The independence of the EU legal order - Historical overview

Alain-Patrick Umucyo By Alain-Patrick Umucyo, 13th Dec 2014 | Follow this author | RSS Feed
Posted in Wikinut>Writing>History

Since 1957, the legal system of the European Union has gained an ever growing independence from the rest of the international legal order but also from the Member States' legal systems. Today, the EU operates on the same ground as the biggest countries around the world.

1 Introduction

1. “The law of the Union is ever growing and it seems now certain that, with the terms law of the Union, we refer not to a specific domain of the law but to a legislative and jurisprudential setting similar to that of a State.”(1)

2. This remark is part of a preliminary statement of a work published to celebrate sixty years of the Court of Justice of the European Union's case-law. It points out the result of a long streak of fundamental legislative reforms and the relentless contribution of the Court in making sense of those reforms. Such contribution has been an integral part of the construction of the European Union as it is in 2014.

3. The Court has been required to define the specificities of the Union, along with the successors to the Founding Fathers. The definition process was sustained by the will to differentiate the Union from the rest of the international legal order. To that end was fixed the external competencies of the two institutional formations that have led to the birth of the present European Union (EU).

2 The legislative progression to full independence

2.1 The historical milestones

4. In 1957, the first of these two institutional formations was founded by the Treaty establishing the European Economic Community (TEEC). The instrument established the possibility for the Community to conclude agreements with third countries or international organisations. The article 228 (2) provided that :
“Agreements concluded under the conditions set out hereabove shall be binding on the institutions of the Community and on Member States.”(2)

5. In 1992, the adoption of the Treaty on European Union occasioned a reform of the TEEC which became the Treaty establishing the European Community (TEC).(3) The provisions of the article 228 (2) TEEC became part of the article 228 (7) TEC which provides that :
“Agreements concluded under the conditions set out in this Article shall be binding on the institutions of the Community and on Member States.”(4)

6. The signature of the Treaty of Lisbon in 2007 officialised the Treaty on the Functioning of the European Union (TFEU).(5) The essence of the articles 228 (2) TEEC and 228 (7) TEC is now part of the article 216 (2) TFEU which provides that :
“Agreements concluded by the Union are binding upon the institutions of the Union and on its Member States.”(6)

2.2 The substantive coherence

7. The article 216 (2) TFEU embodies the progression that enabled to define the Union by distinguishing it from the rest of the international legal order. A systematic approach of this progression imposes to notice that this article is part of Title V International agreements, which is an element of Part V The Union's external action. The two former expressions of this article 216 (2) TFEU, however, where classified under a Part Six : General and final provisions. With the entering into force of the Treaty of Lisbon in 2009, the Union has taken the responsibility of an external action, thus expressing its intention to operate in the international legal system under its own rules.(7)

8. An exegetic perspective reveals a growing independence of the requirement enshrined in the articles 228 (2) TEEC, 228 (7) TEC and 216 (2) TFEU. While the article 228 (2) TEEC explicitly mentions “the conditions hereabove”, the article 228 (7) TEC refers only to the article 228 itself. The scope of attention is thus reduced, concentrating the operative effect of the requirement on a precise article. The article 216 (2) TFEU does not even hint at a provision of the Treaty, it operates by its own terms. This independence is consistent with the authoritative intention unveiled by the systematic approach.

9. The provision of the article 216 (2) TFEU is clear. There is no opt-in system for international agreements concluded by the Union as it is often the case for international agreements concluded under the framework of the Council of Europe. Also, if the article is respected, in no way Member States can put forth some reserved competencies to exclude being bound by an agreement concluded by the Union. This possibility exists notably in Germany's federal system.(8)

10. Regarding international agreements concluded by the Union, the supreme authority rests in one centre, the Union. The article 216 (2) TFEU offers a unitary solution in relation to these international agreements.(9) This has been the constant solution defended by the Court of Justice of the European Union (CJEU) throughout its contribution to defining the specificities of the EU.

3 The Court of Justice's proactive contribution to the independence

3.1 The case Van Gend en Loos

11. In 1963 the CJEU started the foundation of its remarkable contribution to the construction of the Union. In the case Van Gend en Loos, the Court affirmed :
“that the Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights and the subjects of which comprise not only Member States but also their nationals. Independently of the legislation of Member States, Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which arise not only where they are expressly granted by the Treaty, but also by reason of obligations which the Treaty imposes in a clearly defined way upon individuals as well as upon the Member States and upon the institutions of the Community.”(10)

12. The Court based its affirmation on international law to highlight the principle of direct effect of European Union (EU) law. This is not surprising considering that the conditions of the direct effect of international law had already been identified. These are twofold. A rule, stemming from international law, is deemed as having a direct effect if a subjective and an objective element can be identified.(11) The subjective condition was clarified by the Permanent Court of International Justice in 1928.(12) It requires a clear will of the contracting parties to give a direct effect to the provisions of the concluded agreement. The objective condition necessitates that the rule be precise enough for not having to be supplemented by implementing measures.

