History of European Union – EU Law

Introduction Through discussion and critical analysis of key developments of the European Union I will show the growth and development of this entity from an economically focused project into the supranational entity involved in the areas of economics, social and political affairs we see today.

I will start my essay with the Treaty of Rome which established the European Economic Community, I will then progress to The Merger Treaty, the troubled decades of the 1960s and 1970s where the EEC faced growth and division, The Single European Act and then lastly The Maastricht Treaty which created a new entity, known as The European Union, a new citizenship for all Member State citizens and laid the foundations for a new currency, The Euro. The Treaty of Rome (TEEC) – Building On Cooperation.

On March 25th 1957 the ‘Treaty establishing the European Economic Community’ (TEEC) or ‘Treaty of Rome’ was signed along with a treaty establishing the European Atomic Energy Community (Euratom). The six participants of the European Coal and Steel Community (ECSC) building on the progress and co-operation of the ECSC opted to form a new entity, which would reduce customs tariffs and create a common market for workers, goods, capital and services within this Community.

A ‘European Commission’ would also be created, originating from the High Authority of the ECSC the European Commission received the responsibility to propose legislation, implement decisions and manage the day-to-day operations of the Community. A European Court of Justice would also be established. The Treaty declared in its preamble that the signatories were “determined to lay the foundations of an ever closer union among the peoples of Europe. ” The overall aim of the Treaty was the creation of a single trading entity, within which any obstacles to free trade would be eliminated over time1.

Article 2 of the 1957 Treaty provided “The Community shall have as its task, by establishing a common market, to promote throughout the Community a harmonious development of economic activities. ” As Ward notes ”The Community was created to make money. 2” Article 2 talks of “continuous and balanced expansion”, the Treaty of Rome did not create the finished article of a European Community, it was just a blueprint which laid the foundations upon which such an entity could be constructed.

Article 7 stated that the common market would be established over a transitional period of twelve years but due to a practice of only adopting measures passed unanimously (which I will cover later) this target was not met. The Single European Act (S. E. A. ) of 1986 set a new target date later on of 1992. Article 3 stated that the Community aimed to eliminate customs duties and quantitative restrictions on imports and exports between Member States.

The Treaty declared it’s intention to abolish any obstacles preventing the freedom of movement of people, goods, services and capital within Member States. The Treaty of Rome established freedom of movement for “workers” who are citizens of a Member State. Workers are entitled to be treated equally with the same rates of remuneration and working conditions. While it is obvious that a quota system which caps import levels between Member States would be a breach of the Treaty of Rome the ECJ has regularly employed the concept of measures equivalent to a quantitative restriction (MEQR).

In Dassonville3 the “All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade. ”. As McDermott4 notes the broadness of the EU’s interpretation can create problems for Member States as seen by the case of Commission v Ireland (Buy Irish)5 in which the Irish Government launched a ‘Buy Irish’ campaign to encourage Irish consumers to buy domestically-produced goods. The ECJ argued that this was a breach of Article 28 regarding quantitative restrictions and any measures of similar nature.

Even though the ECJ accepted Article 28 only applied to state actions the fact that the Board set up to promote the campaign was financed and it’s board members appointed by the State meant there was state involvement. This case shows that Member States are extremely limited in how they may promote domestic produce. The Treaty of Rome lead to the creation of the Common Agricultural Policy (CAP) which was created to provide subsidies and price guarantees to European farmers. Member States could no longer provide separate direct support for their agricultural sectors.

One might argue that CAP is contradictory to the Community’s free trade principles which discourage state intervention. Described in Articles 32 to 38 the CAP was developed to protect a failing and obsolete French agricultural sector which if subjected to the EU’s general idea of competition would have been severely damaged. Many experts claim CAP was created in a Treaty of Rome trade-off between France and West Germany whereby West German industry gained access to the French market and in return West Germany contributed to French farmers via CAP6.

CAP has been heavily criticised since it’s creation for it’s huge costs (in the 1970s CAP accounted for 70% of the EEC budget) today it still is the largest expense on the EU budget at a cost of €57. 5 billion euros in 20137. Critics have alleged CAP prevents farmers in developing countries from exporting to Europe on a even playing field, helps give European farmers unfair advantage in developing markets8 while CAP-set targets on food production have exceeded market demand resulting in cases of over-supply and so called “butter mountains” and “milk lakes”9.

