whose currency is the euro. The Executive Board comprises the President, the Vice-President and four other members.

The Court of Auditors

The European Court of Auditors is the taxpayers’ representative in the EU structure. Its main task is to examine and check the revenue and expenditure of the EU and to ensure that the acts and actions are dealt with according to law. The Court of Auditors examines the accounts of all revenue and expenditure of the Union, as well as the accounts of all revenue and expenditure of all bodies, offices or agencies set up by the Union in so far as the relevant constituent instrument does not preclude such examination. Its role is to check whether revenue is received and expenditure incurred “in a lawful and regular manner” and the EU’s financial affairs are properly managed. Therefore, it is responsible for checking whether the EU spends its money according to its budgetary rules and regulations and for the purposes for which it is intended. It is in a way the financial conscience of the Union and the watchdog over its money. The Court of Auditors comprises 28 members. The Members are to be chosen from among persons who belong or have belonged in their respective States to external audit bodies or who are especially qualified for this office. Their independence must be beyond doubt.

The Competencies/Powers of the EU: Principles and Categories

The EU is established in order to perform certain activities, certain tasks and attain certain objectives. As provided in Article 1 of the TEU, the Member States established a “Union” amongst themselves, on which they have transferred or conferred some of their competences to attain objectives they have in common.

The Content, Nature and Limits of EU’s Powers

The powers necessary to perform those tasks and attain those objectives have been transferred to the Union by the Member States either at the beginning of the integration process or later with the amending treaties. In those areas that are left to the powers of the Union there are different categories under which the Union can exercise those powers. On the other hand, in areas which are not transferred to the Union, the Member States have exclusive powers, yet they should exercise those powers in such a way not to jeopardise the attainment of the objectives of the Union, that is, according to the principle of sincere cooperation which is laid down in Article 4/3 of the TEU.

In that regard, it needs to be pointed out that certain crucial areas are beyond the realm or reach of EU law and are regulated by the Member States themselves. In that context, Article 4/2 of the TEU indicates the main areas that are beyond the regulatory powers of the EU.

Therefore, the type of state structure of a Member State, for instance whether it is a republic or a monarchy, the governmental system of a Member State, for instance whether it is a parliamentary, presidential or a semipresidential system, whether it is a federation or a unitary state as such are determined by those Member States themselves.

Principles Governing the Powers of the EU

The principles governing the powers of the EU are regulated in Article 5 of the TEU. This provision states that “the limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality.” In that regard, we can conclude that there are 3 principles governing the powers of the EU. The first is the principle of conferral dealing with the question whether the EU has the power to regulate a certain policy area or not. The second and third principles relate to the exercise of the already existing powers of the EU and they are called the principle of subsidiarity and the principle of proportionality.

The Principle of Conferral

The principle of conferral is mentioned in Article 4/1 with reference to Article 5: “in accordance with Article 5, competences not conferred upon the Union in the Treaties remain with the Member States.” Therefore, only the powers transferred by the Member States through the Treaties would belong to the EU and only in those areas, the EU can enact binding legislation and adopt binding legal rules.

Exclusive Power Areas for the EU

According to Article 2/1 of the TFEU, when the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts. These are the areas where the power to regulate have been completely transferred to the EU by the Member States. Since there is such a radical transfer of powers, the Member States who have negotiated and signed those Treaties have preferred to limit the extent of this category of exclusive powers to the absolutely necessary. Consequently, under Article 3/1 of the TFEU, the EU shall have exclusive competence only in the following areas:

• customs union;
• the establishing of the competition rules necessary for the functioning of the internal market;
• monetary policy for the Member States whose currency is the euro;
• the conservation of marine biological resources under the common fisheries policy;
• common commercial policy.

Shared Power Areas between the EU and the Member States

According to Article 2/2 of the TFEU, when the Treaties confer on the EU “a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.” In the shared competence areas, the EU and the Member States can both act and regulate a certain policy matter. However, when the EU regulates a certain issue, the Member States cannot enact national legislation which is contrary to the EU act.

