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Supremacy without pre-emption? The very slowly emergent doctrine of Community pre-emption
... However, those two dimensions can be subsumed in the case of European law, leading to restrictions of national sovereign powers, but also to different standpoints of MSs. Below is a reminder of some cases of the CJEU saying that the European provisions have predominant effect in relation to national constitutional provisions which are contrary (see also Schütze, 2006). ...
This paper analyses the interpretation of direct effect in terms of its contribution to the development of an efficient European legal system. A precondition for efficiency is the enforceability of provisions. The concept of direct effect, interpreted on the basis of a questionably adequate understanding of the concept of monism taken over from international law, should enhance enforceability by disabling national agents to interfere or to perform the “handover” of rights from the EU level to citizens. Such understanding leads to the national practice applying direct effect in a simplified, plain, and bureaucratic way, and distancing from the substance of provisions. In the cases where, intentionally or not, direct effect/direct applicability are sometimes denied and sometimes recognised to directives and regulations, the CJEU shows how to deal with such situations occurring in the activities of the European regulatory institutions. To fulfil its purpose, national agents applying European law should deploy the underutilised but demanding “shield and sword” approach regarding direct effect. Such an approach, which requires almost equally intense engagement as in the case of indirect effect (also insufficiently exercised at the national level), should defend individual rights from both national and supranational unfavourable influences. In doing so, fundamental rights and general principles encouraged and taken care of by the CJEU, which are and should be the cornerstone of the EU legal system, and which are ultimately a justification for the Member States to embrace the principle of supremacy of European law, should be taken into account.
... 79 MS are thus still limited in their capacity to act even when the EU has not acted in these areas. By virtue of the doctrine of pre-emption, which 'denotes the actual degree to which national law will be set aside by [Union] legislation', 80 there is in these areas, a 'field pre-emption' by the Union which excludes MS law from the fields occupied by EU law. All national laws will be considered invalid 'even when such measures are not contrary to, or do not obstruct the objectives of, [Union] legislation in any way'. ...
This article examines, from a legal perspective, the Lisbon Treaty changes over the European Union's (EU) common agricultural policy (CAP) and their impact on developing countries. The study focuses particularly on the Caribbean region of the African, Caribbean and Pacific (ACP group), which signed an Economic Partnership Agreement with the EU in 2008, and will use bananas as the exemplar commodity. The Lisbon Treaty which entered into force in December 2009 has brought important institutional changes within the EU and altered the distribution of responsibility over European policies. The European Parliament (EP) now exercises legislative functions 'jointly' with the Council over fields falling outside EU trade policy but which often have trade-related impacts. This is the case of the CAP which is now a shared rather than an exclusive competence policy area. The EU is an important market for developing countries' export of agricultural food products. However, there is a risk that the EP positions, pressured by consumer opinion, could influence the negotiating process leading to the reinforcement of the EU's protectionist agriculture policy. This subject is of high importance given the end of the so-called 'banana war' in 2009 against the EU banana import regime, allowing better access for Latin American countries' bananas to the EU market. This article argues that ACP countries will not be affected by the EU internal changes post-Lisbon. They have managed to legally maintain special trade arrangements with the EU under the Economic Partnership Agreements, which provide them with favourable trading conditions, particularly for agricultural food products.
This chapter looks at the DMA through the prism of pre-emption and the relationship between EU and national law. It explains the fundamentals of pre-emption in EU law and shows the consequences for the DMA and national rules that are to ensure fairness in the digital market space. It argues that fairness in the digital market with regard to business users and consumers has been exhaustively regulated by the DMA. Thus, existing and future national rules that aim to address additional fairness matters are pre-empted and cannot be applied to gatekeepers. The only option Member States have is to introduce further fairness related matters into their competition laws which elevates the well-known debates about the relationship between competition law and fairness to a new level.
