Part I
Constitutional Foundations
Introduction
The idea of European integration is as old as the European idea of the sovereign State. Yet the spectacular rise of the latter overshadowed the idea of European union for centuries. Within the twentieth century, two ruinous world wars and the social forces of globalisation have however increasingly discredited the idea of the sovereign State. The decline of the nation State has found expression in the spread of inter-State cooperation; and the rise of international cooperation has itself caused a fundamental transformation in the substance and structure of international law.
The various efforts at European cooperation after the Second World War formed part of this general transition from an international law of coexistence to an international law of cooperation. ‘Europe was beginning to get organised.’ This development began with three international organisations. First: the Organisation for European Economic Cooperation (1948), which had been created after the Second World War by 16 European States to administer the international aid offered by the United States for European reconstruction. Second, the Western European Union (1948, 1954) that established a security alliance to prevent another war in Europe. Third, the Council of Europe (1949), which had inter alia been founded to protect human rights and fundamental freedoms in Europe. None of these grand international organisations was to lead to the European Union. The birth of the latter was to take place in a much humbler sector: coal and steel.
The 1951 Treaty of Paris set up the European Coal and Steel Community (ECSC). Its original members were six European States: Belgium, France, Germany, Italy, Luxembourg and the Netherlands. This first Community had been created to integrate one industrial sector; and the very concept of integration indicated the wish of the contracting States ‘to break with the ordinary forms of international treaties and organisations’.
The Treaty of Paris led to the 1957 Treaties of Rome, which created two additional Communities: the European Atomic Energy Community and the European (Economic) Community. The ‘three Communities’ were partly ‘merged’ in 1967, but continued to exist in relative independence. A major organisational leap was taken in 1993, when the three Communities were themselves integrated into the European Union. For a decade, this European Union was under constant constitutional construction. And, in an attempt to prepare the Union for the twenty-first century, a European Convention was charged to draft a Constitutional Treaty in 2001. The latter failed; and it took almost another decade to rescue the reform as the 2007 Reform (Lisbon) Treaty. This Lisbon Treaty has replaced the ‘old’ European Union with the ‘new’ European Union.
This chapter surveys the historical evolution of the European Union in four sections. Section 1 starts with the humble origins of the Union: the European Coal and Steel Community (ECSC). While limited in its scope, the ECSC introduced a supranational formula that was to become the trademark of the European Economic Community (EEC). The EEC will be analysed in section 2, while section 3 investigates the development of the (old) European Union founded through the Treaty of Maastricht. Section 4 reviews the reform efforts of the last decade, and analyses the structure of the – substantively – new European Union as established by the Treaty of Lisbon. Concentrating on the constitutional evolution of the European Union, this chapter will not present its geographic development.
Cases
Legislation
EU Regulations
International Agreements
Agreement between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders signed at Schengen, Luxembourg on 14 June 1985 (Schengen Agreement), [2000] OJ L 239/13
Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders signed at Schengen, Luxembourg on 19 June 1990, [2000] OJ L 239/19
Figures
Extra Materials
Useful Videos
Useful websites
EU Treaties
Treaties currently in force
Lisbon Treaty (EUROPA)
European Commission – The EU timeline
BBC – A timeline of the EU
CVCE – From the Schuman Plan to the Paris Treaty (1950–1952)
CVCE – The origins of the Rome Treaties (1955–1958)
CVCE – The treaties of the European Union: texts, preparatory work and personal accounts
Further Reading
Books
M. Andenas and J. Usher, The Treaty of Nice and Beyond: Enlargement and Constitutional Reform (Hart, 2003)
P. Craig, The Lisbon Treaty: Law, Politics, and Treaty Reform (Oxford University Press, 2010)
P. Craig and G. de Búrca, The Evolution of EU Law (Oxford University Press, 2021)
P. D. Dinan, Europe Recast: A History of European Union (Palgrave, 2004)
J. Gillingham, European Integration, 1950–2003: Superstate or New Market Economy (Cambridge University Press, 2007)
A. G. Harryvan and J. van der Harst (eds.), Documents on European Union (St Martin’s Press, 1997)
A. Milward, The European Rescue of the Nation-State (Routledge, 2000)
P. Norman, The Accidental Constitution (EuroComment, 2003)
D. O’Keeffe and P. Twomey (eds.), Legal Issues of the Maastricht Treaty (Wiley, 1994)
D. O’Keeffe and P. Twomey (eds.), Legal Issues of the Amsterdam Treaty (Hart, 1999)
J.-C. Piris, The Lisbon Treaty: A Legal and Political Analysis (Cambridge University Press, 2010)
D. Urwin, The Community of Europe: A History of European Integration since 1945 (Longman, 1994)
Articles
G. Bebr, ‘The European Coal and Steel Community: A Political and Legal Innovation’ (1953–4) 63 Yale LJ 1
G. Bebr, ‘The European Defence Community and the Western European Union: An Agonizing Dilemma’ (1954–5) 7 Stanford Law Review 169
D. Curtin, ‘The Constitutional Structure of the Union: A Europe of Bits and Pieces’ (1993) 30 CML Rev 17
R. Efron and A. S. Nanes, ‘The Common Market and Euratom Treaties: Supranationality and the Integration of Europe’ (1957) 6 ICLQ 670
S. Peers, ‘The Future of EU Treaty Amendments’ (2012) 31 YEL 17
P. Pescatore, ‘Some Critical Remarks on the “Single European Act”’ (1987) 24 CML Rev 9
A. H. Robertson, ‘The European Political Community’ (1952) 29 BYIL 383
A. H. Robertson, ‘Legal Problems of European Integration’ (1957) 91 Recueil des Cours de l’Académie de la Haye 105
L. Van Middelaar, ‘Spanning the River: The Constitutional Crisis of 1965–1966 as the Genesis of Europe’s Political Order’ (2008) 4 European Constitutional Law Review 98
J. Weiler, ‘The Transformation of Europe’ (1990–1) 100 Yale LJ 2403
How to Find (and Read) the EU Treaties
The EU Treaties constitute the primary law of the Union. The formula the ‘EU Treaties’ or simply ‘the Treaties’ commonly refers to two Treaties: the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU).
