Text, Cases and Materials on European Union Law

John Tillotson, Nigel Foster

• Publisher: Routledge-Cavendish
• Year: 2013
• ISBN:
  9781135336080
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Text, Cases and Materials on European Union Law provides students with a clear and comprehensive guide to the main constitutional, institutional and substantive features of EU law.

PART ONE

EUROPEAN COMMUNITY AND UNION
AND LAW IN THE UNION

CHAPTER 1
THE EMERGENCE AND DEVELOPMENT OF THE EUROPEAN COMMUNITY AND UNION

INTRODUCTION

Indeed, when considering perspective, the shortcomings are also apparent if the current situation is compared to the aspirations of the founding fathers. Their motivation was not the price of eggs, bacon or steel, but rather a revolution in international behaviour [Nicoll and Salmon, Understanding the European Communities].

Considering that world peace can be safeguarded only by creative efforts commensurate with the dangers that threaten it… Resolved to substitute for age-old rivalries the merging of their essential interests; to create, by establishing an economic community, the basis for a broader and deeper community among peoples long divided by bloody conflicts [Preamble to the European Coal and Steel Community Treaty 1951].

In March 1957, six sovereign Western European States signed a legal document binding themselves to the creation of an economic community. The signing in Rome of the Treaty Establishing the European Economic Community (EEC) by its six original Member States (France, West Germany, Italy, Belgium, the Netherlands and Luxembourg) was an act which represents a unique and practical conjunction of the political, the legal and economic. The aims of ‘the Six’ in coming together in this way were outlined in the Preamble to the Treaty:

Determined to lay the foundations of an ever closer union among the peoples of Europe, Resolved to ensure the economic and social progress of their countries by common action to eliminate the barriers which divide Europe,

Affirming as the essential objective of their efforts the constant improvement of the living and working conditions of their peoples,

Recognizing that the removal of existing obstacles calls for concerted action in order to guarantee steady expansion, balanced trade and fair competition,

Anxious to strengthen the unity of their economies and to ensure their harmonious development by reducing the differences existing between the various regions and the backwardness of the less favoured regions,

Desiring to contribute, by means of a common commercial policy, to the progressive abolition of restrictions on international trade,

Intending to confirm the solidarity which binds Europe and the overseas countries and desiring to ensure the development of their prosperity, in accordance with the principles of the Charter of the United Nations,

Resolved by thus pooling their resources to preserve and strengthen peace and liberty, and calling upon the other peoples of Europe who share their ideal to join in their efforts,

Have decided to create a European Economic Community…

The main, most clearly defined objective in this preliminary statement is that of the maintenance of ‘economic and social progress’. Such progress is to be achieved by ‘common action to eliminate the barriers which divide Europe’. This process of integration must, however, be seen in the context of the first stated aim: ‘…an ever closer union among the peoples of Europe.’ As such, it can be argued that the drafters of the Treaty of Rome can be taken as envisaging, at some future date, a Community in which economic solidarity has merged with political solidarity.

It is clear from the Preamble (the wording of which, but for the deletion of ‘Economic’ in the last line, is the same now as when originally drafted) that the Community is open to new members—there are now 15, and more countries are waiting to join—and that it takes its place within the world economic (and political) order as an upholder of peace, liberty and a free market economy.

The Treaty of Rome therefore indicates that European integration has many dimensions. To be understood properly, it should be appreciated that it may, or must, be viewed from a variety of perspectives: the global, the supranational (or federal), the Member State and last, but certainly not least, from the viewpoint of the individual.

The EEC Treaty, although of tremendous significance, is, however, but one of several treaties underpinning the process of European integration. The first such treaty was the Treaty of Paris 1951 which established the European Coal and Steel Community (ECSC). The Euratom Treaty, the legal basis of the European Atomic Energy Community, was designed at the same time as the Treaty of Rome in 1957. Under the Maastricht Treaty on European Union 1992 (TEU), the European Economic Community was significantly renamed the European Community and the amended EEC Treaty accordingly became the EC Treaty. The 1997 Treaty of Amsterdam (ToA), which came into effect in May 1999, introduced further changes to the TEU and the three Community Treaties. The reform process, considered by some to be too slow and over-cautious, continued with the signing of the Treaty of Nice in early 2001 and, with a view to further strengthening and increased democratisation of an enlarged Union, yet more measures are currently under discussion which will bring about additional treaty amendments, probably in 2005.

