Faculty of Law 2012/2013

International and European Law

Course book

European Law School, english track

Year 1 Course period 5

IER1001

Maastricht University Faculty of Law 2012/2013

International and European Law

European Law School Period 5

International and European Law

1. Introduction This course consists of two parts: International law and European law. In the first half of the course, the basic elements of International law will be studied. We will subsequently focus on the subjects and sources of international law, the law of treaties, jurisdiction and immunities, state responsibility, human rights, the law of the sea, peaceful settlement of disputes, and the use of force. In the second half of the course, we will study the process of European integration and an advanced type of international organisation - the European Communities and the European Union. It will become clear that the Member States of the European Union have in fact accepted a far-reaching limitation of their sovereignty. Some even claim that domestic law has been absorbed by a complex European legal order, which would mean (at least in Western, Central and partly Eastern Europe) the end of a long historical era of sovereign States.

2. Course objectives The objective of this course is to acquire basic knowledge of International and European law, as well as to gain some insights into the historical development of International law and the history of the European unification and the interaction between International law and politics. Basic knowledge includes: The knowledge and insight that a lawyer who is not specialized in either International or European law should have; The knowledge and insight that will enable a student who wishes to specialize in either International or European law to commence this specialization; The skill to work with primary sources of International and European law.

3 3. Methods of instruction 3.1 Tutorial group All students will participate in a tutorial group that meets twice a week. During these meetings the group will employ the problem-based learning method to solve the tasks set in the course book. The tasks are divided into a series on International law and a series on European law. Every week one of the learning objectives will be selected as the subject matter for a short paper (1-2 pages) that must be submitted through EleUM by midnight on Sunday. To ensure the optimal functioning of tutorial groups, students should attend all meetings and be well prepared. The following rules apply: Students are permitted to be absent from a maximum of two group meetings. If a student is insufficiently prepared, this will be regarded as being absent, at the discretion of the tutor. If less than twelve students attend two consecutive group meetings, the members of the group may be divided over other tutorial groups or students from other tutorial groups may be added to the group in question. 3.2 Lectures Every week there will be a lecture, the date and time of which will be published in due course. The subject matter of the lectures is an integral part of the materials to be studied for the exam.

3. Examination The course is assessed by means of a written exam that consists of 4 questions. 2 questions are devoted to international law and 2 questions to European law. Students who have satisfactorily and in due time completed at least six out of the seven weekly papers will receive a credit of one point (out of a maximum grade of 10).

Elementair Internationaal Recht and Blackstones EU Treaties & Legislation may be taken to the exam if they are not annotated. (Highlighting and underlining of sentences and part of sentences is allowed).

4 4. Literature 4.1 Textbooks The literature for this course is as follows: International law: M. Dixon, Textbook on International Law (6th edition, OUP, 2007) Elementair Internationaal Recht (Asser) (T.M.C. Asser Instituut, 2011) Please note that the following parts of Dixon do not have to be studied: - Chapter 4 - Section 5.4 - Sections 7.2.4; 7.4; 7.6; 7.7; 7.9 - Sections 9.3; 9.4; 9.5; 9.6 - Section 10.6 - Section 12.4 European law: N. Foster, Foster on EU law 3d Edition, (OUP 2011) N. Foster, Blackstones EU Treaties & Legislation 2012-2013 (OUP, 2012) Please note that the following parts of Foster (Foster on EU Law) do not have to be studied: - Sections 5.4 and 5.5 - Sections 7.5 7.8 - Chapter 11

4.2 Case law and Treaties A number of judgments of the International Court of Justice and the European Court of Justice are part of the mandatory material for the exam. These judgments will be discussed during the lectures and in the tutorial group meetings. In addition, a number of treaties must be studied very closely. 4.2.1 Case law International law: - Reparation for Injuries Suffered in the Service of the United Nations (Asser) - Lotus-case, (as far as dealt with in Dixon) - Asylum-case (Columbia vs. Peru), (as far as dealt with in Dixon)

5 - The Anglo-Norwegian Fisheries case, (as far as dealt with in Dixon) - The North Sea Continental Shelf cases (Asser) - Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Asser) - South West Africa case (Legal consequences for States of the continued presence of South Africa in Namibia) (Asser) - The Lockerbie-case, (as far as dealt with in Dixon) - Case concerning the arrest-warrant of 11 April 2000 (Congo vs. Belgium) (as far as dealt with in Dixon; the complete case is contained in Asser) - The Island of Palmas-case (Asser) - Caroline-case, (as far as dealt with in Dixon) European law: - Case 26/62, v. Gend en Loos - Case 6/64, Costa/ENEL - Case 56 & 58/64 Consten & Grundig v. Commission - Case 8/74, Dassonville - Case 27/76 United Brands - Case 120/78, Cassis de Dijon - Case 106/77, Simmenthal - Case c-188/89, Foster - Case c-6+9/90, Francovich - Case c-267+268/91, Keck & Mithouard - Case c-91/92, Faccini Dori