The Treaty of Rome established the European Economic Community and in that had a particular focus on economic issues. The Treaty did not expressly make reference to human rights. The European Convention on Human Rights separately came into force on September 3rd 1953 and all EEC founding members were signatories. The case of Geitling v High Authority10 shows the ECJ rejected the argument that EEC law might give some protection to rights contained in the German constitution. The ECJ stated Community law “does not contain any general principle…

guaranteeing the maintenance of vested rights. ” It was not until Stauder v City of Ulm11 that ECJ case law recognized that fundamental human rights were enshrined in the principles of EEC law. In the 1974 case of Nold v Commission12 the ECJ also held that international treaties for the protection of human rights (ECHR) of which Member States have collaborated on or are signatories of can supply guidelines (be persuasive) and should be followed within the framework of Community law. It took nearly twenty years for the ECJ to make detailed reference to the European Convention.

One of the main criticisms brandished upon the Treaty of Rome is as Ward13 puts it the argument that it is a “negative treaty” with more emphasis on preventative measures rather than creating positive developments or alternatives. The Merger Treaty, Expansion and Stagnation – Growing Pains The 1960s and 1970s were periods of dispute and stagnation over the future direction of the European Economic Community. During the 1960s a global economic crisis ensued which damaged feelings of European camaraderie and encouraged Member States to look after their own affairs.

Meanwhile, French President Charles De Gaulle wished to create a political entity above the EEC to reassert France’s power in Europe. The Dutch meanwhile vigorously objected to the plan with the other EEC members believing that De Gaulle’s France was attempting to reduce American and British influence in Europe14. While the Dutch favoured Great Britain joining the EEC De Gaulle objected believing this would increase NATO influence in Europe. De Gaulle favoured Intergovernmentalism (that the majority of power would lie with member states) rather than the theory of Supranationalism which spawned from the arrival of the EEC.

In July 1965 tensions came to height when the EEC sought increased powers and De Gaulle boycotted all European Institutions. The crisis was resolved in January 1965 however as Chalmers notes “… in a way that would cast a shadow over the development of the EEC for the next twenty years15. ” A Member State by raising “very important interests” before a Council vote enabled the vote to be not taken, a defacto-veto. This issue was then abused repeatedly by Member States to serve their own goals and subsequently made it incredibly difficult for the EEC to pass legislation of any substance.

Despite this the Merger (Brussels) Treaty was agreed in 1965 which merged the executive bodies of the ECSC, EEC and Euratom into a single structure, the three Communities shared the same institutions, although they were legally independent and separate. One of the most significant European Law cases to date occurred in 1963 with “Van Gend en Loos v Nederlandse Administratie der Belastingen16”creating the principle of Direct Effect. Developing from a import tariff which Van Gend en Loos argued was in breach of Article 12 of the Treaty of Rome and the ECJ found Article 12 to be directly effective thus giving personal rights to Van Gend en Loos.

As the 1970s approached the United Kingdom, a former imperial power, was struggling economically, low economic growth was being offset by spiraling inflation and Great Britain enjoyed half the economic growth rate of EEC members France and West Germany. The poor financial climate coupled with the continued loss of it’s imperial outposts required the UK to take action. After the departure of De Gaulle in 1969 the UK successfully applied to enter the EEC for the third time. Denmark and Ireland followed suit as their economies were heavily linked to Britain.

The accession of Britain to the EEC dramatically boosted it’s profile on the world stage while also creating another entity to offset the control of France and West Germany within the organisation. Greece followed Britain in 1981 giving the EEC a strategic location on the Aegean Sea during the height of the Cold War17. Disputes over Spain’s large agricultural sector and how it might effect the French agri-sector delayed Spanish and Portuguese assession to the EEC and this was not completed until 1986. While these expansions often focused on economic benefits they were also major movements for Europe politically.

Greece, Spain and Portugal by abandoning totalitarian governments and embracing European democracy strengthened Western Europe during the cold war crisis and acted as models for how communist states could be integrated in the Community should the USSR and Warsaw Pact collapse. In 1970 the case of Handelsgesellsschaft18 the Court ruled for the first time that EEC law took precedence over all types of national law, including constitutional laws. In June 1979 in a boost to the EEC’s democratic credentials the European Parliament held direct elections for the first time. Single European Act (S. E. A.) – Getting Back On Track In 1957 the European Economic Community set itself the task of creating a Community with a common market consisting of four freedoms.

However, by the 1980s this task was still far from complete. A key component missing to achieve this market was the harmonization of (then) Community laws. Harmonizing standards would enable goods, services, people and capital to move more freely. This was a controversial idea and Member States feared how high standards would be set and it seemed likely that getting these reforms passed unanimously as the EEC required would be near impossible.

