ii EUROPEAN UNION LAW ii
WAKE FOREST UNIVERSITY
School of Law
COMPARATIVE LAW PROGRAM
Venice, Italy
Summer 2007
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PART II (The Blue Book)
EUROPEAN UNION LAW
SYLLABUS AND
COURSE MATERIALS
Professor Alan R. Palmiter
© 2007
ii SYLLABUS ii
EUROPEAN UNION LAW
Professor Alan Palmiter Summer 2007
Day 01 - Monday, July 9
I. EUROPE: THE BASICS
“United States of Europe”
Prologue (Sleeping Through Revolution) 2
Chapter 1 (Atlantic Widens) 4
Chapter 2 (Peace and Prosperity) 13
Chapter 6 (European Social Model) 26
Appendix (Inside the Belgeway) 41
Questions 47
EU Member Countries 48
Day 02 - Tuesday, July 10
II. FUNDAMENTAL RIGHTS IN THE EUROPEAN UNION
A. Supremacy Principle
Costa v. ENEL (ECJ 1964) 49
Administrazione delle Finanze dello Stato v. Simmenthal
(Simmenthal II) (ECJ 1978) 51
Notes 52
B. Grounds for Challenges of European Institutions: Fundamental Rights
Treaty on EU and EEC (Articles 173-175) 53
Lenaerts, Respect for Fundamental Rights as a Constitutional
Principles of the European Union 54
1. Sources of fundamental rights
J. Nold, Kohlen-und Baustoffgrosshandlung v. Commission
(ECJ 1974) 57
Internationale Handelsgesellschaft mbH v. Einhur-und Vorratsstelle
fur Getreide (ECJ 1972) 57
Notes 61
2. Proportionality
Bela-Muhle Josef Bergmann KG v Grows-Farm GmbH & Co.
(Skimmed-Milk Case) (ECJ 1978) 62
Walter Rau lebensmittelwerke v De Smedt PVBA
(ECJ 1974) 63
Notes 63
3. Reasoned basis
Germany v. Commission
(Brennwein Case) (ECJ 1962) 64
Notes 66
4. Equal protection
Royal Scholten-Honig (Holdings) Ltd v. Intervention Board for
Agricultural Produce (First Isoglucose Case) (ECJ 1979) 66
Notes 67
C. European Court of Human Rights
Historical background, organization and procedure 68
Dudgeon v. United Kingdom
(ECHR 1981 72
Day 03 - Wednesday, July 11
III. INCORPORATION OF EU NORMS INTO NATIONAL LAW
A. Direct Effects of EU Law
1. Direct applicability of EU treaty provisions
Introductory Questions 79
Treaty on EU and EEC (Article 177) 79
van Gend en Loos v. Nederlandse Adm der Belastingen
(ECJ 1962) 80
Notes 82
Costa v. ENEL
(ECJ 1964) 83
Defrenne v. SABENA
(ECJ 1976) 85
2. Direct applicability of EU directives
Treaty on EU and EEC (Article 189) 87
Introductory Questions 88
van Duyn v. Home Office
(ECJ 1974) 88
Notes 91
Pubblico Ministero v. Ratti
(ECJ 1979) 92
Notes 93
Marshall v. Southampton Area Health Authority
(ECJ 1986) 93
Notes 95
Marleasing SA v. La Comercial Internacional de Alimentacion SA
(ECJ 1990) 95
Notes 96
B. Enforcement of EU norms
Van Colson v. Land Nordhein-Westfalen
(ECJ 1984) 97
Francovich & Ors. v. Italian Republic
(ECJ 1991) 98
Notes 100
Day 04 – Thursday, July 11
IV. ROLE OF EUROPEAN COURT OF JUSTICE
G. Federico Mancini, The Making of a Constitution for Europe,
26 Common Market Law Review 595 (1989) 101
Notes 109
G. Federico Mancini & David T. Keeling, Language, Culture and
Politics in the Life of the European Court of Justice,
1 Colum. J. Euro. L. 397 (1995) 110
1 EUROPEAN UNION LAW 1
I. THE EUROPEAN UNION: THE BASICS
This is an introduction to the law of the European Union. It begins with an American’s look at the emerging, unified Europe. The readings from The United States of Europe provide a snapshot of the changes happening in Europe (before the recent rejection of the proposed EU Constitution), the perceptions that many Europeans have of the United States, a short history of the origins of the European Union, a description of the European “social model” of government, and finally an overview of the European Union’s governance structure.