4.2.2 Treaties and other documents International law: - Charter of the United Nations (UN Charter) - Statute of the International Court of Justice - Vienna Convention on the Law of Treaties - Rome Statute of the International Criminal Court - Vienna Convention on Diplomatic Relations - Responsibility of States for internationally wrongful acts (A/RES/56/83) - Convention on the Continental Shelf - United Nations Convention on the Law of the Sea (LOS) 1982 - Universal Declaration of Human Rights - International Convention on the Elimination of All Forms of Racial Discrimination - International Covenant on Civil and Political Rights - International Covenant on Economic, Social and Cultural Rights - Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment - Convention on the Elimination of all Forms of Discrimination Against Women

6 - Security Council resolution 1973 (2011) on Libya (internet) European law: - EU-Treaty - TFEU-Treaty (Treaty on the Functioning on the European Union) - Relevant protocols to the TEU and TFEU (notably protocols 1; 2; 3 and 36) - Regulation 1/2003 - Directive 2004/38 - Regulation 492/2011 - Rules of Procedure of the Court of Justice of the European Union - Information notice on references from national courts for a preliminary ruling 2011

4.3 Websites Below you will find a few useful websites you are advised to familiarize yourself with: United Nations: www.un.org United Nations High Commissioner for Human Rights: www.unhchr.ch International Court of Justice: www.icj-cij.org International Criminal Court: http://www.icc-cpi.int European Court of Human Rights: www.echr.coe.int European Union: http://europa.eu/index_en.htm European Court of Justice: http://curia.europa.eu/en/transitpage.htm EUR-LEX: http://eur-lex.europa.eu/ 4.4 EleUM Regular use of EleUM during this course is crucial in order to remain fully informed. EleUM is the easiest and fastest way for tutors to communicate with students and for the course co-ordinator to make urgent announcements. Information relating to the lectures and tutorial meetings, such as lecture sheets will also be posted on EleUM. Information regarding the simulation is also provided trough EleUM.

5. Further reading If you would like to gain more in-depth knowledge of international law the following English language textbooks are recommended: I. Brownlie, Principles of Public International Law A. Cassese, International Law D. Harris, Cases and Materials on International Law R. Higgins, Problems and Process, International Law and How We Use It M. Shaw, International Law . Treaties, resolutions of international organizations and judgments of international courts and tribunals may be found on the Internet. Following are two recommended collections of international instruments: Blackstones International law Documents Blackstones International Human Rights Documents The leading international law journals are: The American Journal of International Law The European Journal of International Law The International and Comparative Law Quarterly Regarding European law, the University Library carries the Official Journal of the European Communities (the complete collection of all binding EC and EU decisions). In the Library you can also find textbooks on European law, such as: P. Craig en G. De Burca, EU Law. Text, Cases & Materials D. Chalmers & others, EU Law D. Wyatt en A. Dashwood, EU Law J. Fairhurst, Law of the European Union Furthermore, in the Studielandschap you will find textbooks on different areas of EU law, such as competition law, social policy, environmental policy etc. Due to the increasingly close connection between EC law and domestic law you will find articles on European law in practically every legal journal. Specialized European law journals are: The Common Market Law Review The European Law Review

6. Staff The following staff members participate in this course:

Mr. Dr. Sjoerd Claessens LL.M. (course coordinator, tutor and member of the planning group): s.claessens@maastrichtuniversity.nl Dr. Fabian Raimundo (tutor) Dr. Laura Tilindyte (tutor) Dr. Mr. Ingrid Westendorp i.westendorp@maastrichtuniversity.nl (member of the planning group):

In addition there will be 3 student-assistants involved in teaching: Armin Lambertz Pauline Melin Petja Piilola

Part 1: International law

Meeting 1

Nature and Subjects of International Law

Assignment 1: the nature of international law Read chapter 1 of the Textbook on International Law by Martin Dixon as well as the excerpts you find in task 1. Answer the questions at the bottom of task 1 before the first meeting. Bring this written assignment with you to the first meeting of your tutorial group.

The nature of international law

Task 1

The development, nature and expansion of international law

International law tends to be considered a tricky if not shady branch of law. Its characteristics vary from mainstream domestic law, and therefore lawyers very often do not feel at ease with international law. That is why it is necessary to consider the development, nature, and expansion of international law before dealing with the substantive rules. The excerpts below may provide a basis for discussion:

a. The development of international law Although there has been some contact among states since antiquity, it is generally assumed that international law as we know it today was developed some 400 years ago. The first international rules were concerned with the law of the sea and trade law. While originally the philosophy of natural law formed the basis of international law, in the 19th century positivism gained more and more importance with the result that states came to be regarded as the most important actors of international law and law and morality became separated. The atrocities that were committed during the Second World War brought about a certain comeback of natural law thinking, however.