The ‘Treaties’ are the result of a long ‘chain novel’ of consecutive treaties (see Table 20.1). They started out from three ‘Founding Treaties’ that created the European Coal and Steel Community (1951), the European Atomic Energy Community (1957) and the European (Economic) Community (1957). A myriad of subsequent ‘Amendment Treaties’ and ‘Accession Treaties’ gradually changed the textual basis of the three Communities significantly; and this first treaty base would be complemented by a second treaty base in 1992, when the Maastricht Treaty created the (old) European Union.
To simplify the – very complex – textual foundations of the old European Union and European Communities Treaties, the Member States tried to create a single treaty in the early 2000s. The 2004 Constitutional Treaty was indeed intended to repeal all previous treaties; and it was to merge the European Union with the European Communities. Yet the attempt to ‘recreate’ one Union, with one legal personality, on the basis of one treaty failed; and the Member States thereafter resorted to yet another ‘Amendment Treaty’: the 2007 Reform Treaty – also called the Lisbon Treaty.
Despite its modest name, the Lisbon Treaty constitutes a radical new ‘chapter’ in the Union’s constitutional chain novel. For while it formally builds on the original ‘Founding Treaties’, it has nonetheless ‘merged’ the old ‘Community’ legal order with the old ‘Union’ legal order into a new ‘Union’ legal order.
Nevertheless, unlike the 2004 Constitutional Treaty, the 2007 Lisbon Treaty has not created a single treaty base for the European Union. Instead, it recognises the existence of two (main) treaties: the Treaty on European Union and the Treaty on the Functioning of the European Union. The division into two EU Treaties thereby follows a functional criterion: the Treaty on European Union (TEU) contains the general provisions defining the Union, while the Treaty on the Functioning of the European Union (TFEU) contains the specific provisions with regard to the Union institutions and policies. One of the new features of the post-Lisbon era is the possibility of minor treaty amendments instigated by European Council Decisions.
In addition to ‘Amendment Treaties’ there are now also ‘Amendment Decisions’ adopted by the European Council (see Table 21.4). The EU Treaties can today be found on the European Union’s
EUR-Lex website: http://eur-lex.europa.eu/collection/eu-law/treaties.html, but there are also a number of solid paper copies such as Blackstone’s EU Treaties & Legislation or my own EU Treaties and Legislation collection. What is the structure of today’s EU Treaties? The structure of the TEU and TFEU is shown in Table 20.4. The (longer) TFEU is divided into ‘Parts’ – ‘Titles’ – ‘Chapters’ – ‘Sections’ –‘Articles’, while the (shorter) TEU only starts with a division into ‘Titles’. The EU Treaties are joined by numerous Protocols and the ‘Charter of Fundamental Rights’. According to Article 51 TEU, Protocols to the Treaties ‘shall form an integral part thereof’; and the best way to make sense of them is to see them as legally binding ‘footnotes’ to a particular article or section of the Treaties.
By contrast, the Charter is ‘external’ to the Treaties; yet it also has ‘the same legal value as the Treaties’.
How to Find (and Read) EU Secondary Law
The Union publishes all of its acts in the Official Journal of the European Union. Paper versions can be found in every library that houses a ‘European Documentation Centre’, but electronic versions are also openly available on the Union’s EUR-Lex website: http://eur-lex.europa.eu/oj/direct-access.html. The Union distinguishes between two Official Journal series: the L-series and the C-series. The former contains all legally binding acts adopted by the Union (including its international agreements), while the latter publishes all other information and notices. Originally, only the paper version of the Official Journal was ‘authentic’; but since 1 July 2013, electronic versions of the Official Journal (e-OJ) are equally authentic and therefore endowed with formal legal force.
Union secondary law will first mention the instrument in which it is adopted. It will typically have the form of a ‘Regulation’, a ‘Directive’ or a ‘Decision’. This will be followed by two figures. In the past, where the Union act was a regulation, the figure was: number/year; while for directives and decisions this was inversed: year/number. However, since 2015, this has changed and all main Union instruments are now arranged by year/number.treaty base would be complemented by a second treaty base in 1992, when the Maastricht Treaty created the (old) European Union.
