european law

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Treaty on European Union

The Treaty on European Union (‘TEU’) finds its origins in the Treaty of Maastricht, which came into effect in 1993. Almost a decade previous, however, steps had already been taken to produce a draft treaty[1] which proposed a ‘fully federal Europe with common foreign, macro-economic and trade policies and a devolved system of central institutions.’[2] Damian Chalmers et. al. identify a number of political influences driving this movement. Firstly, it is suggested that recession in the 1980s prompted national governments to consider further European integration as a potential solution to reinvigorating economies. Furthermore, lobby groups had congregated in Brussels since the 1970s which were ‘increasingly rallying for European solutions.’[3] Meanwhile, the European Parliament had become more assertive under Chairman Alfiero Spinelli, and indeed it was this institution which produced the aforementioned draft.[4]

In 1989 the European Council produced a bulletin which suggested a three-stage approach to achieving the goal of monetary union within the European Union (‘EU’), and confirming that the first stage would begin in July 1990.[5] It was believed by some, however, that monetary union would ‘not be sustainable without further political integration’[6] which became the subject of a separate conference culminating in the TEU. Article 1 of the TEU, which established the European Union itself[7] states ‘this treaty marks a new stage in the process of creating an ever closer union among the people of Europe.’[8] The aims of the TEU therefore were twofold. The ultimate goal was ostensibly the achievement of monetary union; however, a concurrent aim as set out in Article 1 was the achievement of greater political union, which was viewed as a necessary corollary to achieving functional monetary union.

The scope of the TEU as it reads today is vast and a full exploration of its content is impractical here, however, some core elements can be identified. As well as establishing the EU itself, Title I contains Articles which set out the central values of the EU, discusses the concept of conferral of competences upon the EU, and significantly recognises the Charter of Fundamental Rights of the European Union as having the same legal value as the treaties.[9] Title II sets out the democratic principles of the EU such as the active contribution of national parliaments and representation of citizens in the European Parliament, whilst Title III sets out the institutional framework of the various organs of the EU. Title IV regards the principle of enhanced cooperation between Member States, whilst Title V contains general provisions relating to the EU’s common foreign and security policies. Finally of note is the establishment of what were the three pillars of the EU consisting of the European Community, Common Foreign and Social Policy, and Justice and Home Affairs (it should be remembered, however, that the three-pillar system was not maintain after the Treaty of Lisbon). These demarcations received significant criticism however, and as early as 1993 an editorial in the European Law Review warned of ‘a real risk not just of a two-speed Europe, but a multi-speed Europe’[10] and further commented that ‘some parts of the European Union are susceptible to the judicial control of the Court of Justice… while other parts are not.’[11]

The Treaty on the Functioning of the European Union

If the TEU provides the broad legal basis for the EU and its institutions, the Treaty on the Functioning of the European Union[12] (‘TFEU’) ‘sets out the explicit competences of the Union and… detailed procedures to be used.’[13] The treaty is again founded in older legislation, the Treaty of Rome from 1957, however, it was produced in its current recognisable form as a result of the Treaty of Lisbon. In 2004 the European Council agreed to an EU Constitution; however, this failed to be ratified by France and the Netherlands. The backdrop to the failed constitutional treaty was threefold, as postulated by Damian Chalmers.[14] Firstly, a number of Member States wished to see some form of EU Bill of Rights – what would later become the Charter of Fundamental Rights. Secondly, there was a general desire for institutional reform across the EU so it would ‘function more efficiently and accommodate new States who might join the union.’[15] Indeed, this need would prove to be justified when the EU saw significant enlargement in 2004.

As the title suggests, the TFEU is aimed at providing the detailed legal framework under which the EU operates. For example, Part One sets out the specific areas of EU competence; Part Two contains provisions for EU citizenship; Part Three provides the principle of free movement of goods and provisions relating to the internal market etc. Further, Part Six sets out the process by which the EU makes new legislation in areas of competence, further confirming the TFEU’s intention as an operational treaty. However, whilst based on a previous treaty, the TFEU was substantially created, or at least re-created, by the Treaty of Lisbon. As Paul Craig advocates, the latter treaty had only two weeks from when it appeared in October 2007 to when Member States were due to sign. Craig argues that ‘the justification for the accelerated process was that the Treaty of Lisbon was indeed the same in most important respect as the EU Constitution’[16] and it is argued here that the aim of the Treaty of Lisbon was to implement the failed Constitutional Treaty in all but name.

As an exposition of the general legal system of the EU, it is near impossible to identify any particular provision of TFEU as being more significant than others. That being said, Article 288 is of particular relevance to ordinary citizens in any Member State. By virtue of this provision, Regulations of the EU are binding on, and directly applicable in, Member States. Furthermore, Directives can have direct effect in particular circumstances.[17] This Article, therefore, provides the basis upon which citizens of the EU can rely on European law in their national courts. Rather than being a distant and abstract international organisation, the EU confers rights and protections directly onto citizens, who can rely on the same within the borders of their home countries. With some 31% of EU legislation being in the form of Regulations,[18] the significance of Article 288 is only too clear for EU- supporters and sceptics alike.

Bibliography

Consolidated version of the Treaty on European Union [2008] OJ C115/13

Consolidated Version of the Treaty on the Functioning of the European Union [2008] OJ C115/47

Case 41/74 Van Duyn v Home Office [1974] ECR 1337

Bogdandy, A., et. al., ‘Legal Instruments in European Union Law and their Reform: a Systematic Approach on an Empirical Basis’ (2004) 23(1) Yearbook of European Law 91

Chalmers, D., et. al., European Union Law (2nd ed., Cambridge University Press 2010)

Craig, P., ‘The Treaty of Lisbon, process, architecture and substance’, (2008) 33(2) European Law Review 137

Editorial, ‘The Treaty on European Union enters into force’, (1993) 18(6) European Law Review 473

European Council, Bulletin of the European Communities, No. 6-1989

European Parliament, ‘Draft Treaty Establishing the European Union’ [1984] Official Journal C77/33


[1] European Parliament, ‘Draft Treaty Establishing the European Union’ [1984] Official Journal C77/33

[2] Damian Chalmers et. al., European Union Law (2nd ed., Cambridge University Press 2010) p. 19

[3] Ibid.

[4] Ibid.

[5] European Council, Bulletin of the European Communities, No. 6-1989, 1.1.11

[6] Damian Chalmers et. al., op. cit., p. 23

[7] The EU had previously been referred to as the European Economic Community

[8] Consolidated version of the Treaty on European Union [2008] OJ C115/13, Art. 1

[9] Consolidated version of the Treaty on European Union, op. cit., Art. 6

[10] Editorial, ‘The Treaty on European Union enters into force’, (1993) 18(6) European Law Review 473

[11] Ibid.

[12] Consolidated Version of the Treaty on the Functioning of the European Union [2008] OJ C115/47

[13] Damian Chalmers et. al., op. cit., p. 40

[14] Ibid., pp. 34 - 35

[15] Ibid.

[16] Paul Craig, ‘The Treaty of Lisbon, process, architecture and substance’, (2008) 33(2) European Law Review 139

[17] Case 41/74 Van Duyn v Home Office [1974] ECR 1337

[18] Armin Bogdandy et. al., ‘Legal Instruments in European Union Law and their Reform: a Systematic Approach on an Empirical Basis’ (2004) 23(1) Yearbook of European Law 97