In 1985 with Europe emerging from recession the European Commission produced the Single Market White Paper which proposed the adoption of 300 measures to deal with physical, technical and fiscal barriers to trade. However to achieve these reforms serious change was needed and thus the first major revision of the EEC Treaty was proposed, to be called the ‘Single European Act’ or ‘S. E. A. ’. From examination of the S. E. A. it seems focused on resolving two major problems, the first of governance and the second, implementing the recommendations of the White Paper.

The S. E. A. replaced the notion of the ‘common market’ with the ‘internal market’. The Court stressed in the case of Titanium Dioxide19 that the concept of the internal market calls for a wide interpretation. It is not clear whether this implies that the Community’s competence to harmonize national legislation gives EU Institutions a freedom to harmonize nearly ever single area which would directly or indirectly effect the achievement of an internal market. The S. E. A. noted the internal market as “an area without internal frontiers” and required it to be completed by December 1992.

The S. E. A. under Article 100A allowed for the use of qualitative majority voting (QMV) for measures whose object was “the establishment and operation of the internal market”, skeptics could indeed argue that QMV was only afforded to activities which would generate cold hard cash and not issues of principle. This rapidly sped up the implementation of the recommendations made in the 1985 White Paper while at the same time giving more weight to supranatural decisions as the acts did not have to be edited to ensure every Member State agreed as Member States could no longer threaten to use the “very important interests” card to derail actions.

While the Treaty of Rome didn’t expressly mention Human Rights the Single European Act does mention the issue in it’s preamble. Member States agreed: “… to work together to promote democracy on the basis of the fundamental human rights recognized in the constitutions and laws of the member states, in the Convention for the Protection of Human Rights and Fundamental Freedoms and the European Social Charter, notably freedom, equality and social justice. ”

While this is express recognition it is also this writer’s opinion that this reference to Human Rights is vague, it is indeed aspirational and when the S. E. A. is examined in it’s entirety nothing is said of how the above will be implemented. As Kaczorowska20 notes the S. E. A. made several improvements to European Institutions which pushed the EEC in a federal direction but indeed also increased it’s democratic legitimacy. The S. E. A. created the Court of First Instance to ease the amount of work given to the European Court of Justice. Title 3 of the S. E. A.

declared that Member States would jointly endeavor to create a uniform European foreign policy, a precursor to the Common Foreign and Security Policy (CFSP) which would be created by the future Maastricht Treaty. The Maastricht Treaty (T. E. U. ) – New Ideas For A New Europe Following the collapse of the Soviet Union (1989) and the unification of Germany (1991), Europe went through an astonishing transformation in terms of it’s size, agenda and governance. A further commitment to the Community was needed to complete the Internal Market with a new united Germany at it’s heart.

Signed on February 7th 1992 the Maastricht Treaty (Formally Treaty on European Union or T. E. U. ) created a new entity known as the European Union (EU) at a time when EPU (European Political Union) and EMU (Economic Monetary Union) were the two key sources of debate. While some sources praise Maastricht as the foundation of the Euro and as a treaty which developed the ‘democratic’ nature of the European Community, critics also point to Maastricht as the source of Europe’s current financial woes. The pursuit of a European Monetary Union was a serious bane of contention leading up to the agreement at Maastricht.

As Dinan notes in ‘Ever Closer Union’21 Dutch finance minister Wim Kok favoured a two-speed EMU system with any six Member States who met specific criteria regarding inflation, budget deficits and interest rates could go ahead and form a single currency and central bank. However all other Member States (excluding Germany) rejected Kok’s proposal feeling it would create an ‘under-class’ of EC members. A consensus soon emerged that the EC should collectively advance to Stage 3 of the EMU process and establish a single currency, despite clear facts that many countries were not economically ready to do so.

The treaty resolved that the third stage of the EMU which would create a single currency would be created by 1999 at the very latest. The Maastricht Treaty laid down Convergence Criteria which set fiscal requirements for Member States to enter the 3rd Stage however despite Greece not meeting criteria22 initially it appealed and was eventually accepted into the EMU. This writer wonders in this time of Eurozone Crisis how better off Europe and indeed Greece would be had the criteria contained in Maastricht been more rigid and enforced? If Greece had failed to meet criteria could the current economic crisis effecting Europe been mitigated?

Another major development which took place in the Maastricht Treaty was the introduction of the status of EU Citizenship for all Member State citizens. By granting to every citizen the right to move and live within the territory of the Member States, the Treaty recognized “the essential role of individuals, irrespective of whether or not they are economically active, within the newly created Union23. ” The Maastricht Treaty established three pillars which formed the European Union. The first being the existing European Community, the second a Common Foreign and Security Policy (CFSP) and Justice and Home Affairs (JHA).