10 Due to the process of globalization and the ensuing interdependence of states, the character of international law has changed during the last few decades. It has become impossible for states to isolate themselves and they are obliged to give up at least part of their sovereignty.

b. The nature of international law It is also important to realize that the practice of international law is intrinsically bound up with diplomacy, politics and the conduct of foreign relations. It is a fallacy to regard international law as the only controller of state conduct. It cannot do this and, more significantly, it is not designed to do it. International law does not operate in a sterile environment and it is just one of the factors which a state or government will consider before deciding whether to embark on a particular course of action. In fact, in most cases, legal considerations will prevail, but it is perfectly possible that a state may decide to forfeit legality in favour of self-interest or expediency... Indeed, in international society, where politics are so much a part of law, it may be that contextual and flexible rules are a strength rather than a weakness. (Excerpt from: M. Dixon, Textbook on International Law, London, 1990)

c. The horizontal and vertical expansion of the community of nations The horizontal expansion of the community of nations has far-reaching consequences. The Western Nations occupy a minority position in the present community. That means that the prosperous, technologically highly developed, industrial and commercial nations are now in the minority. The majority is composed of poor, technologically underdeveloped countries with an alarmingly low standard of living.

A vertical expansion of international law can also be discerned. The classical, traditional law of nations was a law obtaining among the sovereign states. Modern international law must, of necessity accept supra-national communities in which individuals sometimes participate directly. The international organization is juxtaposed by the supra-national organization. Usually we find admixtures of the two characteristics of the transition period. (Excerpts from: B.V.A. Rling, International Law in an Expanded World, 1960)

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Questions: 1) What is meant by positivism and naturalism and to what extent have these philosophies influenced the development and contents of international law? 2) 3) 4) To what extent does the nature of international law differ from national law? What are the strengths and weaknesses of the international law system? How did international law develop and what is meant by horizontal and vertical expansion?

Subjects of international law

Task 2

Kosovo

On 17 February 2008, the Serbian province of Kosovo decided to take matters in its own hands. For years the population had felt discriminated against by the Serb majority. Kosovo was a prosperous province and it had good commercial relations with a number of States in the world. The independence was proclaimed and the new State was immediately recognised by Turkey, France, Germany, Great Britain and the United States. In 2012 some eighty other States have followed their example. The self proclaimed republic of Kosovo is now four years old and the democratically elected Government of Kosovo decides to accede to the main international human rights treaties and announces that it wants to become the 194th Member State of the United Nations.

Task 3

Grace Holland

Grace Holland, an Australian citizen, is a civil servant of the WHO in Geneva. In July 2011, it is decided to send her on a mission to Avaria, an African State, and member of the WHO. Her task will be to advise the Avarian Government on the development of an AIDS/HIV programme. The political situation in Avaria is rather hectic, however. An important ethnic group (more than 50% of the population) which calls itself the IPA (the Indigenous People

12 of Avaria) is engaged in bitter guerilla-warfare with the Avarian Government. The IPA has even set up a provisional government which already controls the southern half of Avaria. In December 2011 Ms Holland is apprehended by the guerilla-movement during one of her field trips. Three days later her mutilated body is found. No investigation is undertaken; consequently no prosecution of possible offenders takes place and neither the WHO nor Ms Hollands relatives are in any way compensated for their loss.

Assignment 2: the United Nations Look for information on the main bodies of the United Nations. Write down which tasks and competences they have and mention in which treaty and in which specific articles this has been laid down. Also mention which source(s) you have used to find this information. Bring this information with you to the second meeting.

Meeting 2

Sources of International Law and the Law of Treaties

Sources of international law

Task 4

The role of Resolutions

In 1983 the UN Security Council adopted a Resolution in which it was decided that States were not allowed to recognise the Republic of Kiepros as a State. The reason for this decision was that in 1975 the State Toerkia conquered the territory from the State Ellada and proclaimed the entitys independence eight years later. In 2012 the Kingdom of Mallakan concludes a commercial treaty with Toerkia. In one of the articles of the treaty it is stipulated that Mallakan is obliged to recognise Kiepros as a State. Mallakan wonders whether it can disregard the SC Resolution. In Article 38(1) of the Statute of the International Court of Justice resolutions are not mentioned as a source of international law; surely the treaty between Toerkia and Mallakan is more important?

13 Task 5 Custom vs. Treaty

For years the tension between the neighbouring States Arkan and Bino has been growing. Arkan is very unhappy with the fact that Bino has a leftist regime and that the country does not wish to co-operate with Arkan in respect of several issues. When a group of rebels starts a guerilla war against the Binoan Government, Arkan hopes that this group will succeed in overthrowing the Government. That is why Arkan secretly starts to furnish the rebels with weapons and money, and, in addition, sends a small group of its elite-troops to the Binoan outback where they train the Binoan rebels. The Binoan Government is aware of what is happening and tries to fight the rebels with all its might. The Government understands, however, that it is fighting a losing battle if the rebels are supported by the much more powerful Arkan.

The Binoan Government is of the opinion that Arkan is violating several rules of international law. Since Bino wants to avoid a military conflict with Arkan, the Government proposes that the two States put their conflict before the International Court of Justice (ICJ) in The Hague. Much to the amazement of the Binoan Government, Arkan immediately agrees. The Binoan Government is unaware of the fact, however, that Arkan is of the opinion that there is not much the ICJ can do in this case. Arkan has not ratified the UN Charter and therefore the country is not bound by the prohibition of using force as it is contained in article 2 of this Convention. Furthermore, Arkan thinks that the ICJ will be unable to use another source of international law since the codification of a rule of law in a treaty will render all other sources null and void.

