FEATURE: a Guide to European Union Law, 10Th
Total Page：16
File Type：pdf, Size：1020Kb
Q2 ‘11 Flags of the 27 E.U. member states fly in front of the European Parliament in Brussels. FEATURE: A Guide to European Union Law, 10th Pierre S.R.F. Mathijsen has a long, intimate association with the European Union. In our cover story and his book from Sweet & Maxwell, he removes the mystery about how the E.U. works and defends it as a structure that actually works. LegaL GlobaLaw Quarterly cOver sTOry The latest legal developments 3 Who are “they” who make decisions for the European Union. and informational resources Sweet & Maxwell author Pierre S.R.F. Mathijsen answers that from around the world question in his quick tour of E.U. agencies and personnel. GlobaLaw Quarterly provides legal in-depTh review professionals conducting transnational 7 Canada’s new law on immigration and refugee protection took effect April 1. Immigration lawyer business with current developments in Sergio R. Karas analyzes it and alerts employers and employees to key changes. international law and the latest legal products from our worldwide family new frOm carsweLL of publishers. 18 Drug and Health Products Law in Canada 16 Energy Law and Policy Our promise: to bring you the best legal 17 Family Law Litigation Handbook products in the world. Global Legal Products is dedicated to providing you 18 Global Business Immigration Handbook, 2011 with the best global legal products for 19 Intellectual Property: The Law in Canada, 2d the best value – and a level of service 21 Oosterhoff on Wills and Succession, 7th you won’t find anywhere else. 15 The Law of Fraud and the Forensic Investigator, 2d Contact your Sales Representative for new frOm sweeT & maxweLL more information: 17 A Guide to European Union Law, 10th 1-800-328-9352 15 Arlidge & Parry on Fraud, 3d [email protected] 14 Construction Insolvency, 4th 12 Exclusion Clauses and Unfair Contract Terms, 10th Follow us on Twitter: 10 Principles of Corporate Insolvency Law, 4th twitter.com/westlawchina 10 Sealy & Milman: Annotated Guide to the Insolvency Legislation 2011, 14th Find us on Facebook: 13 Sinclair on Warranties and Indemnities on Share and Asset Sales, 8th facebook.com. 20 The Law of Passing Off: Unfair Competition by Misrepresentation, 4th Search “Global Legal Resources” or facebook.com/ new frOm sweeT & maxweLL hOng kOng thomsonreutersgloballegal 16 Employment Law and Practice in Hong Kong 19 Intellectual Property Rights in China new frOm ThOmsOn reuTers ausTraLia 20 Class Actions in Australia, 2d 12 Commercial Leases in Australia, 6th 14 Construction Law in Australia, 3d 11 Corporations − Court Rules and Related Legislation 2011 11 Corporations Legislation 2011 13 Miller’s Australian Competition and Consumer Law Annotated, 33d, 2011 nOw On wesTLaw® Additions to Westlaw China’s content include model contracts, labor and social security law, and historical versions of statutes. Prices subject to change due to currency exchange rate fluctuations. © 2011 Thomson Reuters L-366804/6-11 2 Cover Story r y n e w s T i n d u s The European Union: who’s really in charge? americans, and even many europeans, find european union governance confusing. in this article, dr. pierre s.r.f. mathijsen explains the e.u.’s structure, why it came about, and how it functions. he is the author of A Guide to European Union Law, 10th, published by sweet & maxwell. Taking a closer look Whether barrister, judge, lawyer, professor, or student, the European Union institutions seem to keep everyone “on the ball” the year long. The moment you think you have mastered the subject of your choice, “they” once again introduce changes or new issues. But who are “they”? To answer that question, it is necessary to have a closer look at the union’s institutional framework and the way it operates. If you are not an expert on European matters, you will probably answer the “Who are they?” question with “Brussels.” But don’t we all know that “Brussels” means not only the thousands of union officials who reside and work there within the European institutions, but also those thousands of people who regularly arrive there for meetings and decision making. Did you read this correctly: “decision making”? From this, it would appear that the latter, the short-stay people, are the ones who make the decisions, rather than the ones who work there, mainly within the European Commission. Is that really so? Is it then not the European Commission that decides, changes, and introduces new legislation all the time? Who then are these short-stay people? They are, practically all of them, nationals of the 27 member states of the union: Easy to order: • Central government ministers (to start with the most important ones!) Call 1-800-328-9352 or email [email protected] • Secretaries of state 3 • Regional ministers from federal states (Germany and Belgium, for instance) • And more often than not, officials from the national government departments