EUROPEAN UNION LAW
W.B. Fisch, Fall 2007
Assignment #2
A. The Treaty Framework of the European Community and the European Union
ˇ How do the Community and the Union treaties relate to one another?
o what are the 3 “pillars” of the European Union?
o what are the 3 “communities” making up the Community?
o is there an overarching interpretive principle, applicable to all of the “constitutive” treaties? See Fédération Charbonniere, n. 2 p. 30: often called “teleological interpretation”
ˇ What other treaties provide law for the Community?
o Accession treaties (between new and existing MS, EU itself not a party!) – TEU art 49
o treaties made pursuant to direct authorization in foundation treaties
o treaties among MS that relate to the subject-matter of EU competence
ˇ How is the EC treaty amended?
o TEU art. 48 (ex N) – applies to all foundation treaties of the EU
o procedure
§ submission of proposals by MS or Commission to Council
§ Council, if it chooses to proceed, convenes Inter-governmental Conference
§ IGC decides on final proposals
§ unanimous MS ratification required
§ TEU itself (art. N(2)) called for 1996 IGC resulting in Treaty of Amsterdam, which in turn called for 2000 IGC resulting in Treaty of Nice)
ˇ Non-treaty sources of EU law
o legislation (regulations, directives, decisions)
o treaties to which the EU is a party
o general principles of law – where do they come from ?
o decisions of the ECJ?
B. The Institutions
1. The Council (http://ue.eu.int/showPage.asp?id=242&lang=en&mode=g )
ˇ How is the Council constituted?
ˇ How is the Council Presidency determined? What are the powers of the Presidency?
ˇ What is COREPER? What authority does it have?
o Art. 207: preparation of work of Council, any tasks assigned by Council
o Commission v. Council, C-25/94 (1996), n. 1 p. 42: what is the holding here?
§ ECJ can only review certain acts of the other Treaty institutions (Council: regulations, directives, decisions)
§ Did the Council adopt a reviewable decision, or simply ratify a decision of COREPER?
§ What is the Commission complaining about?
ˇ What are the voting requirements for a valid Council action? Three modes
o Majority of membership: default position (EC Art. 205(1))
o Qualified majority: votes of MS weighted more or less by population (EC art. 205(2))
§ Nice (current):
ˇ
from 3 to 29 votes, with categories roughly corresponding to
population but equating
ˇ 169/237 by majority of MS, or 169/237 cast by 2/3 of the MS where no proposal of the Commission is required – 3 of 4 largest MS can block!
ˇ
enlargement required to maintain the same
threshold: 258/345 by majority, or 258/345 by 2/3 of the MS if no proposal from
Commission – 3 of 4 largest, or
ˇ 62% of population if any MS demands it
§ Constitution Art. I-25 (Draft I-24 in 2004 Supp.): two possible modes of Qualified Majority:
ˇ 55% majority of MS (at least 15) representing 65%) of population (but blocking majority must consist of at least 4 MS)
ˇ 72% of MS representing 65% of population (where Council acts without proposal from Commission or European Foreign Minister)
o Unanimity
§ What if a member is present but abstains?
§ What if a member fails to attend?
o Treaty provisions specify the required mode for most grants of authority
ˇ Does the Council follow informal voting rules not specified in the Treaty?
o “
o “Joanina Compromise” (1995)
ˇ What is the “European Council”? What are its functions? Is it a Treaty institution? How does it relate to the Council of Ministers?