The law of treaties

Task 6

To be or not to be a Party

The Republic of Msar, a member of the United Nations, considers becoming a Party to the Convention on the Elimination of All Forms of Discrimination Against Women. The Government is very much in favour of this treaty but did not participate in the drawing up

14 and adoption of the text. Since Msar is an Islamic State, there is considerable opposition from the side of the religious leaders. They point out that some of the provisions of this Convention are not in conformity with the Islamic laws. The Governments advisers on foreign affairs are requested to find a solution to this problem. After some deliberations they come up with the suggestion that Msar will become a Party under the following reservations:

General reservation on Article 2: The Republic of Msar is willing to comply with the content of this article, provided that such compliance does not run counter to the Islamic Shariah (the legal interpretation of the Quran);

In respect of Article 9: Reservation to the text of Article 9, paragraph 2, concerning the granting to women of equal rights with men with respect to the nationality of their children, without prejudice to the acquisition by a child born of a marriage of the nationality of his father. This is in order to prevent a childs acquisition of two nationalities where his parents are of different nationalities, since this may be prejudicial to his future. It is clear that the childs acquisition of his fathers nationality is the procedure most suitable for the child and that this does not infringe upon the principle of equality between men and women, since it is customary for a woman to agree, upon marrying an alien, that her children shall be of the fathers nationality.

The Msarian Minister of Foreign Affairs has serious doubts that these reservations will be acceptable, but the legal advisers assure him that there will be no problem.

15 Meeting 3 Jurisdiction and Immunities

Jurisdiction

Task 7

Jurisdiction?

The Serb Goran Hidanovic who lives in Kanne, Belgium since 2010, wants to take revenge for the NATO bombings during the Kosovo War in 1999. He finds out that there is a NATO headquarters some 40 kilometres to the north, in the Dutch town of Brunssum. Goran decides to blow up the NATO headquarters and to this end he buys C-4 explosives in Brussels and he meticulously plans an attack. On 5 December 2011 he crosses the border into the Netherlands and he drives to Brunssum where he manages to blow up the gatekeeper building. The building is destroyed, two German soldiers are killed and Goran is injured in the act. After Goran has been arrested by the Dutch police, there is a lot of confusion which State can claim jurisdiction over the case. Or maybe he could be prosecuted by an international court?

Immunities

Task 8

George W. Bush

In August 2011, ex president George W. Bush goes on holidays to Egypt in order to visit the pyramids of Cheops and the temples of Luxor. An Egyptian non-governmental organization called Justice For All demands that Bush is arrested and prosecuted for numerous gross violations of the Geneva Conventions. The organization holds Bush responsible for war crimes and crimes against humanity committed in Iraq and Afghanistan, and for the torture of prisoners in Guantnamo Bay and for denying them a fair trial. In case Egypt should refuse to prosecute Bush, Justice For All wishes to bring the case before the International Criminal Court.

16 Task 9 The Embassy

The situation in the African country Rafique is getting more worrisome by the minute. The democratically elected Government has been overthrown by a military coup and the new powers cause terror and death all over the State. It is therefore understandable that many citizens flee the country. A large group of Rafiquan citizens has sought asylum in the United Kingdom and every Wednesday they hold a peaceful demonstration in front of the Rafiquan embassy in London.

One Wednesday the situation gets out of hand. People start shouting and throwing stones at the Embassys windows. The diplomats inside the building get scared and one of them panics and starts shooting at the protesters with his old semi-automatic .22 Luger from one of the Embassys windows. However, he hits one of the London Bobbies who have come to the diplomats rescue. This policeman dies a few hours later because of his bullet wound.

The British authorities wonder what action they can take since Rafique is not a party to the Vienna Convention on Diplomatic Relations.

Meeting 4

State responsibility and human rights

State responsibility

Task 10

Fire in Balou

Dutch national Ben de Jong decides to celebrate his high school graduation by taking his two best friends on a holiday to the well-known Spanish city of Balou. During the day they enjoy the sun and the sea and after sundown they enjoy the nightlife. One night, as they are getting ready to leave for their favourite club, Ben looks down from the balcony and sees smoke coming from several windows on the lower floor. He immediately runs downstairs and informs the reception of the situation. The hotel is instantly evacuated and

17 the fire department comes to put out the fire. Luckily nobody gets hurt, but the damage is considerable, at least 10 million Euros.

When one of the receptionists points out Ben as the person who reported the fire, he is arrested by the Guardia Civil and taken into custody. Even though he is only 17 years old, he is put in a cell, which is intended to hold 6 people, with 19 other suspects and he is kept incommunicado for three days. When he is later brought before an examining magistrate, a horde of journalists is awaiting him. They take pictures of him and videotape him. These pictures and films are also given to the Dutch media. Ultimately he spends 2 months in a Spanish cell, until it becomes clear that no evidence can be found against him and that the fire was probably caused by a short circuit.