In that context, the Treaty Article gives certain examples of the shared powers of the EU and the Member States and those areas are as follows:

• internal market;
• social policy, for the aspects defined in this Treaty;
• economic, social and territorial cohesion;
• agriculture and fisheries, excluding the conservation of marine biological resources;
• environment;
• consumer protection;
• transport;
• trans-European networks;
• energy;
• area of freedom, security and justice;
• common safety concerns in public health matters, for the aspects defined in this Treaty.

Coordination of Economic and Employment Policies of the Member States

The third category of competence for the EU relates to the coordination of economic and employment policies of the Member States. The terminology employed in this category of power is radically different from the exclusive or shared competence areas. In this category the regulatory and legislative power continues to belong to the Member States themselves to a large extent. The Member States take economic decisions and shape their national employment policies.

EU’s Powers in the Area of CFSP

Article 2/4 of TFEU provides for the fourth category of power for the EU as the CFSP. According to this Article, “the Union shall have competence, in accordance with the provisions of the Treaty on EU, to define and implement a common foreign and security policy, including the progressive framing of a common defence policy.”

Supporting, Coordinating and Supplementing Competence Areas for the EU

According to Article 2/5 of TFEU, in certain areas and under the conditions laid down in the Treaties, the Union has competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas. Article 6 of the TFEU states those areas in an exhaustive manner which fall under this category of competence for the EU. Those are:

• protection and improvement of human health;
• industry;
• culture;
• tourism;
• education, vocational training, youth and sport;
• civil protection;
• administrative cooperation

The Principles of Subsidiarity and Proportionality

Article 5, paragraphs 3 and 4 of the TEU regulates the principles of subsidiarity and proportionality which function as guiding principles to the exercise of the EU’s powers. In other words those principles inform how the EU should exercise those powers.

According to the principle of subsidiarity, decisions must be taken at the level as close to the citizens as possible. Since in a system of multilevel governance such as the EU, the Union level can never be the level closest to the citizen, if the decision is to be taken at this level, it needs to be justified by the scale and efficiency as regards the matter in question. The EU action should satisfy both of the following conditions:

• The action and the extent of the action could not be sufficiently achieved by the Member States acting alone and therefore,
• By reason of the scale and effects of the proposed action, it could be better achieved by the Union.

Sources of EU Law

The sources of EU law can be divided into two as “primary sources” and “secondary sources”. Primary sources comprise firstly, the Founding Treaties establishing the three European Communities, i.e, the Paris Treaty establishing the European Coal and Steel Community, the Rome Treaty establishing the European Atomic Energy Community and the Rome Treaty establishing the European Economic Community. Amongst those Treaties only the Paris Treaty expired in July 2002 since it had a duration period of 50 years. All the other treaties which supplemented and amended those Founding Treaties such as the Single European Act, the Maastricht Treaty, the Amsterdam Treaty, the Nice Treaty and the Lisbon Treaty, as well as the accession treaties for the membership of new countries are amongst the primary sources as well. In addition to that, all the protocols, declarations and annexes to those treaties are considered also as primary sources. Moreover, the EU Charter of Fundamental Rights, which has the same legal value as the Treaties, as stated by Article 6/1 of the TEU, is yet another piece of primary source of EU legal order’s primary source.

Primary Sources: Founding Treaties, Constitutional Treaties

They are the constitutional treaties since they form the organisational law of the EU. They constitute the basis of the EU legal order and the legal basis of all the EU’s secondary legislation. They are not directly applicable as they necessitate ratification, which is a legal act performed in the national legal orders of the Member States. Certain provisions of the Treaties can be directly effective if they are sufficiently clear and precise and unconditional.