The European Union presently comprises three internationally recognised legal persons, the EC, the ECSC and Euratom, making up the first pillar of the Union, together with two further ‘policies and forms of co-operation’: Common Foreign and Security Policy (CFSP) and Police and Judicial Co-operation in Criminal Matters (PJCC) (formerly known as Co-operation in the Fields of Justice and Home Affairs (JHA) under the Maastricht Treaty), which form the second and third pillars (see the diagram on page 17).

In this book, we will concentrate almost exclusively on the EC Treaty, which is not to be regarded merely as an international agreement but, in the words of the European Court of Justice, as ‘the constitutional charter of a Community based on the rule of law’.

DEVELOPMENTS: 1945 TO THE PRESENT DAY

As already indicated, no study of European Community law can be pursued in an effective manner without taking account of the political, social and economic forces with which it is inextricably intertwined. This is the case whether one is dealing with the relationship between the EC and the Member States, with trade regulation within a Single European Market, with environmental issues or with questions of equal pay or pension rights.

Any account of the establishment and continuing development of the EC must be approached along the same interrelated lines. The history of European integration, as one might expect with such an immense undertaking, is one of considerable complexity and neither the theory nor the practice is free from controversy. This opening chapter merely serves to draw attention to the more significant milestones and signposts along the way:

The European Economic Community is an outgrowth of the European movement, a complex composite of political, social and economic forces which have come to the fore in strength since World War II. By the end of the war, national government structures in Continental Europe were weakened to the point of collapse. Europe, devastated and enfeebled by war and the loss of colonies, faced the two emergent giants, the United States and the Soviet Union. Its division by trade barriers underlined its weakness. Determined to build on prewar ideas of a united Europe, on the feeling of the people that there must be no more internecine European wars, and on a variety of special national interests favouring such a movement, a small group of individuals pressed for new institutions to advance unification of Europe. The process of institution-building was marked from the beginning by a pervasive ambiguity. Should new institutions be built so as to preserve the nation state with all its trappings of national loyalties and rivalries, or should there be new transnational institutions which would dilute or supersede the nation state and provide a constitutional foundation for a unified Europe? Today the ambiguity is still with us [Stein, Hay and Waelbroeck, European Community Law in Perspective, 1976].

At the present time, that ‘pervasive ambiguity’ remains, not least in the shape of a recent British Prime Minister. In 1946, another Conservative leader, Winston Churchill, in his famous ‘United States of Europe’ speech in Zurich, spoke of a unified and democratic ‘greater Europe’. However, according to his Private Secretary:

He never for one moment during or after the war contemplated Britain submerging her sovereignty in that of a United States of Europe or losing her national identity… In January 1941, at Ditchley, he went so far as to say that there must be a United States of Europe and that it should be built by the English: if the Russians built it there would be communism and squalor; if the Germans built it there would be tyranny and brute force. On the other hand, I knew he felt that while Britain might be the builder and Britain might live in the house, she would always preserve her liberty of choice and would be the natural, undisputed link with the Americans and the Commonwealth [John Colville, The Fringes of Power, 1985].

In 1947, in order to assist in the reconstruction of post-war Europe amid fears of Soviet expansion westwards in Europe beyond what became known as the Iron Curtain, the then US Secretary of State, George Marshall, initiated a 13 billion dollar Economic Recovery Programme. However, in the words of a State Department memorandum of the time, it was imperative that the recovery of Europe be tied to:

…a European plan which the principal European nations…should work out. Such a plan should be based on a European economic federation on the order of the Belgian-Netherlands-Luxembourg Customs Union. Europe cannot recover from this war and again become independent if her economy continues to be divided into many small watertight compartments as it is today.