Back in the Netherlands Ben finds out that that it is not so easy to get on with his life. He and his family are being ostracized in the village they have lived in all their lives because people assume that Ben was guilty of starting the fire at the hotel (after all, everybody had seen Ben on television, handcuffed and escorted by policemen). They see no other solution but to move away. In addition to this, Bens parents had to spend a large amount of money travelling multiple times from the Netherlands to Spain to support Ben, looking for legal aid both in the Netherlands as well as in Spain, and for the payment of a interpreter, which they needed because all the case files were drawn up in Spanish. Moreover, Ben has missed the first course at University and he is suffering from a lack of concentration which makes it highly doubtful that he will pass his first year exams. He feels that someone must be held responsible for ruining his life and he asks your advice. Maybe he is even entitled to some form of reparation?

Human rights

Task 11

Guantnamo Bay

In January 2009 the then 25-year old Egyptian Nur El Din Hassanin was arrested in the United States on suspicion of planning a terrorist attack and he was transported to the US

18 military basis on Guantnamo Bay. Although he was never formally charged, he was detained there for nine months. When he was released for lack of evidence, he alleged to have been the victim of all kinds of illegal actions. He purported that he was chained to a wall for days on end, that he had been starved and that certain drugs were administered to him with the purpose of eliciting a confession from him. He thinks that his human rights have been violated. It is not clear, however, whether Murat is as innocent as he claims to be. Moreover, terrorist attacks were not foreseen when international law rules were drafted so perhaps the treatment of (alleged) terrorists falls outside the scope of the normal protection of prisoners. The United States deny having treated Murat in violation with international law. According to a spokesman he stayed on a subtropical island, was well fed and received everything he wished for. Moreover, Guantnamo Bay is not even American territory.

Make use of the site of the High Commissioner for Human Rights (www.ohchr.org) to solve this case.

Meeting 5

The Law of the Sea

Task 12

Arba vs Ena

After many years of disagreement, the States Arba and Ena finally decide to submit their dispute to the International Court of Justice with the request to determine the maritime border between them in accordance with international law. Ena is an island, whereas Arba consists of a large peninsula and a multitude of small islands off the coast (see the map below). The distance between the coasts is nowhere more than 24 nautical miles. Neither of these States is a party to the 1958 Geneva Convention on the Law of the Sea. Ena has ratified the 1982 UN Convention on the Law of the Sea, but Arba has only signed that treaty.

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Task 13

The Brazilian fishing boat

Approximately 50 nautical miles off the Argentinean coast a Dutch cargo ship and a Brazilian fishing boat collide. The damage to the fishing boat is so severe that it sinks and three of its crew are drowned. From the investigation that was carried out it appears that the accident was caused by drunkenness of the Dutch helmsman. The Argentinean authorities are furious because the Brazilians were fishing in what they consider to be their waters. Moreover, it turns out that two researchers were on board of the fishing boat taking samples of the seabed. According to the Brazilian Government its subjects did nothing wrong. After all, Argentina did not claim the exclusive use of its continental shelf, nor did it claim an Exclusive Economic Zone. Brazil is more concerned about the question which country is going to prosecute the Dutch helmsman.

20 Meeting 6 Peaceful settlement of disputes and the use of force

Peaceful settlement of disputes

Task 14

Diplomatic and judicial ways to settle a dispute

A)

The river Potamos is the natural border between the States Xenos and Allos. By a

freak of nature, the river suddenly changes its course causing a disagreement between the two States in respect of the ownership over a certain strip of land. Both States hope to settle the matter amicably by using diplomatic channels.

B)

Ultimately, it proves not to be that easy to solve the dispute between Xenos and

Allos. Both States agree to submit the case to an independent third party that can take a binding decision.

C)

Xenos also has a conflict with Germany about the possible violation of their air

space. Xenos wants to find a quick and lasting solution and decides to submit the case immediately to the International Court of Justice in The Hague. It is not clear, however, whether this can be done just like that.

The Use of Force

Task 15

Self-defence

Oakland and Sealand have a long-standing territorial dispute. Since time immemorial both States have argued about the sovereignty over Sunset Island, some 200 miles north off the coast of Oakland and about 310 miles northeast of Sealand. History tells us that power over the island has changed from time to time, and for a long time neither of the States succeeded in establishing sufficient authority. However, since the Second World War, Sunset Island has been part of Oakland, although a peace treaty has never been concluded between the two States.

21 One sunny morning, an impressive flotilla of the Sealand navy appears on the horizon of Sunset Island. When asked for an explanation, Sealand states that there is nothing to worry about since it is a regular biannual naval manoeuvre. As the Sealand fleet comes nearer and nearer to the coast, the Governor of Sunset Island panics and gives the command to fire at the Sealand navy. After all, one cannot be expected to wait for the first devastating attack.