In fact, the latter come to Brussels to help prepare the decisions to be taken by the former. Important here is the word “decision,” or rather “binding decision,” or even better, “legislative acts.” (Treaty on the Functioning of the European Union (hereafter TFEU), Article 289(3).) These are referred to as directives, regulations, and decisions. When they are adopted by “legislative procedure,” they bind those to whom they are addressed, and that can be you and me. The European Council ‘‘Legislative procedure” means “joint adoption by the European Parliament and the Council.” (TFEU Article 289(1).) This definition requires a word of warning and an explanation. Indeed there are within the European Union two councils. One is the European Council and the other simply “the council” (the Council of Ministers). These two must not be confused, as so many still do after all these years. It will have been noticed that the European Council was not mentioned above among those who come to Brussels to make binding decisions. Why is that? Isn’t that institution powerful enough to take binding decisions? No, lack of power is not the reason, but it follows from the fact that the European Council is composed of heads of state or heads of government. In other words, they are not mere ministers in charge of legislation. And why do we find heads of state among simple heads of government? The reason is that in France the president of the republic, i.e., the head of state, is also the head of the government, and it is as such that he is present among the other heads of government within the European Council. More important, of course, is the question, “Why does the European Council not make binding decisions?” The answer is that this is not its role. After all, adopting regulations, directives, and decisions is not what you would call a regal occupation; it is normally left to more technical instances. And indeed, the Treaty on the European Union determines that, “The European Council shall provide the union with the necessary impetus for its development and shall define the general political directions and priorities thereof.” (E.U. Article 15(1).) With the European Council we are thus in the political (strato)sphere, far away from mere legislation and execution, the latter being left to the simple legislative and executive instances. Anyway, in order to avoid confusion, the E.U. Treaty adds that the European Council “shall not exercise legislative functions.” (ibid.) The Council of Ministers What then about “the council” (the Council of Ministers)? This one is, in fact, part of the European Union’s “legislator” and is comparable to a senate in a federal state. This is not mentioned in so many words anywhere in the European treaties but simply follows from the attribution of specific competences to the various European institutions. 4 It will be remembered that, as was mentioned above, the union’s legislative acts are adopted “jointly by the European Parliament and the Council.” These two together, therefore, form, generally speaking, the union’s legislator. This adoption of legislative acts by these two institutions acting together is done according to a very complicated process, since it is within the council and based on a qualified majority, which changes over time. It probably suffices to know that both institutions are equals and need each other in order to legislate. As mentioned already, the ministers only come to Brussels for meetings, while the members of the European Parliament meet once a month in Strasbourg (although the real work, that of the committees, is done in Brussels). Nevertheless, it is these ministers and parliamentarians who make the binding European decisions. This is important, since it should be clear by now that the so-often-heard accusation that “Brussels” has decided so and so or done this or that is very far indeed from reality. When you reproach the European Union for having taken such or such decision which utterly displeases you, don’t forget that it is your own minister and the members of parliament, which you have elected, that are the culprits, not “Brussels.” The task of the European Commission But then what about these thousands of European Union officials who work and live in Brussels? Do they not issue legislative acts? The answer simply is, “No.” That is not the task of the European Commission. It has more important things to do, among others and in the first place, making sure that the treaty rules are correctly applied by all: governments, institutions, undertakings, and individuals. Furthermore, the European Commission executes the budget and ensures the union’s external representation. It is what is known in all the member states as the executive, i.e., the second branch of any democratic state structure, the first one being the legislative, and the third one being the judiciary, i.e., the European Courts (Court of Justice, the General Court, and the Civil Service Tribunal).