The key question addressed in this chapter is the extent to which the European Public Prosecutor’s Office (EPPO) is a suitable model for a future ‘federal’ system of European criminal law. The analysis approaches that question especially by studying the relationship between EPPO, national sovereignty and legitimacy. On this basis, the first section of this chapter proceeds to comprehensively analyse the scope, nature and type of enforcement powers enjoyed by the EPPO. The chapter’s second section discusses in detail the ways in which the exercise of the EPPO’s powers may constitute a threat to national sovereignty whilst the third section considers EPPO from the perspective of legitimacy, with a particular focus on judicial review of the EPPO’s activities. The final part of the chapter analyses the pros and cons of establishing the EPPO by means of enhanced cooperation.KeywordsFederalismEnhanced cooperationEuropean Public Prosecutor’s OfficeSupranational criminal lawLegitimacy
This chapter builds on the theoretical foundations set out in Chap. 2 and lays down further and more contextualised foundations for the subsequent chapters. It explains the notion of the area of fisheriesArea of fisheries in the EU as understood in this book and the way in which the framework of normativity generally applies in this area. More specifically, it explains the different dimensions of the area of fisheriesArea of fisheries and the various EU policies involved in it, thus setting the broad policy background of the analysis in the following chapters. The EU policies mentioned are Common Fisheries Policy, Environmental policyEnvironmental policy, Common Commercial Policy, Development Cooperation PolicyDevelopment Cooperation Policy (DCP), Social policySocial policy, and Common Transport Policy. This chapter also makes two central arguments. It argues that the EU (1) has the necessary institutional framework, internal competences, and external capacityCapacity to act normatively and (2) is required to act normatively in the area of fisheriesArea of fisheries based on both primary and secondary EU law instruments from the area of fisheriesArea of fisheries.
Energy transition in the European Union (EU) and its Member States involves questions of federalism, which are subject to various perspectives. The distribution of powers cannot be properly understood using classical legal methodology alone because Articles 192 to 194 of the Treaty on the Functioning of the European Union (TFEU) contain too many ambiguous political compromises. On the one hand, Article 192(1) TFEU (on the environment) and Article 194(1) and (2)(1) TFEU (on energy) enable EU legislation on energy transition through the ordinary legislative procedure, including majority voting in the European Parliament and the Council. On the other hand, there are significant textual limits for EU action in neighbouring provisions with a ‘sovereignty exception’ for the Member States in both Article 192(2) and Article 194(2)(2) TFEU. This article argues that, in the light of the Paris Agreement, the allocation of competences between the EU and its Member States should, in case of doubt, be understood in such a way that effective climate protection becomes possible. Because under Article 191(1) TFEU the EU is to promote measures at the international level to combat climate change, such an international law-friendly interpretation is part of a legitimate teleological approach. Economic theories of federalism and innovation research in the social sciences help us to understand which aspects of economic or innovation theory can promote effectiveness in this respect. It is necessary to interpret the distribution of competences in a dynamic way, thereby slightly shifting the limits of interpretation.
The power and capacity of the European Union (EU) to make trade and investment agreements post-Lisbon has been shaped through a series of recent decision by the Court of Justice of the European Union, including especially Opinions 2/15 and 1/17. The present chapter aims to illustrate the resulting ex ante review of the EU’s competence in the field of trade and investment, the legal instruments providing that review, and its effects on the procedure and design of EU trade and investment agreements. In short, it looks at where we are now, by what means we got here, and how we might go on.
This major new textbook for students in European law uses a text, cases and materials approach to explore the law, politics, policy and practice of EU external relations, and navigates the complex questions at the interface of these areas. The subject is explored by explaining major constitutional principles, and elaborating upon them in policy-specific chapters ranging from common commercial policy and development policy over CFSP/CSDP and AFSJ to energy and enlargement policy. Specific attention is given to the relationship between European integration, the role of law, and the EU as an effective international actor. Designed for easy navigation, chapters include key objectives, summaries and textboxes, which frame key issues and guide the reader through the functioning of legal principles. Students gain a detailed understanding of the historical development, context and present functioning of EU external relations law in a highly politicised European and international environment.
This chapter traces the legal framework for the participation of the European Union (EU)2 in the activities of the UN in the field of global environmental governance. The chapter starts with a brief overview of the objectives and commitments of the EU in the field of multilateralism and the environment, where full account is taken of the strengthened language after the Lisbon Treaty. Second, this chapter will look into two key aspects for enabling the EU to participate in international relations: competence and the exercise thereof, in particular as to the external representation of the Union. While both aspects are of course linked, it is important to inquire into them in turn in order to reveal the intricacies of the post-Lisbon framework. It will be argued that precisely the field of global environmental governance offers a prime sample of the major issues that surround the EU’s external action. Moreover, a brief overview is given of the limits and possibilities of the UN legal and institutional framework when it comes to enabling a stronger role for the EU. Finally, the attention is turned to the EU’s actual participation in global environmental governance under the UN umbrella. On the one hand, the EU’s external representation in environmental matters in the UN context is examined, and, on the other hand, some concrete examples are discussed to reveal the challenges and opportunities for coherent and effective future action by the EU in the field of environmental policy through the UN system. The chapter thus offers insights into the day-today practice of the Union as it struggles to translate the vagaries of the Lisbon Treaty into practical arrangements for the EU’s external environmental policy.