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Part 2: European Law

Meeting 7: The Institutional Structure of the EU The Nature of EU Law

Task 16 A)

From ECSC to EU Institutional structure

At the beginning of the fifties, at the signing of the treaty establishing the European Coal and Steel Community, the French minister for Foreign Affairs, Robert Shuman declared: Cette Europe est ouverte tous les pays europens libres de leurs choix. Nous esprons firmement que dautres pays sassocirent notre effort. B) In the Maastricht Treaty, provisions were added to already existing European

treaties on economic and monetary policy, foreign and security policy and sections on Justice and Home Affairs. The cooperation that already existed in a number of these fields, obtained a new legal framework in the Treaty on the European Union. This treaty may be regarded as a combination of forms of supranational cooperation already in existence with forms of intergovernmental cooperation. Basically, the Treaty was a compromise between supporters of a federal Europe and Member States who do not want to proceed further than an europe des patries. C) On 1 December 2009 the Treaty of Lisbon entered into force. The Treaty reflects

the end result of Treaty reform that was started in 2001 by developing the European Constitution (that never entered into force). The Treaty of Lisbon mainly changes the Institutional structure of the European Union. Determine per institution whether it has characteristics of an intergovernmental or supranational organ.

D)

The institutions of the EU often have to take into account conflicting interests.

For someone who sells foodstuffs, it is important not to be subjected to differing national regulations about the information that has to be printed on a jam jar. Consumers on the other hand would like to have as much information as possible, preferably in their own

23 language. In other instances a healthy environment has to be set off against the economic profits of companies. Do you think that the composition and working methods of the institutions influence the interests they give preference to?

E) From a political perspective the Council is deemed to be the most important institution. In the press the Council of the European Union is often mixed up with the European Council and the Council of Europe, while the Court of Justice in Luxemburg is confused with the European Court of Human Rights in Strasbourg.

Task 17

The nature of EU law

In Article I-6 of the Treaty Establishing a Constitution for Europe it was stipulated that European law shall have primacy over the law of the Member States. This provision drew a lot of attention in the Netherlands in the run up to the referendum of June 1st 2005, and it was one of the reasons why many people voted against the Constitution. The provision is absent from the Treaty of Lisbon

However, this article contained nothing new. In the sixties and seventies of the last century the European Court of Justice rendered a few important judgments (according to some the most important judgments the Court has ever rendered) about the nature and precedence of European law. Read these three most relevant judgments and answer the following questions:

a.

Why did the Dutch court ask a question to the ECJ? Would it not have been possible to solve the problem of Van Gend en Loos on the bases of the Dutch Constitution?

b.

Why did the ECJ give a more elaborate answer than was strictly necessary for Dutch courts question?

c.

Why did the Court need Costa/ENEL? Would it not have been easier to solve the precedence problem in Van Gend en Loos?

24 d. Why have the Member States not changed the EEC Treaty after the ECJs judgments in order to reverse the Courts interpretation? e. f. g. What is the implication of the Simmenthal judgment? What do you think about the ECJs attitude? In Van Gend en Loos, the dispute was about article 12 EEC. This article

indicated: Member States shall refrain from introducing, as between themselves, any new customs duties on importation or exportation or charges with equivalent effect and from increasing such duties or charges as they apply in their commercial relations with each other. Over time, the EEC Treaty became the EC Treaty and since the Treaty of Lisbon, the Treaty on the Functioning of the European Union (TFEU). Why is there no provision in the TFEU corresponding with old article 12 EEC?

Meeting 8 Task 18

Competences and Decision-making Legal bases

The European Union wants to make new legislation in the area of climate and environment.

a.) What will the Union have to take into account before it starts the creation of new legislation? b.) What will be the legal base?

The European Commission wants to propose a new Directive on tobacco advertisements.

c.) Why would it choose for a Directive? Can the European institutions also decide to create a regulation?

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Task 19

Another beer, please

Recent scientific research has proved that excessive alcohol consumption will, in the long run, inevitably lead to irreparable damage. According to empiric data, a number of brain cells dies whenever a person drinks more than 20 alcoholic units. A regular glass of beer (alcohol percentage 5%) counts as 1 unit. A glass of strong liquor, for example whiskey, counts as 4 units. The European Commission is planning to start an information campaign to inform the public of the dangers of alcohol consumption. The Commission is, simultaneously, exploring the possibility of producing Community laws that would require all alcoholic drinks to be labelled. The Commission proposes to attach a small label with the words Be wise. Drink with moderation to all drinks, particularly beer and wine, that contain an alcohol percentage up to 15%. A larger label with the words Alcohol brings serious damage to your health would be attached to drinks with a higher alcohol percentage.

Several whiskey and vodka producers in the UK and Scandinavia have voiced strong objections to the Commissions proposal. They have started a lobby to get the proposal revoked. Their complaints are not falling on deaf ears, in view of the fact that the Governments of the UK, Ireland, Poland and Sweden have expressed their unwillingness to support the Commissions proposal in the Council of Ministers. Finland and Denmark have indicated that they will abstain from voting, should a vote be taken. The German Government is still deliberating on the matter and wants to wait for the definitive version of the text of the proposal before making a decision. The European Parliament wants to be actively involved in the decision-making process and emphasizes the importance of this legislation with for the protection of young people.

You are a member of the Legal Service of the Commission and you are asked to give advice in this matter.