These readings thus provide a “civics” nutshell of the motivations, history and government of the European Union. They anticipate further readings on the basics of European Union law – the supremacy principle, judicial review of EU institutional actions, the European Court of Human Rights, the incorporation of EU law into national law, and the past and future of the EU constitution.
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THE UNITED STATES OF EUROPE (2004)
The New Superpower and the End of American Supremacy
T. R. REID
PROLOGUE
Sleeping Through the Revolution
At the dawn of the twenty-first century, a geopolitical revolution of historic dimensions is under way across the Atlantic: the unification of Europe. Twenty-five nations have joined together – with another dozen or so on the waiting list to build a common economy, government, and culture. Europe is a more integrated place today than at any time since the Roman Empire. Americans have largely ignored this European revolution. Like one of those heavy, powerful SUVs that Detroit turns out, the United States has been cruising along at a comfortable speed, completely unaware of the well-engineered European sedan coming up fast in the passing lane. It's time to take a look over our shoulder. The new United States of Europe – to use Winston Churchill's phrase – has more people, more wealth, and more trade than the United States of America. The New Europe cannot match American military strength (and doesn’t want to, for that matter). But it has more votes in every international organization than the United States, and it gives away far more money in development aid. The result is global economic and political clout that makes the European Union exactly what its leaders want it to be: a second superpower that can stand on equal footing with the United States.
Since it was born, in the rubble of World War II, the vision of a united Europe has grown dramatically from a coal-and-steel trading arrangement to a "common market" to a "community" to today's European Union, a new kind of state in which the member nations have handed over much of their sovereignty to a transcontinental government in a community that is becoming legally, commercially, and culturally borderless. The EU, with a population of nearly half a billion people stretching from Ireland to Estonia, has a president, a parliament, a constitution, a cabinet, a central bank, a bill of rights, a unified patent office, and a court system with the power to overrule the highest courts of every member nation. It has a 60,000-member army (or "European Rapid Reaction Force," to be precise) that is independent of NATO or any other outside control. It has its own space agency with 200 satellites in orbit and a project under way to send a European to Mars before Americans get there. It has a 22,000person bureaucracy and an 80,000-page legal code governing everything from criminal trials and corporate taxation to peanut butter labels and lawn mower safety.
In pursuit of economic union, Europeans have thrown their marks, francs, lira, escudos, drachma, and so on into history's trash can and replaced them all with the new common currency, the euro, a form of money that has more daily users than the U.S. dollar. At the end of the twentieth century, the strong U.S. dollar reigned supreme. Four years into the new century, the young upstart, the euro, ranks as the world's strongest currency. In the first three years after it hit the streets of Europe, the common currency rose more than 50 percent in value against a struggling dollar. Europeans want to see the euro replace the dollar as the world's reserve currency – a development that would cost the United States a pretty penny . But Europe's new money is more than money. It is also a political statement – a daily message in every pocket that cooperation has replaced conflict across the continent.
To forge a physical linkage that enhances their political and economic union, Europeans have invested hundreds of billions of those euros in an ambitious network of bridges, tunnels, ports, and rail lines. Most of the continent has done away with customs and immigrations controls. When I drove recently from the Arctic Circle to the Mediterranean, I passed through eight countries, never saw a border guard, and never had to bother with foreign exchange. The New Europe has all the symbolic apparatus of a unified political entity. The citizens of the EU use a standard license plate, birth certificate, and passport (although each country still gets to pick its preferred passport color: a red cover for Britain, dark blue for Poland, and of course green for Ireland). The whole continent plays a common lottery. Europeans tune in by the tens of millions each May to watch the Eurovision song contest, a pancontinental TV extravaganza. The EU has its own flag, its own anthem, and its own national day (which is May 9, the day of the “Schuman Declaration” launching the European community effort). Europe's new constitution even establishes an official EU motto: "Unity in diversity," or "Unite dans la diversity," or "In varietate concordia," and so on in three dozen languages.
