Academy of European Law

2015 European Union Law Course

General Course: What’s Left of the Law of Integration?

Questions and Readings

Julio Baquero Cruz Member of the Legal Service of the European Commission

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They were always just going to have a leader, and laws and customs of their own, but they never did, because their memories would not hold over from day to day, and so they compromised things by making up a saying, ‘What the Bandar-log think now the jungle will think later,’ and that comforted them a great deal.

Kipling

European Union law finds itself in a very difficult situation. In his seminal book The Law of Integration, published in 1972, Pierre Pescatore wrote that the European Communities were based on strong and lasting institutional and legal structures, solid enough to resist the dangers of crisis and the erosion of time. At present, as a result of the institutional and economic crisis, the constitutional crisis, the complexity of the institutional and legal frameworks, the various phenomena of fragmentation, and a clear reduction in the impetus behind integration, we can see signs of serious stress and pressure over the legal and institutional system created by the Treaties of Paris and Rome. So much so that one may think that that framework is no longer adapted to the present times and that it must be reformed in depth.

This course aims at exploring some of the main original traits of the law of integration, putting them in a historical perspective, which is the key to understand them properly and is still very relevant at present.

A first class will present the general approach and themes of the course.

The second class will be devoted to the issues of direct effect, primacy, their reception and resistance by national constitutional courts, and constitutional pluralism as an alleged ‘third way’.

The third class will explore the specificity of the preliminary rulings procedure, its constitutional meaning for the Union, and its structural strengths and weaknesses.

The fourth class will be devoted to the scope of the Charter of Fundamental Rights of the European Union and to the issue of the standard of protection in comparison with national constitutional law and the European Convention on Human Rights.

The fifth class will explore the evolution of the case law on the citizenship of the Union, especially as regards social assistance, paying special attention to the issue of human dignity.

The final class will reflect on the rigidity of the constitutional framework, in view of the requirements of the revision procedures, on the increasing fragmentation of the Union, and on the worrying inroads and regressions into public international law. Some general concluding remarks will close the course.

The students are supposed to read the materials in advance, in the light of the questions attached, and be prepared to be active in class on those and other issues raised by the materials. The questions are by no means the only issues which will be addressed in each class. They are simply meant to suggest a possible reading among many possible directions.

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Class No 1, 2 July 2015, 10.00-11.30: A Historical Approach

Readings:

- Schuman Declaration, p. 1

- Judgment of the European Court of Justice of 5 February 1963, Van Gend & Loos, Case 26-62 (ECLI:EU:C:1963:1), p. 3.

- Walter Benjamin, ‘Thesis on the Philosophy of History’, in Illuminations, edited by Hannah Arendt, Schocken, New York, 1968, p. 7.

Questions:

- Which are the main characteristics of the law of integration that was conceived by the drafters of the Treaties of Paris and Rome in 1951 and 1957 and developed by the European Court of Justice from the 60s onwards?

- Which historical conditions made possible the law of integration? Is that historical experience still relevant? If so, in what way would it be relevant? Is a historical interpretation of the Treaties warranted? May the law of integration be maintained in its present form or should it be radically reconsidered?

- To whom does Union law belong?

- Are the Treaties only ‘documents of civilisation’ or also ‘documents of barbarism’ in the Benjaminian sense?

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Class No 2, 3 July 2015, 10.00-11.30: Direct Effect, Primacy, National Resistance and Constitutional Pluralism

Readings:

- Judgment of the European Court of Justice of 15 July 1964, Costa v E.N.E.L., Case 6-64 (ECLI:EU:C:1964:66), p. 14.

- Order of the German Constitutional Court of 14 January 2014 - 2 BvR 2728/13 (ECLI:DE:BVerfG:2014:rs20140114.2bvr272813), p. 19.

- Neil MacCormick, ‘Beyond the Sovereign State’, Modern Law Review, 1993, p. 45.

Questions:

- Were direct effect and supremacy ‘invented’ by the Court or were they correctly based on the Treaties? Is it correct to say that the approach of Union law is ‘monist’?

- What are the reasons for the resistance of a number of national courts to the unconditional application of the principle of supremacy and to the assertion of limits to integration? Do you find that approach sustainable? How can it be understood in historical terms?

- What is the essence of constitutional pluralism? Is it correct in descriptive terms? Is it attractive and sustainable in prescriptive terms? What consequences would it have in practice if it were adopted as a model for the relationship between Union law and national law?

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Class No 3, 6 July 2015, 10.00-11.30: The Preliminary Rulings Procedure: A Broken Atlas and the Hidden Part of the Iceberg

Readings:

- Judgment of the European Court of Justice of 6 October 1982, CILFIT, Case 283/81 (ECLI:EU:C:1982:335), p. 55.

- Judgment of the European Court of Justice of 30 September 2003, Köbler, Case C-224/01 (ECLI:EU:C:2003:513), 59.