26 Task 20 Is EU-decision making democratic?

The following text is a translation of an internet blog on the Lisbon Treaty entitled: Blijven wij de verdragen verdragen? (Will we continue tolerating the treaties?) See: http://eudissident.com/euroscepsis/

Read the text and give your opinion.

Is a cat in the EU a cat?

My neighbour knows that I work at an EU institution. - Dont you work for the European Union as, eh, what was it again? - As dissident? - Whatever, in any case, it has something to do with democracy; it is something democratic, right? - Democratic? I wonder whether he refers to the EU or to my dissidence. - Well, the EU of course, they say that for years now. - People come to know all sorts of things. How did my neighbour find out that the European Union is democratic? It was not difficult. If the EU is in the media, he thinks, they often talk about something that is particularly democratic. The Commission? No, that is not what he means. The Council? The Parliament? The Court of Justice? No no no, it was something else. Suddenly his eyes lighten up. - Now I remember: it is the deficit! That is democratic, right? Their deficit? I hear it all the time! Its always about the democratic deficit! I never noticed that the EU listens to us, but at least they have something democratic: a democratic deficit!

27 Meeting 9 Remedies

Not only is the institutional structure of the EU different from most other international organisations, also the effect of European law (treaties, regulations and directives) on national law is much more intense and diffuse. This aspect of European law has already been discussed last time. Refresh your knowledge by completing the following task.

Task 21

Complaint

Look once more at task 19. If a European institution, an EU Member State, an undertaking or a citizen does not agree with the legal base selected, can they bring a complaint before a court?

Task 22

Pacta sunt servanda!

Council Directive 89/106/EEC of 21 December 1988 on the approximation of laws, regulations and administrative provisions of the Member States relating to construction products (as amended by Directive 93/68/EEC) aims to eliminate free movement restrictions with regard to construction products.

Article 4 (2) indicates that Member States shall presume that the products are fit for their intended use if they bear the CE mark (Conformit Europenne).

As held by article 13 (1) of the Directive, the manufacturer shall be responsible for the attestation that products are in conformity with the requirements of a technical specification within the meaning of Article 4. Products that are the subject of an attestation of conformity shall benefit from the presumption of conformity with technical specifications within the meaning of Article 4.

The Commission adopted Decision 1999/93 in order to specify the procedures for attesting the conformity of doors, windows, shutters, blinds, gates and related building

28 hardware. This Decision is based on article 13 (6) of the Directive and is directed at the Member States. For doors, gates and associated hardware intended for use in fire/smoke compartmentation or on escape routes, Annex III to Decision 1999/93 requires use of the procedure for certification of conformity (CE), as referred to in Directive 89/106 not only by means of that factory-production control system but, additionally, by means of a procedure in which an approved certification body is involved in assessment and surveillance of the production control or of the product itself.

In April 2005, a Belgian enterprise, DANCE CARR ordered from the Italian company SAFEDOORS, the supply and installation of three exterior doors fitted with panic bars. In May 2005, following the installation of the first of those doors, DANCE CARR formed the view that the product installed did not comply with EU

legislation, since SAFEDOORS did not have a certificate of conformity issued by an approved certification body as referred to in Decision 1999/93. Consequently, DANCE CARR refused to pay.

SAFEDOORS initiated a procedure before the Court of First Instance in Pisa to get damage compensation. It indicates that Italian law does not require a CE mark.

DANCE CARR holds that SAFEDOORS violates EU law but SAFEDOORS is sure that Decision 1999/93 and Directive 89/106/EEC are not binding upon it: Since the contract did not indicate that a CE mark is required, DANCE CARRE has to pay! Pacta sunt servanda!

29 Meeting 10 Free movement of goods

Task 23

a. Customs Ever since the opening of the internal borders in Europe, many Dutch citizens have discovered the delights of foreign, in particular French and Italian, wine. Dutch legislation provides for import duties on foreign wine. These duties have been introduced in order to cover the costs of a quality check which all foreign wine is subjected to before being released onto the Dutch market.

b. BestSmell BestSmell brings a new fragrance on the market. The perfume bottle is very special: the left side is filled with a softer perfume, while the right side, which is separated from the right side, contains a stronger odour.

This combination is extremely successful. It follows that the Swedish company wants to sell the perfume also in other states of the European Union.

Recently, in France a law has been adopted which stipulates that all publicity of perfume is prohibited in France. In this way France wants to protect young women for the abundance of nice -but often dishonest- promises which are made in such commercials.

c. In France, the Rousseau brothers are famous for their delicious cheese called Rousse. Since 2006, this cheese is also sold in other Member States of the European Union. In most countries the Rousseau brothers have no problems. In the Netherlands however, they are obliged to pay 0.50 for every pallet of cheese to the Dutch government which uses half of this money to make statistics on the consumption of French cheese in the Netherlands. The other half is used to stimulate the cheese industry in the Netherlands.

d. Red Devil A Limburg brewery had developed a new beer based on cherries. The beer has become very popular among consumers and the brewery therefore decides to introduce this beer,

30 named Red Devil, on the German market. German legislation, however, stipulates that only barley, hops, yeast and water may be used for the production of beer and that no additives may be used. Only beer produced according to these rules may be sold as beer. However, for the production of Red Devil cherries and additive colours are used.

