The European Union has existed for over half a century. Having started as the 'Europe of the Six' in a specific industrial sector, the Union today has twenty-seven Member States and acts within almost all areas of social life. The Union's constitutional structures have evolved in parallel with this immense growth. Born as an international organisation, the Union has developed into a constitutional Union of States. This textbook analyses the constitutional law of the European Union after Lisbon in a clear and structured way. Examining the EU through a classic constitutional perspective, it explores all the central themes of the course: from the history and structure of the Union, the powers and procedures of its branches of government, to the rights and remedies of European citizens. A clear three-part structure and numerous illustrations will facilitate understanding. Critical and comprehensive, this is required reading for all students of European constitutional law.

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European Constitutional Law

Book synopsis: Treaty making is a site of struggle between those who claim the authority to speak and act on the international stage. The European Union (EU) is an important test case in this respect because the manner in which the Union and its member states make treaties has shifted significantly over the last six decades. Drawing insights from EU law, comparative constitutionalism and international relations, this book shows how and why parliaments, the people and courts have entered a domain once dominated by governments. It presents qualitative and quantitative evidence on the importance of public trust and political tactics in explaining this transformation of EU treaty making and challenges the idea that EU treaties are too rigid. Analysing legal developments in the EU and each of its member states, this will be essential reading for those who wish to understand the EU's controversial experiment in treaty making and its wider significance.

The Transformation of EU Treaty Making: The Rise of Parliaments, Referendums and Courts since 1950

This paper investigates the approaches to the recent Kadi case taken by both the Court of First Instance and the Advocate General and asks whether the European Court of Justice made the right choice with regard to the case’s implications for the relationship between European and international law. It argues that the Court’s judgement of 3 September 2008 in Kadi is to be welcomed, also from an internatio-nal perspective. It rightly rejected the approach presented by the Court of First Instance, which, albeit stressing the importance of the UN Charter, ultimately turned out to be a ‘false friend’ of international law. By largely following the Advocate General’s Opinion, the Court maintained the integrity and the superior human rights standard of the EU legal order. Without jeopardizing the compliance of the Member States with their UN Charter obligations right away, it sent a clear warning signal to the United Nations Security Council to exhaust its potential for reform of the targeted sanction regime to the fullest. The Court showed that in an interdependent world of multilevel governance, the different components cannot ‘pass by each other like ships in the night’. In the face of threats like global terrorism like the threat of terrorism as well as undue curtailing of human rights, we are all in the same boat together after all.

Two Ships in the Night or in the Same Boat Together? Why the European Court of Justice Made the Right Choice in the Kadi Case. College of Europe EU Diplomacy Paper 03/2009, June 2009

This paper investigates the approaches to the recent Kadi case taken by both the Court of First Instance and the Advocate General and asks whether the European Court of Justice made the right choice with regard to the case’s implications for the relationship between European and international law. It argues that the Court’s judgement of 3 September 2008 in Kadi is to be welcomed, also from an international perspective. It rightly rejected the approach presented by the Court of First Instance, which, albeit stressing the importance of the UN Charter, ultimately turned out to be a ‘false friend’ of international law. By largely following the Advocate General’s Opinion, the Court maintained the integrity and the superior human rights standard of the EU legal order. Without jeopardizing the compliance of the Member States with their UN Charter obligations right away, it sent a clear warning signal to the United Nations Security Council to exhaust its potential for reform of the targeted sanction regime to the fullest. The Court showed that in an interdependent world of multilevel governance, the different components cannot ‘pass by each other like ships in the night’. In the face of threats like global terrorism as well as undue curtailing of human rights, we are all in the same boat together after all.

Two Ships in the Night or in the Same Boat Together? Why the European Court of Justice Made the Right Choice in the Kadi Case

Defining competences in EU law has always been problematic, notwithstanding the inclusion since the Treaty of Maastrict of the principle of conferred powers as central to the constitutional character of the EU. Under the principle of conferral, the Union only has those powers actually conferred by the Treaties. However, the concepts of a common market or of 'ever‐closer Union' have a conceptual scope that potentially, in effect, negates the principle of conferral. This article argues that the framework of norm conflict offers conceptual insight into the dynamics of determining and limiting EU competence. In particular, it draws on the distinction between lex specialis and lex generalis to understand different ways of treating competence norms in legal reasoning. Following a discussion of the concept of competence norms, this conceptual framework is applied to two cases studies: (1) on the right to strike and (2) the general law of external relations.

Conflicts of Competence Norms in EU Law and the Legal Reasoning of the ECJ

There is widespread agreement about the fact that the European Community is a highly complex legal system situated outside the mainstream of public international law. Nobody would deny that Community law forms an ‘autonomous legal order’ in the sense proposed by Sorensen, but then, that characteristic is shared by many other international organisations. Yet, many authors, among which are the majority of specialists in EC law, go far beyond this and argue that EC law is situated outside the ‘system of international law’ altogether. Although seemingly anchored in international law (as it was created by an international treaty) the European Community has been drifting into uncharted waters. It is often considered to be a ‘ sui generis ’ organisation, no longer part of international law though not yet a (federal) State on its own. The European Court of Justice, for its part, has never stated in so many words that EC law is entirely outside the scope of public international law, but some of its dicta seem to point in that direction.

https://www.cambridge.org/core/services/aop-cambridge-core/content/view/9E01A877D0E0581BDDBB1C2DEA2395A3/S0167676800000258a.pdf/div-class-title-rules-of-change-in-international-law-how-special-is-the-european-community-a-href-fn01-ref-type-fn-a-div.pdf

B. de Witte

Papers

Rules of change in international law: how special is the European Community?