This introductory chapter assesses whether there is a European constitution. When examined in the light of the broader historical tradition, the European Union has a constitution. And this view firmly corresponds to the self-understanding of the European legal order. The ‘real’ problem of the European Union is not whether there is a European constitution, but rather that there is ‘too much constitutional law’; the European Treaties alone contain 413 articles. Length is unfortunately not the only problem of the European constitution, for unlike more mature legal orders, the European constitutional order still struggles with its ‘vocabulary’. The semantic confusions are partly the result of the constant legal revolutions within the European Union. This book then aims to reflect the judicial and legislative practice of the Union as at October 31, 2020. It provides a guide through the most important theories and realities of the European Union law.
Chapter
This introductory chapter provides an overview of the European Union, which is based on two treaties: the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). The TEU contains the general provisions defining the EU, while the TFEU contains the specific provisions with regard to the EU institutions and policies. The EU Treaties are treaties whose substance is mainly made up from institutional provisions that are to provide the framework for subsequent secondary law. The policy areas in which the EU can act are thereby set out in Parts III and V of the TFEU. In order to legislate within one of these policy areas, the Union must have a legislative competence. These competences will constitute the principal legislative fountain for a particular part of European Union law. This book then analyses the creation, enforcement, and substance of European law.
Chapter
This chapter traces the origins and development of the European Union (EU) and EU law. The European Economic Community (EEC) was created by the European Community Treaty (the EEC Treaty or Treaty of Rome), signed by the six original Member States in 1957. The Treaty on European Union 1992 created the EU, incorporating the EEC, together with two new policy areas, Co-operation on Justice and Home Affairs and Common Foreign and Security Policy. The Treaty of Lisbon amended the two founding Treaties and replaced all references to the ‘European Community’ with ‘European Union’. Together, the two amended Treaties (the Treaty on the Functioning of the European Union (TFEU) and the Treaty on European Union) constitute the Treaties on which the EU is founded. This chapter also looks at the UK’s withdrawal from the EU under Article 50 (Brexit).
Chapter
Matthew J. Homewood and Clare Smith
This chapter traces the origins and development of the European Union (EU) and EU law. The European Economic Community (EEC) was created by the European Community Treaty (the EEC Treaty or Treaty of Rome), signed by the six original Member States in 1957. The Treaty on European Union 1992 created the EU, incorporating the EEC, together with two new policy areas, Co-operation on Justice and Home Affairs and Common Foreign and Security Policy. The Treaty of Lisbon amended the two founding Treaties and replaced all references to the ‘European Community’ with ‘European Union’. Together, the two amended Treaties (the Treaty on the Functioning of the European Union (TFEU) and the Treaty on European Union) constitute the Treaties on which the EU is founded. This chapter also looks at the UK’s withdrawal from the EU under Article 50 TEU (Brexit).
Chapter
All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. There are seven principal institutions listed in Article 13 of the Treaty on European Union entrusted with carrying out the tasks of the Union: the European Parliament, the European Council, the Council, the Commission, the Court of Justice of the European Union, the European Central Bank, and the Court of Auditors. This chapter considers their respective roles and the way in which they interrelate, and also looks at other important institutions such as the Economic and Social Committee, the Committee of the Regions, and agencies. The UK version contains a further section analysing the relation between the UK and the institutions post-Brexit.
Chapter
All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing students with a stand-alone resource. There are seven principal institutions listed in Article 13 of the Treaty on European Union entrusted with carrying out the tasks of the Union: the European Parliament, the European Council, the Council, the Commission, the Court of Justice of the European Union, the European Central Bank, and the Court of Auditors. This chapter considers their respective roles and the way in which they interrelate, and also looks at other important institutions such as the Economic and Social Committee, the Committee of the Regions, and agencies. The UK version contains a further section analysing the relation between the UK and the institutions post-Brexit.
Chapter
4. Governmental Structure
Union Institutions II
This chapter focuses on the internal composition, internal powers, and internal procedures of the European Commission, the Court of Justice of the European Union (CJEU), the European Central Bank (ECB), and the Court of Auditors. The Commission constituted the centre of the European Coal and Steel Community (ECSC), where it was ‘to ensure that the objectives set out in [that] Treaty [were] attained’. In guiding the European Union, it acts (together with the European Council) like the Union's ‘government’. The CJEU constitutes the judicial branch of the European Union. However, it is not the only one to interpret and apply European law. From the very beginning, the European legal order intended to recruit national courts in the interpretation and application of European law. Meanwhile, the Treaty on the Functioning of the European Union (TFEU) defines the ‘primary objective’ of the European Central Bank as the maintenance of price stability. Finally, the Court of Auditors is staffed by accountants, whose primary task is to ‘carry out the Union's audit’.
