EU Law

Gerard Conway

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781317482291
• Edition: 1
• Topic: Droit
• Subtopic: Droit comparé

EU Law provides a comprehensive examination of the law of the European Union in two distinct parts, covering the institutions, structure and processes of the EU as well as the substantive law, as enacted by the Lisbon Treaty. Beginning by examining its origins, Conway locates EU Law within both an international and a domestic legal context. He then explores the evolution of EU Law before providing a clear and accessible account of the structure and internal and international workings of the EU and the special role of the European Court of Justice. The second half of the book explores the Four Freedoms (of Goods, Workers, Capital and Movement) and provides a detailed account of Competition Law and the Economic and Social contexts.

The Routledge Spotlights series brings a modern, contemporary approach to the core curriculum for the LLB and GDL which will help students

• 
  
  

• Move beyond an understanding of the law

• 
  
  

• Refine and develop the key skills of problem-solving, evaluation and critical reasoning which are essential to exam success

• 
  
  

• Discover sources and suggestions for taking your study further

By focusing on recent case law and real-world examples, Routledge Spotlights will help you shed light on the law, understand how it operates in practice and gain a unique appreciation of the contemporary context of the subject.

Companion Website

This book is supported by a range of online resources developed to support your learning, keep you up-to-date and to help you prepare for assessments, including:

• 
  
  

  
  
  

  
  
  

• Key Case Flashcards to aid with recall

• 
  
  

• Quizzes and practice questions

Part 1

Institutional and Constitutional Context

CHAPTERS IN THIS PART:

1. THE ORIGINS OF THE EU AND INTRODUCTION

2. THE EU IN INTERNATIONAL LAW

3. EVOLUTION AND DEVELOPMENT OF THE EU: FROM ROME IN 1957 TO LISBON IN 2009

4. THE INSTITUTIONAL WORKING OF THE EU: INSTITUTIONS AND LAW-MAKING

5. THE SPECIAL ROLE OF THE EUROPEAN COURT OF JUSTICE

6. THE EU AND NATIONAL LAW

7. DETERMINING COMPETENCES IN THE EU

8. FUNDAMENTAL RIGHTS AND CITIZENSHIP

1

Chapter 1
The Origins of the EU and Introduction

This chapter briefly surveys the development of what is now the EU and summarises the content of the book. The original treaties were the European Coal and Steel Community (ECSC) Treaty, the European Atomic Energy Community (EURATOM) Treaty and the European Economic Community (EEC) Treaty. EU competences have expanded beyond the core ideas of a free trade area or common market (now called internal market), including the failure of the Treaty establishing a Constitution and the subsequent passing of the Lisbon Treaty, and the adoption by 25 of the (then) 27 Member States of the ‘Fiscal Compact’ in 2011 and European Stability Mechanism (ESM) Treaty in 2012. Other sections briefly explain the way in which the EU is financed and identify the different central institutions of the EU. Finally, the chapter looks at some theories of integration that seek to offer an overall perspective of the underlying process of integration: what drives integrations, which actors or players in the process have the most influence? Is it the Member States or the central EU institutions that really drive the process forward or is it a combination of both? Can an overall pattern be observed? Finally, the chapter provides a summary of the other chapters in the book.

In this chapter, some of the key terminology of EU studies will be introduced. One of the difficulties of EU law is that its terminology can be somewhat complex and hard to understand; it is important to begin to master the terms commonly used by EU lawyers and EU specialists. The glossary at the end will help you do this.

As You Read …

The key questions that will be answered in this chapter are as follows:

• – What was the motivation behind the creation of what is now the European Union (EU)? Was there a single motivation or several?
• – What does the ‘common market’ or ‘internal market’ mean?
• – The term ‘EU’ is now used, but originally there were three interconnected ‘Communities’ rather than a single ‘Union’. How and why was this so? What is the reason for and significance of the change to ‘EU’?
• – What are the main institutions of the EU?
• – In what way can the EU be described as ‘constitutional’ and how is this significant?
• – What are the main theories seeking to explain the EU overall as a political (and legal) phenomenon?

1.1 The Origin of the European Union and the Three ‘Communities’

The European Union (EU), as we now know it, first began life as three separate legal Communities in the 1950s. First, six countries set up a Community to cooperate in the area of coal and steel. They formed the European Coal and Steel Community (ECSC) in 1951 by adopting the European Coal and Steel Community Treaty (also known as the Treaty of Paris, where it was signed). Then two further ‘Communities’ followed in 1957, one in the area of atomic energy and the other a more general ‘economic Community’, but which used more or less identical institutions and methods.