Where the year and number are known for a given EU act, the easiest way to find it is to use the Union’s EU-lex search engine: http://eur-lex.europa.eu/homepage.html. Importantly, there may be two or more acts for a given number combination, especially where a ‘legislative’ act has been followed by a non-legislative act. For two types of non-legislative acts – namely: ‘delegated’ and ‘implementing’ acts – the EU Treaties require that they contain the word ‘delegated’ or ‘implementing’ in their title. This is to indicate – at first glance – that these executive acts have been adopted according to a particular decision-making procedure. States thereafter resorted to yet another ‘Amendment Treaty’: the 2007 Reform Treaty – also called the Lisbon Treaty.
What is the structure of a piece of Union legislation? After its ‘Title’ there follows a brief summary of the decision-making procedure that led to the adoption of the act – including a reference to the legal competence on which it was based. Thereafter comes the ‘Preamble’, which sets out the reasons for which the Union act has been adopted. The content of the act is subsequently set out in various ‘articles’, which may be grouped into ‘Sections’ and ‘Chapters’. For very technical Union legislation, there may also be an Annex – which, like a ‘Schedule’ in a UK statute, adds detailed provisions ‘outside’ the core content of the act. To illustrate this legislative structure, let us take a closer look at the Services Directive as it would be published in the Official Journal.
How to Find (and Read) EU Court Judgments
All EU cases are identified by a number/year figure. Cases before the Court of Justice are preceded by a C-, while cases decided before the General Court are preceded by a T-( for the French ‘Tribunal’).7 The Civil Service Tribunal prefixed its cases with an F-( for the French ‘Fonction publique’). Following this unique figure come the names of the parties to the case. A full case name would for example be: Case C-144/ 04, Werner Mangold v. Rüdiger Helm. However, since no one can remember all the numbers or all the parties, EU cases often get simply abbreviated by the main party; in our case Mangold.
In the past, judgments of all EU Courts were published in paper form in the purple-bound European Court Reports (ECR). Cases decided by the Court of Justice were published in the ECR-I series; cases decided by the General Court were published in the ECR-II series, while cases decided by the Civil Service Tribunal were published in the ECR-SC series. However, as of 2012, the entire Court of Justice of the European Union decided to go ‘paperless’ and it now publishes its judgments only electronically.8 The two principal websites here are the Court’s own curia website (http://curia.europa.eu/jcms/jcms/j_6), and the Union’s general EUR-Lex website (http://eur-lex.europa.eu/homepage.html). For the purposes of this book, the easiest way is however to go to www.schutze.eu, which contains all the judgments mentioned in the main text – including the ‘Lisbon’ version of all classic EU Court judgments.
Once upon a time, judgments issued by the European Court were – to paraphrase Hobbes –‘nasty, brutish and short’. Their shortness was partly due to a structural division the Court made between the ‘Issues of Fact and of Law’ (or later: ‘Report for the Hearing’), which set out the facts, procedure and the arguments of the parties, on the one hand, and the ‘Grounds of Judgment’ on the other. Only the latter constituted the judgment sensu stricto and was often very short indeed. For the Court originally followed the ‘French’ ideal of trying to put the entire judgment into a single ‘sentence’! A judgment like Van Gend en Loos contains about 2,000 words – not more than an undergraduate essay.
This world of short judgments is – sadly or not – gone. A typical judgment issued today will, on average, be four to five times as long as Van Gend. (And in the worst-case scenario, a judgment, especially in the area of EU competition law, may be as long as 100,000 words – a book of about 300 pages!) This new comprehensiveness is perhaps the product of a more refined textualist methodology, but it also results from a change in the organisation and style of judgments. Modern judgments have come to integrate much of the facts and the parties’ arguments into the main body of a ‘single’ judgment, and this has especially made many direct actions much longer and much more repetitive! The structure of a modern ECJ judgment given under the preliminary reference procedure may be studied by looking at Figure 20.2.
How to Find EU Academic Resources
The literature with regard to European Union law has exploded in the last 30 years. Today, there exists a forest of European law journals and generalist textbooks. Moreover, since the mid 1990s ‘European’ law has increasingly developed specialised branches that are sometimes even taught separately at university (as is the case at my own university). The three main branches here are: European constitutional law, European internal market law and European competition law. The first was explored in Parts I and II, while the second branch (and elements of the third branch) were covered in Part III. In addition to these three ‘bigger’ branches, the last two decades have also seen the emergence of many ‘smaller’ branches, such as European external relations law, European labour law and European environmental law. And there now also exist specialised LLM courses on EU consumer law and EU tax law.
The list of journals (Table 21.5) is by no means comprehensive. It is meant to point the interested reader to a first gateway for an in-depth study of a particular part of European Union law. My selection focuses primarily on English-language academic sources. But it goes without saying that European Union law is a ‘European’ subject with journals and textbooks in every language of the Union.