Chapter
4. Governmental Structure
Union Institutions II
This chapter focuses on the internal composition, internal powers, and internal procedures of the European Commission, the Court of Justice of the European Union (CJEU), the European Central Bank (ECB), and the Court of Auditors. The Commission constituted the centre of the European Coal and Steel Community (ECSC), where it was ‘to ensure that the objectives set out in [that] Treaty [were] attained’. In guiding the European Union, it acts (together with the European Council) like the Union’s ‘government’. The CJEU constitutes the judicial branch of the European Union. However, it is not the only one to interpret and apply European law. From the very beginning, the European legal order intended to recruit national courts in the interpretation and application of European law. Meanwhile, the Treaty on the Functioning of the European Union (TFEU) defines the ‘primary objective’ of the European Central Bank as the maintenance of price stability. Finally, the Court of Auditors is staffed by accountants, whose primary task is to ‘carry out the Union’s audit’.
Chapter
This chapter examines the regional organizations with jurisdiction over human rights in Europe, focusing on the Council of Europe, and describes relevant work of the European Union and the Organization for Security and Co-operation in Europe. It highlights the success of the Council of Europe in developing a system which ensures the protection of basic human rights through a judicial mechanism, and concludes that the European Convention on Human Rights has matured into the most sophisticated and effective human rights treaty in the world.
Chapter
This chapter examines the regional organizations with jurisdiction over human rights in Europe, focusing on the Council of Europe, and describes relevant work of the European Union and the Organization for Security and Co-operation in Europe. It highlights the success of the Council of Europe in developing a system which ensures the protection of basic human rights through a judicial mechanism and concludes that the European Convention on Human Rights has matured into the most sophisticated and effective human rights treaty in the world.
Chapter
This concluding chapter explores the European Union’s potential future evolution alongside two dimensions. A horizontal dimension focuses on the widening or narrowing of its membership, while a vertical dimension explores the deepening or flattening of its level of integration. Every change in the membership of the Union represents a fundamental change in its material constitution. This change can occur either through European enlargements or national withdrawals. Brexit in 2020 was the first instance in which a Member State withdrew from the European Union. Ultimately, the possibility of future reductions in EU membership cannot be categorically excluded; yet the political appetite seems minimal. And a national exit from the European Union will also be much harder for those States within the Union that have constitutionally committed themselves to European integration. The chapter then looks at the European Commission’s ‘White Paper on the Future of Europe’, which presents five scenarios offering ‘a series of glimpses into the potential state of the Union by 2025’.
Chapter
This chapter assesses the ‘primacy’ of European law. When the European Union was born, the European Treaties did not expressly mention the primacy of European law. Did this mean that primacy was a matter to be determined by each national legal order; or was there a European Union doctrine of primacy? There are two perspectives on the primacy question. According to the European perspective, all Union law prevails over all national law. This ‘absolute’ view is not, however, shared by the Member States. According to the national perspective, the primacy of European law is relative. The chapter then considers the two national challenges to the absolute primacy of European law. The first is the national claim asserting the relative primacy of European law in the context of fundamental human rights. The second is the contested question of who is the ultimate arbiter of the scope of the European Union's competences.
Chapter
After the ‘Brexit’ referendum the UK left the European Union (EU) at the end of January 2020. Whilst the UK is now no longer a Member State of the EU, the UK’s membership had a significant influence on the English legal system. This chapter looks at the impact of EU membership on the English legal system including its effect on law-making institutions such as Parliament. It examines the consequences of the UK’s recent withdrawal, including the effect of important legislation such as the EU Withdrawal Act 2018. The chapter offers very useful background reading on how EU law is made, interpreted, and applied in Member States. The EU is administered by several supranational institutions including the European Council, the Council of the European Union, the European Commission, the European Parliament, and the Court of Justice of the European Union (CJEU). The main sources of EU law are: primary legislation, i.e. the treaties; secondary legislation, including regulations and directives; and the case law of the CJEU. Where EU law and national law conflict, EU law is supreme. EU law may have direct effect, i.e. be enforceable by individuals before national courts, or indirect effect, where national courts are obliged to interpret national legislation and case law, so far as possible to conform with a relevant directive. State liability for breaches of EU law means that Member States are obliged to compensate individuals for consequent loss or damage.
