2). Institutional Changes

1. 2). Institutional Changes The TEU brought about five major institutional changes (KD, p. 13) i. Role of the EP heavily enhanced with a new procedure known as “co-decision” (Article 251 EC) ii. Parliamentary Ombudsman iii. Committee of the Regions iv. Court of Auditors v. European Central Bank

2. 3). New Areas of Competence Expansion of existing areas of competence and appearance of new areas of competence which include social policy, education vocational training and youth (TEC, Title XI), culture (TEC, Title XII), trans-European networks (TENs) in the areas of transport, telecommunications and energy infrastructures (TEC, Title XV)… KD, p. 13

3. 4). New Concepts Two concepts in particular stand out…

4. 4.1). Subsidiarity : Article 5 EC • Power-sharing mechanism of competences between the EC and the MS (in the areas of shared competences) • “… In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community Any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty”

5. Test of “Comparative Efficiency” Two ideas… 1). The Community is to take action only if the objectives of that action cannot be sufficiently achieved by the MS 2). The Community can better achieve the action because of its scale or effects “Proportionality” Test If the Community does take action, then this should not go beyond what is necessary to achieve Treaty objectives Two Tests Behind Subsidiarity

6. Subsidiarity Today • Areas of shared competence are, inter alia: the internal market, some areas of social policy, economic and social cohesion, environmental matters, transport, energy, the area of freedom, security and justice, some aspects of public health • Provision largely taken up in Lisbon TEU , Art. 5(3) • The concept of subsidiarity will be developed later

7. 4.2). Citizenship of the Union • New Part 2 inserted into the EC Treaty : Articles 17-22 EC • Illustration of the move away from the economic focus on the European being, i.e. overt political connection between the Union and the nationals of the MS • Provisions largely taken up in Lisbon TFEU, Art. 18-25

8. Article 17 EC • No transfer of status from State to European level : see Article 17(1) EC : “Citizenship of the Union shall complement and not replace national citizenship” • Is citizenship a symbolic plaything or does it have substantive content ? • Five identifiable rights

9. 4.2.1). Right of Free Movement and Residence Article 18(1) EC… EU citizens have the right to move and reside freely in the Union provided they and their families are engaged in the internal market activity and/or are financially self-sufficient

10. Supplemented By… • Directive 2004/38/EC of the European Parliament and of the Council on the right of citizens of the Union and their family members to reside and move freely within the territory of the MS, in O.J. 2004 L 158, p. 77 (http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2004:158:0077:0123:EN:PDF visited 29 September 2009) • Commonly known as the “Citizenship Directive”: entered into force on 30 April 2006 • See in particular recitals 5 and 31

11. Illustrations • ECJ, Case C-127/08, Metock and others, of July 25, 2008 (not yet reported) • Four cases that originated and were heard together by the High Court (Ireland) which stayed proceedings and referred the cases to the ECJ for a preliminary ruling (Article 234 EC)(10 States intervened) • Ruling by the Grand Chamber of the ECJ

12. i. Facts • Nationals of Africa marry Union citizens (UK, Germany, Poland) residing in Ireland. The marriages took place shortly after their arrival in Ireland; they were staying illegally in the Union at the time of their marriage • They request residence cards in Ireland which are denied by the Minister for Justice, Equality and Law Reform… • The aggrieved petitioners introduce applications for judicial review seeking inter alia an order of certiorari quashing the decisions of the Minister

13. ii. Issue Can the spouse of a Union citizen benefit from the provisions of the Directive, irrespective of when and where the marriage took place, and of the circumstances in which he entered the host MS ?