The Court of Justice of the European Union (ECJ) has an important influence on the scope of European Union (EU) activities and its competences. In this regard the ECJ resembles the Supreme Court of the United States. The Supreme Court has influenced the distribution of powers between the federal government and the States through ‘pre-emption’. This doctrine of U.S. constitutional law deprives the State and local governments of their power to act in an area where Congress (the federal legislature) has legislated, an effect of the Supremacy Clause. The situation is similar in the field of shared competences in the EU. Since the early 1900s, lawyers in the U.S. have analyzed the various elements of pre-emption: Express and implied pre-emption; field and conflict pre-emption. Looking at the political effects of pre-emption, one sees the considerable extension of the scope of Congress’s actions, in particular since the New Deal era of the 1930s. It is difficult to find any ‘reserved powers’ for the States. In view of the experience of the U.S., it is not surprising that the European Union has extended its competences over the years, in a number of cases through the rulings of the ECJ. In view of the festering economic crisis in Europe, it will be difficult to shift powers from Brussels back to national governments.
By tracing the way in which the CJEU and national courts react to legislation and Treaty reform, and the way in which the Member States, Commission and other actors in the legislative process react to judicial interventions, this collection of essays explores the nature of the dynamic relationship between courts and legislatures within the EU. It is clear that the boundaries between the legal and political realms are contested and that the judiciary and the legislature are engaged in a struggle, not so much about the substantive contours of the internal market project, but rather about their relative institutional positions. The contributors consider all aspects of the internal market project, from goods to capital and citizenship, examining areas where there has been significant Treaty change as well as those in which the Treaty framework has remained substantially unaltered.
EU Anti-Terrorismus-Sanktionen sind ein Extrembeispiel von Grenzauflösung zwischen Innen- und Justizpolitik und Außen- und Sicherheitspolitik sowohl im europäischen als auch im nationalen Kontext, von systematischer Verletzung von Menschenrechten, von Externalisierung von Exekutivmacht auf die internationale Ebene und von vollständig harmonisierten strafrechtlichen Maßnahmen auf europäischer Ebene. Dieser Artikel untersucht und erklärt, inwiefern Anti-Terrorismus-Sanktionen eine Ausnahmeerscheinung sind und welche Faktoren ihr Annehmen durch die EU möglich gemacht haben.
This article gives a comprehensive account of the shortcomings of the European Union’s (EU’s) policy of sanctioning terrorist suspects and makes tentative suggestions on how to resolve them. While much has been written on the case law of the EU courts on counter-terrorist sanctions, the actual practice of adopting these measures has attracted much less attention. Imposing sanctions on individuals remains qualitatively and quantitatively the most important Common Foreign and Security Policy of the EU, and individuals continue to bring challenges against sanctions before the EU courts. At the same time, many issues surrounding the EU’s sanctioning practice remain unresolved. This article addresses these issues. Individual sanctions are not only the cornerstone of EU counterterrorist policies but also an oddly harmonized form of EU criminal law. The EU institutions continue to adopt sanctions based on pre-Lisbon instruments, which fall outside the jurisdiction of the court. Uncertainty surrounds the choice of the correct legal basis under the Treaty on the Functioning of the European Union (TFEU).The composite adoption procedure of autonomous EU sanctions does not give those sanctioned the necessary opportunities to be heard. Finally, pre-emption sandwiches Member States between EU law and their obligations under the UN Charter.
This Article addresses whether a level or unit of government in a federal system must act only on political self-interest or on an understanding of the needs of the system as a whole. To address this question, this Article compares the dominant U.S. "entitlements" approach, which looks only to political self-interest, with the dominant "fidelity" approach in the European Union and in Germany, which demands that institutional actors temper political self-interest by considering the well-being of the system as a whole. This Article demonstrates that the fidelity approach actually comes in two significantly different versions: (1) a "conservative" fidelity approach, which undermines democratic federalism by seeking to align the diverse interests throughout the federal system, and (2) a "liberal" fidelity approach, which promotes democratic federalism by preserving constructive democratic intergovernmental engagement throughout the system. This Article concludes that the former should be rejected, but that the latter warrants our attention in the United States as a promising and hitherto neglected alternative to the dominant U.S. approach based on institutional "entitlements."