The result was the establishment in 1948 of the intergovernmental Organisation for European Economic Co-operation (OEEC) consisting of 18 European (but not Eastern bloc) countries. In the required spirit of ‘continuous and effective self-help and mutual aid’, the OEEC worked with considerable success in the field of trade liberalisation through the gradual removal of quota restrictions, and, through its European Payments Union, it provided a clearing mechanism for multilateral settlement of trading accounts. However, by 1949, speedier progress towards ‘an integration of the Western European economy’ was being urged at an OEEC meeting:

The substance of such integration would be the formation of a single large market within which quantitative restrictions on the movement of goods, monetary barriers to the flow of payments and, eventually, all tariffs are permanently swept aside.

Within a matter of months, these aspirations began to take practical shape. The Schuman Declaration of 9 May 1950 was based on a plan devised by another Frenchman, Jean Monnet. In part, it read:

Europe will not be made all at once, or according to a single plan. It will be built through concrete achievements which first create a de facto solidarity. The coming together of the nations of Europe requires the elimination of the age-old opposition of France and Germany. Any action taken must in the first place concern these two countries.

With this aim in view, the French Government proposes to take action immediately on one limited but decisive point. It proposes to place Franco-German production of coal and steel as a whole under a common higher authority, within the framework of an organisation open to the participation of the other countries of Europe.

The pooling of coal and steel production should immediately provide for the setting up of common foundations for economic development as a first step in the federation of Europe, and will change the destinies of those regions which have long been devoted to the manufacture of munitions of war, of which they have been the most constant victims.

The solidarity in production thus established will make it plain that any war between France and Germany becomes not merely unthinkable, but materially impossible. The setting up of this powerful productive unit, open to all countries willing to take part and bound ultimately to provide all the member countries with the basic elements of industrial production on the same terms, will lay a true foundation for their economic unification.

The European Coal and Steel Community

In 1951, the EUROPEAN COAL AND STEEL COMMUNITY (ECSC) was established under the terms of the Treaty of Paris. Six countries subscribed to the principles of the Schuman Plan: France, West Germany, Italy and the three Benelux countries. It is important to appreciate the following points regarding the ECSC:

1. The primary motive underlying this integrative initiative was political rather than economic.
2. It was seen merely as a first step in the integrative process—a sectoral scheme providing guidelines for a more general form of economic union later.
3. Great weight was attached to the creation of new, European institutions, in particular a supranational High Authority, under the executive control of which the coal and steel production of the Member States was placed.
4. The independence of the non-elected High Authority was balanced by a Council of Ministers (from the Member States), and a Common Assembly (later, Parliament) with the power to dismiss the High Authority.
5. The Community was firmly set in a legal framework with a Court of Justice charged with the duty of ensuring the observance of the law in the interpretation and application of the Treaty.

Represented though they were in the Council of Ministers, the Member States nevertheless relinquished and transferred a large measure of their national sovereignty and therefore control in the coal and steel sectors when they signed the Treaty, in as much as the supranational High Authority possessed the power to take decisions binding on national enterprises requiring the approval of governments.

This direct linking of the institutional control of the High Authority to economic sectors located in different countries involved jettisoning the traditional intergovernmental approach to international co-operation. The basis of this novel strategy is to be found in what was called the functionalist approach to integration: a method which has been described as one ‘which would…overlay political divisions with a spreading web of international activities and agencies, in which and through which the interests and life of all nations would be gradually integrated’: David Mitrany, 1933.

The integrative cornerstone of the ECSC was a Common Market which combined elements of the concept of free movement of goods and a competitive market syst...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Preface
• A Note on Treaty Renumbering
• CONTENTS
• Table of Cases (Chronological)
• Table of Cases (Alphabetical)
• Table of Treaties and Conventions
• Table of Other Legislation
• Table of Abbreviations
• PART ONE EUROPEAN COMMUNITY AND UNION AND LAW IN THE UNION
• PART TWO THE NATURE AND EFFECT OF COMMUNITY LAW
• PART THREE ASPECTS OF COMMUNITY ECONOMIC AND SOCIAL LAW
• PART FOUR REMEDIES AND THE ENFORCEMENT OF COMMUNITY LAW AT COMMUNITY AND NATIONAL LEVELS