EU CONSTITUTIONAL LAW

The European Union is based on fundamental values that are supported by strong pillars in the forms of rules and laws within the framework of the consolidated version of the Treaty on European Union (2007) which is one of the primary Treaties of the European Union, alongside the Treaty on Functioning of the European Union (TFEU).  Important issues to keep in mind as follows.

1. LEGAL NATURE – ART. 1 TEU

This Treaty, the high contracting parties establish among themselves a European Union… on which the member states confer competences to attain objectives they have in common. This Treaty marks a new stage in the process of creating an ever closer union among the peopleS of Europe.

Our readers will benefit by contrasting this definition to that of Henry Black (Black’s Law Dictionary): –

A people permanently occupying a fixed territory bound together by common-law habits and custom into one body politic exercising, through the medium of an organized government, independent sovereignty and control over all persons and things within its boundaries, capable of making war and peace and of entering into international relations with other communities of the globe.”

2. LEGAL PERSONALITY –ART. 1 TEU

The Treaty of Lisbon replaced the EC with EU and inserted new provision ‘The Union shall have legal personality’ which stimulates that the EU can enter into international agreements, right to conclude contracts, right to initiate legal proceedings etc…

3. EU VALUES –ART. 2 TEU

The union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.

4. EU OBJECTIVES –ART. 3 TEU

• 1. The union’s aim is to promote peace, its values and the well-being of its peoples.
• 2. The union shall offer its citizens an area of freedom, security and justice without internal frontiers…
• 3. The union shall establish an internal market… it shall combat social exclusion and discrimination, and shall promote social justice and protection…
• 4. The union shall establish an economic and monetary union whose currency is the euro.
• 5. In its relations with the wider world, the union … shall contribute to peace, security, the sustainable development of the earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights… as well as to the strict observance and the development of international law, including respect for the principles of the united nations charter.

5. MEMBERSHIP OF THE EU

Two key principles are Art.49 and Art.50 TEU as follows.

Article 49 TEU states that any European state which respects the values referred to in article 2 and is committed to promoting them may apply to become a member of the union…

While Article 50 TEU put forward the phrase: ‘ANY MEMBER STATE MAY DECIDE TO WITHDRAW FROM THE UNION… (Provision introduced in the TEU by the Treaty of Lisbon)

6. FUNDAMENTAL RIGHTS post Lisbon Treaty ( new Art. 6 TEU)

• The Union recognizes the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000 … which shall have the same legal value as the Treaties…
• The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms…
• Fundamental rights, as guaranteed by the [ECHR] and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law

APPENDIX- the EU Democratic Deficit theory

“The democratic deficit is a concept invoked principally in the argument that the EU suffers from a lack of democracy …

The view is that the [EU] institutional set-up is dominated by an institution combining legislative and government powers (the Council of Ministers) and an institution that lacks democratic legitimacy (the Commission)…” -Europa.eu.

LISBON’S ANSWER (SEE TEU’S TITLE II)

• The principle of democratic equality (Art. 9 TEU):

EU shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions

• The principle of representative democracy (Art. 10 TEU):

EU citizens are directly represented at EU level in the EP + indirectly in the European Council by their Heads of State or Government and in the Council of Ministers by their governments + increased role for NPs

• The principle of participatory democracy (Art. 11 TEU):

EU citizens must be able to make known and exchange their views on all areas of EU action + dialogue with representative associations and civil society + new “citizens’ initiative”

 EU POWERS – MAIN CATEGORIES

EU POWERS – Main categories

• (i) Exclusive competences = only the EU can legislate
• (ii) Shared competences = National measures are possible but only insofar as they complement & do NOT conflict with EU law
• (iii) Complementary competences = No EU harmonization through legislation possible
• special rules for economic and employment policies (coordination role for the EU) + special rules for CFSP

To be continued on Governing Limits and use of EU power