The Fragility of Eu Law. Hela

THE FRAGILITY OF EU LAW Judith Merkies Alvaro Renedo Zalba Laws in stone Since the biblical tale of Moses carving laws in stone, laws have the image of being untouchable and cold. They seem to be set in stone. But are they really? Wherever there is society, there is law -ubi societas, ibi ius. The tendency of law to mirror society poses challenges in a fast-changing world. The European Union (EU) has proven to be a union of those who believe in the benefits of standing strong together. Its legal and institutional system is founded on treaties and a common acceptance of the EU’s validity and importance as a shared project of supranational integration. Still, the content of the system and degree of acceptance are influenced by turbulent political changes and crises EU Member States and institutions may face, as shown by Brexit and COVID-19. The EU institutions responsible for lawmaking, the Council and the European Parliament, on the basis of the European Commission’s right of initiative, move with the political tide. This tide and the complexity of EU lawmaking make EU laws hard as stone, albeit in a “butter soft” way. The process of EU lawmaking still has to match the sturdiness of EU law. The EU has proven that destiny is linked to policy, and can be made and shaped by hand. This article will argue that it is this process of lawmaking that is “butter soft”, not the validity of its outcome. The importance of EU law Before addressing the process of law making, let us first address the importance of European law. The European Union is, quintessentially, a legal construct. Walter Hallstein, the German Christian-democrat, who in 1958 was appointed as the first President of the European Commission, referred to the European Economic Community -the predecessor of today’s EU- as a “Community of Law”. The Primary Law of the (chiefly, EU Treaties) and Secondary Law (directives, regulations, decisions, etc.) of the EU permeate the lives of hundreds of millions of European citizens from currently 27 Member States, the special Member State territories and – partly – countries in the European Economic Area. With this figure in mind, it is clear that EU law, with the limits and shortcomings it may have, constitutes the basis of the most sophisticated project of supranational integration in the history of mankind. For an EU Member State, EU affairs amount to domestic policy. The immediate impact on the national political sphere of the decisions made daily in EU institutions, along with the symbiotic entanglement between EU and domestic institutions, warrant this consideration. Decisions made in the EU have domestic resonance in ways that have led many to identify a quasi-federal nature in EU polity. Press conferences delivered after European Councils are addressed to a variety of international audiences, but also – and perhaps foremost - to domestic constituencies, which thoroughly scrutinize a Government’s capacity to uphold and defend national interest within EU institutions. The one-minute addresses, in the plenary, on impending votes on legislation by Members of European Parliament (MEP) are mainly recorded for their voters back home. 1 One of the most eloquent examples of this domestic resonance is EU law. From a strict technical perspective, EU law is a sub-system of Public International Law, as it is founded on the consent of sovereign nation states and the treaties-based system agreed by them. However, the applicability -and on many occasions, direct effect- of EU law in the domestic sphere makes it, from both a de facto and a de jure point of view, “law of the land” for every Member State. An important aspect of the domestic “feel” of EU law is the national representation on both sides of the legislative axis in the European Union. The voice of the national government is heard in the Council and the voices of the elected representatives in the European Parliament. The nature of EU law is, thus, complex and sui generis, as highlighted in European case law. Recent judgement Achmea C-284/16 and Opinion 2/13 underscore that EU law it is an “autonomous“ legal order, and it deploys primacy over all national law, including constitutional provisions -at least in the Court of Justice of the EU’s understanding of its own legal order. This goes well beyond ordinary sub-systems of Public International Law. EU law is an entirely new and different legal creature. The importance of EU law for Member States is, thus, clear, both from a qualitative but also quantitative perspective: not only is it law of the land, it is a quite important source of it in proportion to overall legislation. Quantification studies and claims vary on the exact percentage or proportion of EU laws within Member states (some substantiate that this proportion exceeds 80% of overall legislation, others consider it is around 50%). It is safe to sustain, in any case, that a significant chunk of laws