The constitutional nature of the EU Flashcards
(29 cards)
What were the purposes of international cooperation following WWII?
+ peaceful international order
+ protection human rights
- regional economic integration
Which is the legal premise for a state to foster such cooperation?
limitation of state sovereignty
which are the tools of self-limitation at international level?
- international treaties
- international organisation
What are international treaties? What is their connection with International organisations?
agreements signed by 2 or more states which are equally bound to comply with the obligations accepted.
They can be issued by international organisations
Some treaties establish international legal entities composed of member states, that is international organisations.
which is the tool of self-limitation at national level?
constitutional clauses, which limit state sovereignty by recognising international laws
such clause can be found in the Italian constitution: article 10, paragraph 1 (“generally recognised principles of international law”)
in which constitutions (which state) are usually found such clauses?
The losing countries of WWII: some similarities can be found between the Japanese, [the Italian], the German constitutions and the constitution of the 4th French Republic.
Indeed, the Italian constitution agrees to “limitations of sovereignty” in article 11, the same in which it is is stated that “Italy rejects war”
How is the co-existence between international and national legal systems arranged?
There are two approaches:
- monism
- dualism, the dominant one
what does monism embrace?
A unitary legal system, composed by international law and norms, and national norms
what does dualism embrace?
the coexistence of the two legal systems (national and international) each relying on its own basis
[according to the dualist approach] what does the relevance of international law at national level require?
a national source of law recognising international law and allowing it to be enforced at national level
which documents constitute the “constitutional basis” of EU?
- Treaty on EU [TEU]
- Treaty on Functioning EU [TFEU]
- The charter of fundamental rights
Which is the most important document of the Council of Europe (=”big Europe”, 46 member)?
the European Convention of human rights [1950]
Where is the European Court of human rights [ECtHR] based?
Strasbourg
Where is the Court of Justice of the European Union [CJEU] based?
Luxemburg
Where is the EU Parliament located?
Strasbourg and Brussels
Where is European Commission located?
Brussels and Luxembourg
Which is the difference bt Bundesstaat and Staatenverbund?
The German Constitutional Court has put forward the dichotomy.
- The former [Bundesstaat] is the federal state (as Germany)
- The latter [Staatenverbund] is an equal union or association of states. In such a union, member states maintain full sovereignty and are **Masters of the Treaties **.
What was the German Constitutional Court position?
according to the German Constitutional Court, the EU would be a Staatenverbund
the decision was the product of Ultra Vires review: checking if the EU was going beyond its powers.
What are the options about the institutional form of the EU?
- International organisation/confederation
- Federal state
- Federation
Which are the international/confederal elements? [3]
- withdrawal and not secession [art. 50 TEU]
- MS as Master of Treaties: unanimity and ratification required
- intergovernmental method
What suggest that EU is not a State? [2]
- lacking one people (=constitutive element of a State). Powers are conferred upon by MS
- absence fiscal capacity (financial framework provided by contributions of MS)
Which are the federal elements in EU? [7]
- Catalogue of rights (Charter of Fundamental Rights)
- Community method
- Primancy and direct effect EU law
- Common** currency **
- Subsidiarity principle (decisions are retained by MS is Eu is not necessary)
- Principle of sincere/loyal cooperation
- Principle of implicit powers
What does Community method embrace?
The Community method underscores the supranational dimension of the EU and empowers the supranational institutions.
which are the supranational institutions of EU?
Commission, Parliament and Court of Justice.
The Council of EU and European Council are Inter-governmental institutions