- Order of the German Constitutional Court of 14 January 2014 - 2 BvR 2728/13 (ECLI:DE:BVerfG:2014:rs20140114.2bvr272813) (see class No 2), p. 19.

Questions:

- Why is the preliminary rulings procedure so important? How would the Union system look like without it? What are its strengths? To which judicial procedures of other legal systems would you compare it?

- Is the preliminary rulings procedure based on a purely horizontal dialogue between judges, or does it have some vertical or hierarchical elements? If so, what are those elements?

- What are the weaknesses of the preliminary rulings procedure? Can it be misused? Is CILFIT respected in practice? Can it be respected?

- What happens when a national court of last resort does not refer a question it should have referred to the European Court of Justice? What are the remedies for the parties to the national case?

- Does the OMT reference of the German Constitutional Court represent an acceptable use of the preliminary rulings procedure?

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Class No 4, 7 July 2015, 12.00-13.30: The Scope of the Charter of Fundamental Rights and the Standard of Protection in the Union

Readings:

- Judgment of the European Court of Justice of 26 February 2013, Åkerberg Fransson, Case C-617/10 (ECLI:EU:C:2013:105), p. 81.

- Opinion 2/13 of the European Court of Justice, of 18 December 2014 (Accession of the Union to the ECHR) (ECLI:EU:C:2014:2454), p. 88.

Questions:

- Is the classic case law of the Court on fundamental rights justified (e.g. the judgment in Case 11/70, Internationale Handelsgesellschaft, ECLI:EU:C:1970:114)? What is its main objective: the protection of fundamental rights or to ensure uniformity and supremacy for the law of integration?

- Has something changed with the Charter? Is there a clearer and better system of protection?

- In the light of Melloni, do you think that national fundamental rights and the Charter may apply simultaneously? What would happen in case of conflict? Is there a scope for the autonomous application of a higher national level of protection?

- Does Fransson give a proper interpretation to Article 51(1) of the Charter, or does it unduly extend its scope? In a judgment of 24 April 13 (in Case 1 BvR 1215/07), the German Constitutional Court considered that Fransson is based on the special features of VAT law and does not constitute a general statement about the scope of the Charter. Do you agree?

- Would accession to the European Convention on Human Rights fundamentally change the system of protection of fundamental rights in the Union? What are the main normative and practical challenges of accession? Would accession have consequences for the scope of the Charter and for the level of protection afforded under Union law? Are the Court’s worries about the integrity of Union law in Opinion 2/13 justified or exaggerated?

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Class No 5, 8 July 2015, 10.00-11.30: European citizenship, social assistance and human dignity: from Grzelzcyk to Dano

Readings:

- Judgment of the European Court of Justice of 20 September 2001, Grzelczyk, Case C-184/99 (ECLI:EU:C:2001:458), p. 108.

- Judgment of the European Court of Justice of 11 November 2014, Dano, Case C-333/13 (ECLI:EU:C:2014:2358), p. 119.

Questions:

- What are the limits to the rights of residence of Union citizens? What are the limits to the ‘certain degree of solidarity’ to which the Court refers in the Grzelczyk judgment? For how long will Mr Grzelczyk be able to remain in Belgium? When will he become an ‘unreasonable burden’ for the host Member State?

- What remains of Grzelczyk after the judgment in the Dano case? Has Grzelczyk been overruled by Dano? Does there remain a scope for solidarity among the Member States with regard to economically inactive citizens?

- Is the Dano judgment based on the Treaty or on secondary law? Is the Court overstepping its judicial role in Dano? If so, why?

- Is the position of the Court in Dano regarding the scope of the Charter justified? Is it consistent with its judgment in Fransson?

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Class No 6, 9 July 2015, 12.00-13.30: Rigidity, Fragmentation and the ‘temptation’ of international public law

Readings:

- Judgment of the European Court of 27 November 2012, Pringle, Case C-370/12 (ECLI:EU:C:2012:756), p. 131.

- Bruno de Witte, ‘Using International Law in the Euro Crisis: Causes and Consequences’, ARENA Working Paper No. 4, June 2013, p. 149.

Questions:

- Are the procedures for the revision of the Treaties rigid, flexible or balanced? Have they remained unchanged throughout integration or have they changed substantially, in law or in fact? What are their consequences for the development of the Union constitutional framework?

- Are there phenomena of fragmentation in the Union at present? Which ones? If so, in what way do they affect the integrity of Union law? Are there effective safeguards against fragmentation?

- In the Treaty establishing the European Stability Mechanism of 2 February 2012 and in other recent developments, a number of Member States have concluded international agreements in matters related very closely to those covered by Union law. What are the reasons for this phenomenon and what are the consequences for the integrity of the legal and institutional systems of the Union? Do you agree with the positive assessment of Bruno de Witte?

- Does the Court in Pringle sufficiently protect the integrity of Union law? What was the margin of manoeuvre of the Court in the Pringle case? Compare this judgment with Opinion 2/13: are they convergent or is there a tension between them? If so, what could explain that tension?

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