that are currently in force and define the respective frameworks of coexistence for EU citizens has its origin in the EU. Moreover, it must be highlighted that this importance is not limited to Member States. It is commonly asserted that the EU’s normative identity translates into normative power: rules and standards agreed within the EU become, not infrequently, international rules and standards. EU law has turned into a significant source of international standard in many fields, including data protection, environmental protection or competition.1 This comes as no surprise, taking into account that EU exports accounted in 2018 for 15.2% of global exports, and EU imports 15.1% of global imports, making it one of the world’s biggest trade players alongside the US and China.2 The EU currently has 116 trade agreements in place or in the process of being updated or negotiated. The fragility of EU law As important as it undoubtedly is, EU law is at the same time quite sui generis in nature. It presents unique features which could perhaps be interpreted as symptoms of “fragility”. In which sense, however? Fragility has different meanings. The first meaning of fragility is “easily broken or damaged”. The etymology is Latin, fragilis, brittle. We do not claim EU law is “fragile” in the sense of “easily broken”. EU law is firmly embedded, as said, in the legal systems of 27 Member States. In order to modify Primary Law (EU Treaties), unanimity amongst the Member states is required, which is quite difficult to achieve. Similar issues arise with regard to Secondary Law (regulations, directives, etc), which frequently requires a qualified majority to be modified; when the legislative act was not proposed by the Commission, such majority will require that 72% of the Member States and 65% of EU population support it. This is a daunting task shrouded in a complex procedure. 1 Bradford, Anu. (2012). The Brussels Effect. Northwestern University Law Review. 107. 1-68. 2 https://www.europarl.europa.eu/news/en/headlines/economy/20180703STO07132/the-eu-s-position-in-world- trade-in-figures-infographic. 2 But there is another meaning of “fragile” which could apply to EU law: “vulnerable”. One could fairly consider that EU law is “vulnerable”, owing to its inherent political and politized nature. Many would argue, and rightly so, that every law system is political, owing to the fact that it derives primarily from political legislative institutions, namely parliaments. This is, of course, true. However, EU law presents singularities in terms of “political vulnerability or fragility”. Here are five of these singularities. 1. Key role of domestic executive branches in the common EU legislative procedure, known historically as “co-decision” or the “communitarian method”. According to this method -which is, as its denomination indicates, the most common of EU lawmaking procedures-, a proposal by the European Commission is adopted jointly by the two co-legislators: the Council of the EU and the European Parliament (EP). An important note here: The Council of the EU is comprised of the Ministers of the Member States. Thus, European governments carryout a key legislative role. Arguably, this could seem striking from the perspective of Montesquieu’s classic of division of powers. THE LEGISLATIVE POWER IN THE EUROPEAN UNION Most decisions are taken by co-decision, between the Council and the European Parliament 1. European Commission The right of initiative Independent/individual power: Commissioner of Competition 1 3. European Parliament 2. Council 3 The Axis of Legislative 2 Power 4 5 5. European Court of 4. European Council Auditors 64 6. European Court of Justice 3 Also, it must be noted that the Commission has a monopoly of legislative initiative. Whereas the Council represents the diverse interests of the Member States and is made up of Ministers from these Member States, the Commission embodies the general EU interest and is comprised of 27 European Commissioners. These Commissioners are neutral and independent in statute, but each Member State proposes one, which will have to be confirmed (and elected) by the European Parliament, according to the process laid out in article 17 of the Treaty of the European Union. The political origin, however, of the Commissioner is a proposal by a national executive branch, without prejudice to the subsequent process of “magical” conversion which takes place when the Commissioner is elected and thus adheres to the statute of neutrality and independence inherent to the College of Commissioners, and vows to promote the interest of the European Union as a whole. 2. The vulnerability of the legislators in the European Parliament Most politicians in the first legislature of the European Parliament, in 1979, had a double mandate, a local or national mandate, combined with the elected seat in the European Parliament.

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