d. Contact lenses Opticum is a company established in Hungary. It sells contact lenses over the internet. Consumers that consult Opticums website can order contact lenses via internet and Opticum makes sure that the lenses are delivered. Hungary forbids Opticum to continue this practice since contact lenses can only be sold in special shops which sell medical products.

e. Protest The Greek consumer association INKA has summoned to boycot German shops and products. The boycott follows an insulting picture of the sculpture of Milos Venus on the front page of the German magazine Focus. The picture shows Venus raising her middle finger with the text: Cheaters in the Eurofamily. The article indicates that Greece has deceived other European states to join the Eurozone. In Greece there is a serious economic crisis that can destabilize the Euro. The German ambassador in Greece, Wolfgang Schultheiss, said he regrets the picture. He said that Germany supports Greece. INKA is handing out flyers in Athens in the neighbourhood of shops that are owned by Germans. INKA claims that the violation of a sculpture attesting Greek history, beauty and culture which was made in a time that Germans were eating bananas in a tree, is impermissible and intolerable.

Translation from Elsevier 26 January 2010

31 Meeting 11 Free movement of persons

Task 24 The Italian economist Marco Di Carlo is a member of the board of Delhaize in Brussels. He wants his aged mother to live with him, even though she is not excited to leave sunny Sorrento where she enjoys la dolce vita. He also wants the caretaker of his mother, Ms. Szymanski, to come to Brussels. Ms. Szymanski and his mother both have Indian nationality. Marco is sure that a life in the capital of Europe will be an exciting experience so that his mother will forget the Italian sun soon.

Di Carlos son (19), who also moved to Brussels, spends a lot of time in the railway station of Brussels North. There he makes friends which persons belong to the heroine mafia. He is caught when robbing a night shop and is threatened with expulsion.

A brake is put on Di Carlos career at Delhaize since he does not speak any Dutch. His knowledge of French is outstanding but if he wants to get a higher function he also needs to master the Dutch language. Therefore he decides to apply for a vacancy at the

Universit Libre de Bruxelles. However, a colleague informs him that he doesnt stand a chance since positions at public authorities (such as universities) are reserved for nationals.

Di Carlo is totally discouraged and decides to look for a job in the Netherlands. That is not easy however. Due to the economic crisis there are only few places available for highly trained person desiring high remuneration. Since Di Carlo urgently needs money to pay the rent of his flat, he decides to do the dishes in restaurant The great kitchen in Rotterdam on a temporary basis. His colleague Stephen only works during the evening (12 hours per week). Di Carlos mother, who enjoys a glorious old-age pension also moves to Rotterdam.

32 Salvatore, Marcos friend is a psychologist. He would like to create an internet meeting centre where persons can ask him questions so that he can give professional advice from behind his desk in Rome. He wonders whether this is allowed under EU law.

Marcos sister is a very talented ballet dancer in Verona and would like to work for Belgians national ballerina association. Her application is rejected since she hasnt lived in Belgium during the five preceding years.

Meeting 12 Competition law

Task 25

Black pudding

A company named ABC, residing in Aachen (Germany), has developed a new kind of black pudding. Unfortunately they were unable to obtain a patent. In order to ensure that their competitors would not make unlimited use of this new production method ABC sees no other way than to conclude an agreement with its competitors. At a dinner during the main meat-producers conference in Munich, ABC strikes a deal with its main competitors, two French, a Spanish and two American companies. In exchange for the new production method the competitors of ABC agree to the use of minimum prices in order to protect ABCs R&D costs and they agree to geographically divide the market. Two months after this dinner, on a sunny Monday morning, the premises of ABC are raided by 10 officials of the European Commission, together with members of the German Competition Authority and the German Police.

Task 26

Bananas

According to the European Commission, the multinational United Brands Corporation, a producer of Chiquita bananas, sells its bananas to supermarkets for unreasonable prices. The Commission considers this to be in violation of European Law and imposes a penalty payment on UBC. UBC lodges an appeal against this decision, claiming that no violation of EU law takes place. It argues that the companys share in the fruit market is merely 7%

33 and, therefore, the company does not possess a dominant position. However, in the Commissions view, the relevant market that should be taken into consideration is the banana market. UBCs share in this market amounts to 40%.

Task 27

State Aid

The City of Maastricht would like to help the Royal Sphinx BV, a Maastricht company, with the financial problems resulting from persisting bad sales figures. Last week the Maastricht Municipal Council adopted a decision, based on which the Royal Sphinx BV may pay a 20% lower property tax for the period of 2008 - 2010. This decision is a onceonly exception which will not be prolonged after 2010. The Municipal Council decided to adopt the decision after having received a note from its legal department explaining that such a measure does not fall under the definition of State aid and it therefore does not need to be notified.

A tile company Het Tegeltje, residing in Lige, is of the opinion that such a measure does constitute State aid, however. Moreover, according to Het Tegeltje it is certain that the exception granted to the Royal Sphinx BV is incompatible with EU law and cannot be justified. Het Tegeltje decides to turn to the European Commission which immediately begins an investigation.