The CFSP pillar involved a common, agreed foreign policy for the European Union in the areas of security, defence and diplomacy. Questions over how CFSP would operate divided Member States when negotiating with Ireland and Britain favouring unanimity in decision-making (Britain to protect it’s sovereignty and Ireland to protect it’s neutrality). At the same time war in the former Yugoslavia highlighted the need for a more unified European foreign policy, inaction on Europe’s part to resolve a war effectively in it’s ‘back yard’ lead to an eventual NATO-led intervention and the deaths of over 250,000 people through bombings and genocide.

Critics slammed the European Community saying it “fiddled at Maastricht whilst Sarajevo began to burn24. ” Today, the European Union has established ‘Battlegroups’ consisting of soldiers from EU Member States to quickly prevent any re-occurrence of what happened in the Adriatic. Maastricht aimed to address the supposed lack of Human Rights recognition in EU law. Article 6 states that “The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to member states.

’However it was not until the arrival of the Amsterdam Treaty that the EU gave teeth to it’s Human Rights principles with the power to suspend the voting rights of a Member State found engaging in serious and persistent violations of the Union’s fundamental principles. Despite Maastricht covering the areas of human rights and citizenship the expression “democratic deficit”25 became a common byword for how the European Community operated as many viewed it as a body which suffered from a lack of democracy and seemed to be inaccessible to the average citizen.

One could argue this sense of disconnect between the Institutions of the Community and the citizenry continues to this day. Conclusion As an entity the European Union has changed with the Europe it exists in, since it’s predecessor in 1957 first declared the four freedoms the EU has grown in strength leading to a peaceful and relatively prosperous Europe which we as EU citizens enjoy today. In it’s composition it has evolved from a economic tool for growth to a full-blown Political, Social and Economic force. Freedom to trade goods, services and capital has turned former foes into close allies.

Criticism for it’s supposed lack of human rights protection have been addressed over the decades as it moved away from being purely economically focused. The launch of a single currency (while also possibly a source of the current economic difficulty) is a unifying factor for millions of European citizens. The question now arises of where next for this entity? Bibliography Academic Commentary James McDermott, ‘Free Movement Of Goods’ in Mary Catherine Lucey and Cathrina Keville Irish Prospectives on EC Law (Thomson Round Hall 2003)

Kevin Featherstone, ‘Jean Monnet and the democratic deficit in the European Union’ (1994): 32 (2) Journal of Common Market Studies Ruiz Zambrano (Case C-24/09) (Opinion of Advocate General Sharpston, 30 September 2010), para. 67 Books A Kaczorowska, European Union Law (3rd edn, Routledge, 2013) B Carolan, EU Law for Students in Ireland (2nd edn Gill & Macmillan 2009) D Chalmers, G Davies and G Monti, European Union Law (2nd edn, Cambridge 2010) D Dinan, Ever Closer Union (2nd edn, Palgrave 1999) D Swann, The Economics of Europe (2nd edn Penguin 2000) 232

P Spaak, A New Effort To Build Europe (Foreign Affairs 1965) I Ward, A Critical Introduction to European Law (3rd edn Cambridge 2009) T Garton-Ash, Free World: Why A Crisis of the West Reveals the Opportunity of Our Time (2004 Penguin) Case Law Commission v Council (Titanium Dioxide) Case 300/89 [1991] ECR 2867. Commission v Ireland (Buy Irish) Case 249/81 [1982] ECR 4005. Geitling v High Authority Cases 36, 37, 38 and 40/59, [1960] ECR 423. Handelsgesellsschaft Case 11/70 [1970[ ECR 1125. Nold v Commission Case 4/73, [1974[ ECR 491, [1974] 2 CMLR 338. Procureur du Roi v Dassonville [1974] ECR 837, 852.

Ruiz Zambrano (Case C-24/09) (Opinion of Advocate General Sharpston, 30 September 2010), para. 67. Stauder v City of Ulm Case 29/69, [1969] ECR 419, [1970] CMLR 112. Van Gend en Loos Case 26/62 [1963] ECR 1. Online Articles BBC, “Reform of EU Farm Policy” http://www. bbc. co. uk/news/world-europe-11216061 accessed 10 November 2013. The Telegraph, “EU Butter Mountain to return” http://www. telegraph. co. uk/news/worldnews/europe/eu/4316726/EU-butter-mountain-to-return. html accessed 10 November 2013. Trocaire, “Does CAP Damage Less Developed Countries? ” http://www. trocaire. org/resources/tdr-article/does-common-agricultural-policy.