14. Arguments • On the one hand, the applicants argue that, as spouses of Union citizens, they have a right to move and reside in the Union which derives from the family relationship alone (paras. 40-42) • On the other hand, the Minister for Justice argues that MS have discretion to impose on nationals of non-member States who are spouses of Union citizens a condition of prior lawful residence in another MS (para. 45)

15. iii. Holding • The provisions of the Directive cannot be interpreted restrictively and must not be deprived of their effectiveness (para. 84) • Nationals of non-member States who are family members of a Union citizen have the right to join that Union citizen in the host MS, whether he has become established there before or after founding a family  the “prior lawful residence” (PLR) requirement is abandoned (rare overruling of an ECJ precedent : Akrich judgment of 2003)

16. Holding (Contd.) Nevertheless, due regard must be had to Art. 27 of the Directive (public safety, public security) and Art. 35 (marriages of convenience)

17. 4.2.2). Right to Participate in Elections • Article 19(1) EC  Right to vote and stand as a candidate in municipal elections (municipal) • Article 19(2) EC  Right to participate in elections to the European Parliament • Supplemented by Council Directive 94/80 of 19 December 1994 [1994] O.J. L 368/38 (covering the determination of the local government unit and the issue of … Luxembourg)

18. 4.2.3). Right to Diplomatic or Consular Protection Article 20 EC  EU citizens have the right to obtain diplomatic and consular protection in a third state where their own MS is not represented by a permanent consular post or a diplomatic mission, from any other EU MS having a diplomatic mission there, on the same conditions as nationals of that MS

19. 4.2.4). Complaints • Art. 21 (1st §) EC : right to petition the EP (+ Art. 194 EC). This right concerns EU citizens proper, but also any natural or legal person residing or having its registered office in a MS : nevertheless, two limitations • Article 21 (2nd §) : right to submit complaints to the EU Ombudsman (+ Art. 195 EC)

20. 4.2.5). (Contd.) Art. 21 (3rd §) EC : right to apply to the Community institutions in one of the official languages and to receive a reply in that language

21. Conclusions on the TEU • Initial public disquiet and dissatisfaction : two hurdles to clear (Denmark and the German Bundesverfasssungsgericht in the Brunner and Others v The European Union Treaty [1994] 1 CMLR 57) • Substantial improvements (e.g. enhancement of the powers of the E.P. (co-decision procedure of Art. 251 EC)), but a series of ambiguities…

22. Most Notably… Overlapping mix of supranational (EC) features (Pillar I, Titles II-IV) and intergovernmental (non-EC EU) features (Pillar II, Title V and Pillar III, Title VI) inherent in the structure of the Union - two related consequences

23. Contd. • Increase in the variety of available legislative procedures (e.g. Article 95 EC on the internal market and Article 175 EC on environmental protection) leads to an increase in litigation : mutual incompatibility between legal bases • Whilst the ECJ’s jurisdiction to control Union competence outside the EC pillar is limited (Article 46 TEU), the ECJ asserts its jurisdiction in “inter-pillar” disputes

24. Contd. • ECJ, Case C-176/03, 13 September 2005, Commission v. Council [2005] ECR I-7879 • The case concerned a third pillar act - a “framework decision” adopted on the basis of Articles 29 and 34(2)(b) EU [contrast with Article 249 EC] - imposing criminal sanctions in defined fields of environmental protection

25. Contd. • The Commission considered the matter fell within the scope of the EC Treaty (Articles 174-175 EC on the protection of the environment), hence the action before the ECJ to annul the Framework Decision (Art. 230 EC) • The Court agreed with the Commission and annulled the Framework Decision as an encroachment on the powers which Article 175 EC confers on the EC

26. Two Thoughts on Case C-176/03 • The case hinges on the limits of the EC’s role in shaping criminal law - henceforth, why not use Article 95 to harmonize criminal law? • The case more broadly illustrates the uneasy relationship between the EC legal order and the intergovernmental procedures found in the third pillar

27. Contd. • In addition to the complexity of the new “Union” structure, with its mixed bag of institutional reforms, the TEU contained many many opt-outs and exceptions (leading to a loss of unity and coherence of the Community legal order) • Aware of its shortcomings, the TEU itself provided for a further IGC to be convened in 1996  Treaty of Amsterdam (ToA) signed in 1997 (entry into effect on May 1, 1999)