Secondary Sources of EU Legal Order

By secondary sources of EU law we understand the law making acts of the EU institutions which result in a body of law generated by the EU itself in its autonomous capacity. We regard those sources as secondary because their authority is derived from the provisions of the Founding Treaties. As stated in Article 288 of the TFEU, “in order to exercise the Union’s competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions.” These are the main secondary legislation as regulated by the Treaties.

As Article 288 states:

• “A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.
• A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.
• A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them.
• Recommendations and opinions shall have no binding force”

Regulations

A regulation is a general legislative instrument which is binding in its entirety throughout the EU and which is directly applicable within the legal orders of the Member States without the need of intervention on the part of the national legislative bodies. Regulations have a general scope and are binding in their entirety and are directly applicable in all Member States. They are generally binding. It follows that, apart from their applicability without the intermediary of the state, regulations are meant to be an instrument of uniformity within the EU.

Regulations are directly applicable in all Member States and come into force solely by virtue of their publication in the Official Journal of the EU, as from the date specified in them. They become binding on the date specified or in the absence thereof, on the twentieth day following their publication.

Decisions

A decision of an EU institution is binding in its entirety upon those to whom it is addressed. It may be addressed to one or more Member States or to a natural or legal person. It differs from a regulation which is formulated in an abstract manner.

Non-Binding Acts: Recommendations and Opinions

Recommendations and opinions are listed in Article 288 of the TFEU, but they cannot be considered as a constituting part of the legislation of the EU in strict terms, as they are not legally binding, however they are still amongst the sources of EU law.

Non-Treaty Acts

Various types of acts not listed in the Treaties are being adopted by the institutions of the EU, such as communications, memoranda, programmes, guidelines, resolutions, White Papers, Green Papers etc.

International Agreements as Sources of EU Law

The EU has international legal personality and therefore can conclude international agreements with third countries or other international organisations. As well as issuing secondary legislation which are binding on the Member States and their citizens in areas within their competence, the EU has the power to sign international agreements with third states and other international organisations which would also be binding on the Member States.

General Principles of EU Law

The general principles of EU law, which are developed by the CJEU, form yet another source of EU law. No legal order can be composed solely of written rules. Written rules are not capable of providing an answer to those complex and slightly differing details of each and every case. Yet, judges cannot refrain from deciding cases which are within their jurisdiction by claiming that there are no specific written rules regarding that particular case, as this would constitute a denial of justice. Therefore, in every legal system there is an ever present need to interpret and fill out the gaps in written law with the help of certain unwritten general principles. Moreover, applying only the wording, but not the spirit of written law might cause unfair results in cases; written law should be completed and tested to comply by some overriding general principles of law which would guarantee a certain degree of fairness and equity.

Distinctive Features and the Nature of EU Legal Order and Relations Between the EU Legal Order and National Legal Orders

As the CJEU stated in Van Gend en Loos Case, the EU constitutes “a new legal order”, which is based on international law and contains features of national laws of its Member States and still exhibits fundamentally different qualities from both. This feature of EU law is particularly apparent from the mechanism designed for the implementation and enforcement of such law and the rights and the role conferred on the individuals thereof, in the national legal orders of its Member States.

The Basic Characteristics of the EU Legal Order

The Founding Treaties consist of the substantive aspects of the integration, together with the legal basis of the methods and mechanisms for the use of the competence transferred on EU institutions in order to take legislative, executive and judicial action to achieve those mainly economic, substantive objectives. However, the task of implementing the body of law thus created and the individuals’ rights which derive thereof, where mainly belong to the national authorities and to be implemented and enforced in the national legal orders according to the domestic rules and procedures of each Member State.

Relations between EU Law and National Legal Orders

EU law-national law relations consist of two different aspects. On the one hand, these two different legal orders cooperate in the realization of the objectives of integration. Therefore, national legislative, executive and judicial branches and the rules and procedures of the national legal order assist the EU for the achievement of its tasks and aims; enforcement of EU law through national law is the main example of such cooperation.