Civil Law Assignment: Understanding The Law Of European Union
Question
Task : Through this civil law assignment, you are required to answer the following question in no more than 2000 words.
The EU Treaties do not establish an effective and sufficiently democratic framework to control the exercise of EU competences. It is therefore not surprising to see some Member State courts pushing back against the primacy of EU law by asserting their power to review the legality of EU action.’
Q2: Describe strategies for changing and strengthening an organization’s culture, including the application of attraction–selection–attrition theory.
Answer
Introduction
The term competence is utilized to resemble the power of the European Union to undertake certain actions. As per the research on civil law assignment, it is stated that the competencies of the EU are unquestionably established in the EU treaties. It bestowed the basis of any action which can be taken by the European Union. The European Union can act within a certain limit on the matter of competencies conferred to it by the treaties. On the other hand, the EU shall remain with the member state where the treaty does not give out to the competence. Many researchers believe that the prevalence of the competence should be there to align the political structure in the countries associated with the European Union. On the other hand, some groups of researchers stated that power should be bifurcated when it comes to competence. Therefore, this paper is going to critically analyze whether the democratic framework is suitable between the European Union and its member states when it comes to competence or whether the federal system will ensure peace. In addition to that it will also analyze why there are some conflicts that have been raised by the member states on the grounds of judicial review on the legality of EU action.
Discussion
There are some different competencies including exclusive, shared and the supporting that are enshrined in the EU treaties. Scarcely the European Union is able to act on the grounds where it has the power of exclusive competence for example in the common commercial policy and the custom unions . There are some areas where the competence of the EU is shared with other member states for example environment, energy and single market. In this specific moment, either the member state or EU can act but the member states may be averted from acting if EU has already done any act but both the member state and European Union can act in the area of supporting competence namely tourism, education and culture. In this case, the action by the European Union is not eligible to prevent any of the member states from taking their own action . Therefore, it is dependent on the treaties which generally specify the areas where the EU is not holding an exclusive competence. In this case, the EU can act only if the power of it is in a better place than the member states.
For the purposes of discussing whether the court of member states is pushing back against the primacy of the European Union for reviewing their legality and legitimacy of the action, this analysis will use the broader description regarding the competence and its enforcement in the treaties. Describing simply, the competence is the protocols which derive from the law of the European Union that can affect the matters of member states. There are some areas where the treaties assert some competence to the EU. In addition to that, some provisions are also enshrined in that treaties through which the European Union can take any course of action but there are some areas where the treaties directly applied to the member states without intervening in the EU action for example the provision on the free movement and on the state aids.
The above analysis is showing there is some bifurcation of the competencies between the component states and the European Union with the help of certain grounds.
Apart from those analyses regarding the competence of the European Union and its member states, there are different conclusions that have been given by the different researchers. Many law practitioners, analysts and the legal researchers have argued that there is no proper dividation of the competencies between the member states and EU. In contrast, most of the researchers agreed that the European Union can act when there are some right granted by the member states . It is also asserted that the European Union contributes with the vital responsibilities in the people's life, inquiring into the “nooks and crannies” where it is not required. At the same time, it seems that the citizens of Europe want more active power by the European Union in some fields including the foreign policy.
This analysis in this particular backdrop has upheld some thoughts of the researchers and the law analyst pertaining to the competencies which can be exercised autonomously by the European Union or with the share of member states. However, it is also important to analyze the articles under the EU treaties to identify the exact and legitimate competencies of the European Union and its member states. This analysis will be efficacious and beneficial whether the treaties of the European Union follow the democratic framework in order to exercise the competencies of it. The competence regarding the European Union has been defined under the EU treaties under the article of 2 to 6 (Articles 2-6 of the Treaty on the functioning of the European Union - TFEU) . The article 3 defines the Exclusive competence; article 4 defines the shared competence. On the other hand, article 5 demonstrated the competence for providing the arrangement where the member states of the European Union should coordinate and follow the policy and lastly the article 6 has defined the competence for providing support, coordination and supplement accents of the EU’s member states. According to legislation of article 6, the European Union must have the competence for carrying out certain action in order to support and coordinate the action of the member states in some areas such as industry, protection of improvement and human health, education, Tourism, culture, administrative cooperation, civil protection etc.