The reason coal and steel were the first areas of cooperation was because these materials were central to military capacity, and an underlying idea was to ensure economic cooperation instead of rivalry in these areas in the hope that this would translate into peaceful coexistence and the avoidance of the military conflicts such as the First and Second World Wars. The adoption of the European Atomic Energy Community Treaty (EURATOM) followed the same logic, in a field at the time that seemed set to dominate future industry.

Analysing the Law

Why Coal and Steel?

The first area of cooperation was the coal and steel industries. A rationale for this was that these were the industries most important to military strength and thus, cooperation here would reduce the militaristic rivalries of the past.

The third Community and, in practice, the most important because it was more wide-ranging, was the European Economic Community Treaty (or EEC Treaty), also known as the Treaty of Rome. It was signed in Rome in 1957.

Key Learning Point

Scope of the European Economic Community

The Treaty of Rome or EEC Treaty was concerned with economics more generally. It intended to create a common market not just in coal and steel and atomic energy, but in economic goods generally. However, it was not concerned with government spending; this remains to this day for national governments. Nonetheless, the idea of free trade is very broad and can encompass many aspects of the competences of Member States, as we will see further later.

The institutions and legal means for the three Communities were largely the same. The general idea was to establish a common market in economic goods and materials. Two cardinal principles were contained in the project:

1. free movement of economic goods (free movement of workers, free movement of goods, free movement of services and free movement of capital) and
2. undistorted or open competition in a common market (later termed the ‘single market’ and now the ‘internal market’), joining up the economies of the Member States.

Free movement of goods meant that there were to be no taxes and no numerical restrictions (quotas) or equivalent restrictions imposed on goods from one Member State being exported to another Member State. In addition to free movement and undistorted competition, there was to be a Common Customs Union.

Key Learning Point

A Common Customs Union

A Common Customs Union means that a single set of customs rules would apply to goods being imported into any of the Member States from any other countries not in the Communities. For example, the level of customs duties on cars imported into an EU country from the US would be the same, whichever was the EU country.

It would have been simpler for there to be one single Community; that was not the legal path first chosen, although the reasons for this are not very obvious.

Explaining the Law

Three Communities

Although it would have been simpler formally and fully to merge the three communities, in practice, the three functioned as if they were part of the same entity. This was later recognised in 1965 when a ‘Merger Treaty’ was adopted formally joining the three Communities up, although maintaining their legally distinct identities – so the expression ‘the Communities’ continued to be used. Some minor difference existed between the three (e.g. some special provisions applied to EURATOM), but in substance the three constituted a single entity.

However, the three separate treaties still existed and the term ‘Communities’ was used up until the Maastricht Treaty in 1992.¹ Today, there is just a single ‘Union’, although it is still governed by two different treaties, which we will discuss further below.

As noted in the text box above, an important point to remember is that, although the Treaty of Rome or EEC Treaty was more general than the others in setting up a community concerned with all economic goods, this did not mean that all economic matters were now to be dealt with by the EEC and not by the Member States. Very important economic matters remained within the competence of each Member State, i.e. each Member State could adopt its own rules in very important economic matters, including in all manner of personal and corporate taxation, government spending and budgeting, currency and money supply. It was only later, in the 1980s, that some of the Member States decided to adopt a common currency, which replaced the national currencies in the Member States on 1 January 2002.

Explaining the Law

The Founding Member States

The first countries to enter into the new agreement for European cooperation were Belgium, France, West Germany, Italy, Luxembourg and the Netherlands. The United Kingdom was not one of the founding Member States. Winston Churchill, for example, saw the European Communities mainly as a way for continental countries to cooperate and help avoid future wars. Churchill expressed his views in the inter-war period, in response to the proposal of French foreign minister Aristide Briand for a federal Europe,² but even then his later approach can be seen: ‘We have our own dream and our own task. We are with Europe but not of it. We are linked, but not comprised. We are interested and associated, but not absorbed’.³ The United Kingdom first applied to join in the 1960s, but its entry was blocked by President de Gaulle of France. It eventually joined in 1973.

Key Learning Point

How Does the EU Finance Itself?

Since 1971, as a result of legislation adopted by the Council,⁴ the Communities developed a system of their own resourcing. This consisted of various levies automatically paid on certain goods sold in the ...