Chapter
9. Executive Powers
Competences and Procedures
This chapter studies three executive powers in the context of the European Union. It begins with an examination of the political power to act as government. The ‘steering’ power of high politics belongs to two EU institutions: the European Council and the Commission. The Union ‘government’ is thus based on a ‘dual executive’. The chapter then moves to an analysis of the (delegated) legislative powers of the Union executive. The central provisions here are Articles 290 and 291 TFEU. The European legal order has allowed for wide delegations of power to the Commission; while nonetheless insisting on substantive and procedural safeguards to protect federalism and democracy. Finally, the chapter looks at the (administrative) enforcement powers of the Union. Based on the idea of ‘executive federalism’, the power to apply and enforce European law is here divided between the Union and the Member States. The Union can—exceptionally—execute its own law; yet, as a rule, it is the Member States that primarily execute Union law.
Chapter
9. Executive Powers
Competences and Procedures
This chapter studies three executive powers in the context of the European Union. It begins with an examination of the political power to act as government. The ‘steering’ power of high politics belongs to two EU institutions: the European Council and the Commission. The Union ‘government’ is thus based on a ‘dual executive’. The chapter then moves to an analysis of the (delegated) legislative powers of the Union executive. The central provisions here are Articles 290 and 291 TFEU. The European legal order has allowed for wide delegations of power to the Commission; while nonetheless insisting on substantive and procedural safeguards to protect federalism and democracy. Finally, the chapter looks at the (administrative) enforcement powers of the Union. Based on the idea of ‘executive federalism’, the power to apply and enforce European law is here divided between the Union and the Member States. The Union can—exceptionally—execute its own law; yet, as a rule, it is the Member States that primarily execute Union law.
Chapter
Paul Craig
This chapter traces the development of what is now the EU. It first describes the origins of ideas of European unity. It then discusses the various treaties that paved the way towards broader European integration. These include the European Coal and Steel Community Treaty of 1951,the Single European Act 1986, the Treaty on European Union (TEU) of 1992, and the Lisbon Treaty of 2009. Next, the chapter turns to the impact of the global financial crisis on the EU and considers several theories of integration.
Chapter
This chapter describes the direct enforcement of European law in the European Courts. The judicial competences of the European Courts are enumerated in the section of the Treaty on the Functioning of the European Union (TFEU) dealing with the Court of Justice of the European Union. The chapter discusses four classes of judicial actions. The first class is typically labelled an ‘enforcement action’ in the strict sense of the term. This action is set out in Articles 258 and 259 TFEU and concerns the failure of a Member State to act in accordance with European law. The three remaining actions ‘enforce’ the European Treaties against the EU itself. These actions can be brought for a failure to act, for judicial review, and for damages.
Chapter
Alisdair A. Gillespie and Siobhan Weare
This chapter discusses international sources of law. Conventions and treaties are the primary sources of international law. International law also relies on custom, that is to say informal rules that have been commonly agreed over a period of time. Resolving disputes in international law is very different to resolving domestic disputes, including the fact that in some instances, there is no court that can hear a challenge. The United Nations, particularly its Security Council, has the primary role in upholding international law, meaning that it is often political rather than judicial resolution. In 1972, the United Kingdom joined the (then) European Economic Community (EEC). As part of that process, it agreed to shared sovereignty, meaning that in some areas, European law would take precedence. The United Kingdom has now left the European Union but, as will be seen, its laws will remain an important source of English law for some time.
Chapter
This chapter introduces some of the key ideas that will be encountered in the rest of the book, such as what is required for a contract. It touches upon the everyday role of contract, and that, although the book is heavily concerned with case law, contract disputes are often resolved without resort to the courts. It also introduces the idea of the evolution of contract law with the changing nature of society: the limitations placed on the use of an idea, such as ‘freedom of contract’, through recognition of the impact of inequality of bargaining power. Additionally, it alerts the reader to the impact of the EU and Brexit.
Chapter
The Concentrate Questions and Answers series offer the best preparation for tackling exam questions. Each book includes typical questions, bullet-pointed answer plans and suggested answers, author commentary and illustrative diagrams and flowcharts. This chapter presents sample exam questions along with examiner’s tips, answer plans, and suggested answers about the origins, institutions, and development of the European Union and its legislative processes. Key debates noted are the questions raised by the changes brought about by the Lisbon Treaty, and concerns raised by Member States about the EU assuming too many competences. Sample exam questions cover topics such as the concept of European integration and the motivations behind it, reform of the EU, the powers of the Court of Justice of the European Union and its impact, and analysis of the 2007 Lisbon Treaty and the abandoned Constitutional Treaty which it effectively replaced.