At first glance, the disagreements in 2003 surrounding the Iraq war seemed to expose more diversity than unite in Europe. In fact, the dispute over Iraq turned out to be another powerful unifying force for Europeans, particularly for the largely borderless young people known as Generation E – people who consider themselves not Spaniards or Czechs but rather Europeans who happen to be living in Toledo or Prague. No matter what their prime ministers said about the war, large majorities of the population in every European state opposed the American-led effort. The war enhanced the growing feeling across the continent that Europe and America are fundamentally different places – and that Europeans need to stick together to confront the behemoth across the Atlantic. Among diplomats and scholars who study the transatlantic relationship, the concept of a united Europe standing as a superpower to match the United States is taken so seriously that the idea has a name of its own: the "counterweight thesis," or the "countervailing power thesis." Naturally, this theory is more popular in Europe than in the United States. And it is not just Europe's professional America-bashers – a fairly large category on the continent these days – who see the EU as a counterweight to U.S. dominance. At one of the union's endless summit meetings – the one where the Finnish and Italian prime ministers argued bitterly for two days whether the European Food Agency should be headquartered in Helsinki or in Parma – I went up to Britain's prime minister, Tony Blair, the closest U.S. ally in Europe. I asked him whether these long, wordy sessions around the conference table were worthwhile.
"They do go on a bit," Blair said. He sounded bored and weary. But then, as he got talking about the prospects for the EU's future, he came to life. "You know, these summits makes sense if you try to have a sense of history. I mean, when the thing is getting tiresome, you have to remember what we are doing here. We are building a new world superpower. The European Union is about the projection of collective power, wealth, and influence. That collective strength makes individual nations more powerful – and it will make the EU as a whole a global power.
"Look – the United States is plainly the superpower of the world today," Blair continued, now rising to his rhetorical finish. "But the argument is that a single-power world is inherently unstable. I mean, that's the rationale for Europe to unite. When we work together, the European Union can stand on par as a superpower and a partner with the US. The world needs that right now.”
While this historic transformation has been taking place, Americans have been asleep. For decades the American foreign policy establishment, both Democratic and Republican, didn't seem to notice – ok, perhaps, didn't want to notice – the emergence of a new kind of political entity on the European continent. It was easier for the United States to continue dealing with familiar national governments in Paris, Rome, Madrid, and Dublin than to face up to the rapidly growing power and authority of the EU government in Brussels.
Official Washington particularly scoffed at the idea that the proud nations of Europe would jettison their traditional currencies. In 1999, Henry Kissinger opined that the euro was one of those good ideas that would not come to fruition, because the people of Europe would never accept it.
In fact, euro coins and notes did replace the national currencies of twelve European countries on New Year's Day of 2002 – the largest currency conversion in history. The changeover was carried off smoothly and successfully, with universal acceptance. A little more than three months after the conversion was completed, at a time when 350 million people were contentedly using the euro every day, I attended a lavish breakfast the meal must have cost 40 euros per person – where Kissinger spoke to a group of continental leaders. After his remarks, he agreed to take a few questions from the audience. The first questioner, predictably enough, asked "how the eminent Dr. Kissinger could explain his totally misguided prediction about the new common currency." The eminent doctor ate crow, more or less. "I am often right," he replied, "but I have never claimed to be infallible."
The American business community has also suffered – grievously, in some cases – from its failure to understand the processes, the ambition, and the sheer market power of the European Union. GE’s legendary CEO Jack Welch learned the hard way that American companies have to follow European rules these days. Because the united Europe is the world's largest trade market, it is the "Eurocrats" in Brussels, more and more, who make the business regulations that govern global industry. There's a reason why the quintessential American whiskey, Kentucky bourbon, is sold today in 75 cl bottles. It's not because American consumers suddenly demanded to sip their sour mash by the centiliter.
Sometimes Americans seem to be in a state of denial about what Europe has achieved. American presidents from both parties, for example, have repeatedly declared that the United States has "the greatest health-care system in the world." That claim is hard to support. The unified Europe has higher life expectancy, lower infant mortality, lower rates of heart disease and cancer, and health insurance that covers every person – all for about half as much per capita as the United States spends. Since the United States pays much more and gets much less in return, it might behoove American policymakers to stop bragging about their own health-care system long enough to take a look at what the EU nations have done.
The leaders and the people of the EU are determined to change a world that had been dominated by Americans. Indeed, that goal has become a powerful motivator for the New Europe – to create a United States of Europe that is not the United States of America. One clear result of the unification of Europe is that the gap between the two sides of the Atlantic Ocean is growing wider every day.