3.2 The case Costa v Enel

13. The reference to international law in Van Gend en Loos was not satisfying in order to define the specificity of the Union, particularly as regard to its place in the international legal order. The Court progressively rid its reasoning of that reference.(13) In 1964, it exposed the principle of EU Law primacy in Costa v Enel stating that :
“By creating a Community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the States to the Community, the Member States have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves.”(14)
The reference to “international law”, as the overarching order, had become a suggestion of the “international plane”, on which the Union could operate.

14. Without the sheltering tenets of Van Gend en Loos and Costa, EU law would not have had any autonomy or specificity with respect to the existing legal orders, international law and national laws of the Member States.(15) Those tenets were the first steps to distinguishing the full independence of the Union as exemplified by the article 216 (2) TFEU.

15. In 2014, five years after the entering into force of the Treaty of Lisbon, the European Union is giving effect to the independence it has gained since 1957. It is about to conclude the Comprehensive Economic and Trade Agreement (CETA) with Canada.(16) This agreement will be “the first free trade agreement between the European Union and a G8 country”.(17) At the same time, the EU is negotiating the Transatlantic Trade and Investment Partnership (TTIP) with the United States.(18)

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SOURCES

(1)Author's translation from French. ROSAS, Allan, LEVITS, Egils, BOT, Yves. Avant propos. In La Cour de Justice et la Construction de l’Europe: Analyses et Perspectives de Soixante Ans de Jurisprudence. The Hague : T.M.C Asser Press, 2013, p. vii

(2)Traité instituant la Communauté Économique Européenne. . 1957. Disponible sur : http://eur-lex.europa.eu/legal-content/FR/TXT/PDF/?uri=CELEX:11957E/TXT&from=EN (Consulté le 25.06.2014)

(3)'Europe without frontiers' (Europa) <http://europa.eu/about-eu/eu-history/1990-1999/index_en.htm> accessed 25 June 2014

(4)Consolidated version of the Treaty establishing the European Community. OJ C 224/77

(5)'Europe without frontiers' (Europa) <http://europa.eu/about-eu/eu-history/2000-2009/index_en.htm> accessed 25 June 2014

(6)Consolidated version of the Treaty on the Functioning of the European Union. OJ C 115

(7)'Europe without frontiers' (Europa) <http://europa.eu/about-eu/eu-history/2000-2009/index_en.htm> accessed 25 June 2014

(8)Geiger, Rudolf, Grundgesetz und Völkerrecht : mit Europarecht; die Bezüge des Staatsrechts zum Völkerrecht und Europarecht; ein Studienbuch, 6. Aufl., München, 2013. S. 120-121

(9)Daniel Greenberg (ed), Jowitt's Dictionary of English Law  (via Westlaw UK, 3rd edn, Sweet & Maxwell 2010) Unitary State

(10)Case 26/62 Van Gend en Loos v Nederlandse Administratis Der Belastingen

(11)DUTHEIL de la ROCHÈRE, Jacqueline. L’effet direct des accords internationaux. In La Cour de Justice et la Construction de l’Europe: Analyses et Perspectives de Soixante Ans de Jurisprudence. The Hague : T.M.C Asser Press, 2013, p. 640

(12)Ibidem

(13)BLANQUET, Marc. Leçon n°1 : Introduction . In : Cours : Droit général de l'Union Européenne : l’ordre juridique de l'Union Européenne. Université Numérique Juridique Francophone, 2013 . p. 2

(14)Case 6/64 Costa v Enel

(15)DUTHEIL de la ROCHÈRE, Jacqueline. L’effet direct des accords internationaux. In La Cour de Justice et la Construction de l’Europe: Analyses et Perspectives de Soixante Ans de Jurisprudence. The Hague : T.M.C Asser Press, 2013, p. 638

(16)Alain-Patrick Umucyo, 'TTIP : The United States have to be patient' (Wikinut, 06 January 2014) <http://news.wikinut.com/The-United-States-have-to-be-patient/3gvfdceb/> accessed 26 June 2014

(17)‘EU and Canada strike free trade deal’ (Press release European Commission 18 October 2013) <http://trade.ec.europa.eu/doclib/press/index.cfm?id=973> accessed 06 January 2014

(18)Alain-Patrick Umucyo, 'TTIP : The United States have to be patient' (Wikinut, 06 January 2014) <http://news.wikinut.com/The-United-States-have-to-be-patient/3gvfdceb/> accessed 26 June 2014

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