From the above analysis it can be concluded that the European Union treaties do not permit to establish the democratic framework for controlling the exercise of competencies of the European Union. Thus, the federal system has prevailed in this regard rather than the democratic system. However, few researchers have argued that the European Union is a federal state or federation and at the same time some other researchers have stated that the European Union has federal elements.
It cannot be denied that the European Union has no such codified constitution as similar to the other political entities so that it can lay out the governance structure whether it is promoting the federal structure or the democratic structure. There are primary sources of European Union law namely “The Treaty of European Union (TEU)” and the “Treaty on the functioning of the European Union (TFEU)”. These are the main constitutional origins which have been agreed by both the European Union and the member states associated with it. The treaties established the Institutions of the European Union along with the responsibilities and power of them. There is an executive entity of the European Union named European commission which oversees the different agencies and departments for executive or reinforcement law of the EU.
The European Court of Justice is another important supreme institution or it can be also called the supreme judicial body which mainly integrates the law of the European Union. This court can review the legality and legitimacy of the action of European Union institutions with the compliances of the treaties. The limits regarding the competency are entirely administered by the Court of Justice along with the parliament and court of the member states. The article 4 and 5 of TEU has described the power having with the member states till they have been given. It is also a topic of the debate that ultimately who has the competence to define the competence of the European Union. Many conflicts arose after the formation of the European Union regarding power and legitimacy. Numerous courts of the member states have believed that they should decide the competence of the European Union and the member states. On the other hand, the parliaments of the other member states believe that the Court of Justice must have the final say within the European Union.
Since its establishment, the European Union has functioned among the member states and tried to globalize the legal system. This means the European Court of Justice and also the supreme court of other member countries should have to establish the principles for resolving the conflicts of laws among the different systems in this particular context. Within the context of the European Union, the Court of Justice’s view is that if the union law conflicts with the state law then the law of the EU gets primacy and it will be reinforced in this situation. In this particular instance, the case law Costa vs Enel can be the suitable example. The shareholder Mr. Costa has refused to pay the electricity bill to ENEL. He made the protest against the nationalization of the Italian Energy Corporation. He pointed out some conflict between the Treaty of Rome and Italian nationalization law . Hence, he requested that the reference be made to both the Court of Justice and Italian constitutional law under the article of 267 of TFEU. The Italian constitutional Court has given its judgment with the compliance of the European Union as the nationalization of law came out in the year of 1962 where the treaty was formed in 1958 therefore coaster should not have any claim.
In contrast the Court of Justice held that the Treaty of Rome in this case has no right to prevent the energy nationalization and in any case of provision of the treaty, the commission is capable of bringing the claim not Mr Costa.
In reality, most of the courts of members states such as Supreme Court of the United Kingdom has accepted and conveyed that the law of European Union has the primacy over the national law in the certain fields unless it come from eyes the constitutional principles of the human rights and the democracy. The laws of the European Union have complied with the different International laws along with the European convention on human rights so that basic Human rights can be protected.
The constitutional law concerned with the governance structure of the European Union and the administrative law bound the Institutions of the EU and the government of other member states in order to abide by the law. It also ensures that the member states are following the law. Both the commission and member state hold the legal right for bringing the claim against the institution of the European Union along with the other member state for disobeying the treaties. From the foundation of the European Union, the Court of Justice has also stated that the treaties will allow the corporations or the citizens to bring the claim against member state institutions and EU institutions for violating the regulation and treaties. Nonetheless, there are some directives under which the corporations and citizens have guided not to bring the claim against the non-state parties. Therefore, the court of member states only be eligible to apply the union law in the cases of state law confliction.
The courts of the member states of the European Union can question through the interpretation in the court of Justice for the multiple times on the regard of judicial review of the power dividation between the European Union and the member states. The European Union has held more competence than its other member from its establishment . It is most important to give more democracy to the other member states associated with it but before it there is some validation regarding the law so that it can happen. Therefore, it is most important to clarify the laws of the European Union regarding the treaties to reduce the conflicts among the courts of the member states.
Conclusion
It can be concluded that the European Union must improve the definition and the division of competence significantly with the context of the EU to make the member states more transparent. This will be beneficial to maintain the good relationship of the European Union with its member states and also extends the existing power. It cannot be denied that there must be some areas where consolidation and integration is required between the member states and the European Union but at the same time the distinction between the competences should be required so that conflict can be eradicated.
Bibliography
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