European Integration

Published in: Encyclopedia of Law and Society: American and Global Perspectives. Sage Publications,
Thousand Oaks, London, New Delhi, 2004. Author: Francis G. Snyder

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The European Union (EU) is the most successful attempt at regional integration in
history. Founded by six countries, it has 25 members in 2004. Its origins lie in the
reconstruction of Western Europe after World War II, made possible by the United States
through the Marshall Plan. Although created by international treaties, several factors
combine to give it many features of a constitutional system: an ideology uniting
integration and federalism, judicial interpretation, development of political institutions,
citizenship and human rights, and establishment of common policies. Today the EU is a
divided-power system, embodying a complex division of power between supranational
authorities and the Member States. It embraces regional integration in numerous policy
areas. It also represents a comparative law laboratory, combining elements of common
law, civil law, Dutch law and Scandinavian legal systems. Proposals for a draft
Constitution are being discussed. The EU is neither a state nor an international
organization. It constitutes instead a ‘new legal order’, a sui generis regional political and
legal system.

The origins of European integration are often traced to the declaration by French Foreign
Minister Robert Schuman, on May 9, 1950, of a plan for supranational management of
the French and German coal and steel industries. The plan was encapsulated in the Treaty
of Paris (1951) establishing the European Coal and Steel Community (ECSC) for a
period of 50 years. In 1957 two different Treaties of Rome created the European
Economic Community (EEC) and the European Atomic Energy Community (ECSC).
The Treaty of Maastricht (1992) established the European Union (EU), based on the
ECSC, EEC (now called the European Community, EC) and EAEC as supplemented by
intergovernmental policies and forms of cooperation. Expressed in the frequently used
metaphor of a temple, it combined supranational pillars and intergovernmental pillars.
The Treaties of Amsterdam (1997) and Nice (2001) amended the Maastricht Treaty but
retained its basic structure. In 2002 the EC absorbed the ECSC.

The founding countries of the European Communities were the ori

The founding countries of the European Communities were the original six Member
States: Belgium, France, Germany, Italy, Luxembourg and The Netherlands. The United
Kingdom, Denmark and Ireland joined in 1973, Greece in 1979, Spain and Portugal in
1986, and Austria, Finland and Sweden in 1995. The Czech Republic, Cyprus, Estonia,
Latvia, Lithuania, Hungary, Malta, Poland, Slovakia, and Slovenia joined in 2004.
Bulgaria, Romania and Turkey have also applied for membership.

The 1950 Schuman Declaration was based on the idea of spillover, according to which
integration in one domain would create demands which would spill over into others. A
federalist political objective accompanied this focus on cooperation in specific areas. This
theory of European integration was known as neo-functionalism. It has always been
contested by other theories, such as federalism, the conception of the EU as a divided-power system; functionalism, or the focus on cooperation of specific, usually technical
tasks without regard for specific institutional consequences; confederation or
intergovernmentalism, which emphasized a Europe of nation-states; policy-networks,
cutting across national boundaries to knit together experts in national governments,
private organizations and supranational institutions; and sites of governance, in which both the EU and the Member States are part of a wider set of decision-making authorities,
not necessarily linked to a specific territory and including also international public and
private organizations, such as the World Trade Organization and international
standardization bodies. These different theories have been used to understand and explain
the evolution of European integration.

The original objectives of European integration were to maintain peace between France
and Germany and to help rebuild Europe and restore European prosperity. These
objectives were to be achieved through the integration of markets for goods and services,
for the factors of production and for policy-making. The 1957 EEC Treaty of Rome
expressed these objectives in terms of the respective powers of the EEC and the Member
States. The EEC’s powers were most extensive with regard to the market for goods and
services, and least extensive with regard to the market for policy-making. This division of
power was also reflected in a common distinction between negative and positive
integration. Negative integration denotes the removal of barriers, such as customs duties,
quotas and measures equivalent to quantitative restrictions (e.g. health inspections)
between the EEC Member States. Positive integration indicates the construction of a
market through legislation and the development of common policies.

While the distinction between negative and positive integration is a useful starting point, most market integration measures in fact involve both. Typically the EC combines deregulation and re-regulation, removing national barriers to trade among the Member States, and enacting new EC measures to regulate the more extensive single European market. This involves both regional integration and a change in the level of decision-making. The Europeanization of law does not however necessarily require legislation. The EU often employs other types of policy integration, such as procedural obligations to take into account, inform, consult or coordinate as well as techniques such as mutual recognition.
At its origins, European integration was concerned mainly with the economy, notably the free movement of goods, persons, services and capital, competition law, agricultural policy, transport policy, the creation of a customs union, foreign trade and links with former colonies. In creating the EU, however, the 1992 Maastricht Treaty broadened substantially the range of policy areas and forms of cooperation. It provided for the establishment of an economic and monetary union, including a single currency (the Euro). It created a form of EU citizenship, which though dependent on national citizenship was intended to increase the political legitimacy of the EU and enhance the role of the citizen. It gave powers to the EC in the new areas of culture, education, public health, consumer protection, the establishment of trans-European networks in the areas of transport, telecommunications and energy infrastructure, industrial policy, economic and social cohesion, research and technological development, environmental policy
(originally included within the EC powers by a treaty signed in 1986, the Single European Act) and development cooperation. In all of these new areas, the EC shared power with the Member States. The Maastricht Treaty also provided for the development of forms of intergovernmental cooperation, notably a common foreign and security policy and cooperation in the fields of immigration and the fight against drugs and organized crime and cooperation between national police and customs services.
The Amsterdam Treaty gave the EC powers concerning employment policy which were shared with the Member States. The Treaty of Nice conferred on the EC powers with regard to visas, asylum, immigration and other policies related to the free movement of persons. It also gave the EC powers, shared with the Member States, concerning trade in cultural and audiovisual services, educational services, and social and human health services. It also included a Charter of Fundamental Rights. Although not legally binding at the present time, the Charter is expected to be given legal force by inclusion in the EU Constitution now under discussion. As a result of the broad scope of the current EU, theories of multi-level governance, policy networks or sites of governance have
Many basic principles of EU law concern the allocation of powers between the EU (or EC) and the Member States. According to the principle of conferred powers, the EU (or EC) disposes only of those powers which the Member States have attributed to it. In some fields, the EC has exclusive competence, in others the EC shares the competence to act with the Member States, and in others, competence remains with the Member States. The domains of exclusive EC competence and those of shared competence are not however clearly delineated. A second important principle is subsidiarity. In fields of shared competence, priority is given to action by the Member States. Any action by the EC must not go beyond what is necessary to achieve the objectives of the Treaty. A third principle, institutional balance, governs relations among the main EC institutions; it also protects indirectly the interests of the Member States. A third principle is enhanced cooperation, or flexibility, which was introduced by the Amsterdam Treaty. A group of Member States may cooperate more closely in various policy fields. This possibility is subject to stringent conditions. For example, it requires a majority of Member States, applies only in areas of concurrent or shared competence and must remain open to the eventual participation of other Member States. It is likely to be used more in the future, however, because the current enlargement will result in a much more heterogeneous European Union.
These basic principles are found in the Treaties, but others have been developed through judicial decisions because the EC Treaty is essentially a framework treaty. An example is the principle of the supremacy of Community law. According to this principle, EC law always takes precedence over the law of the Member States. In practice, national governments, including national supreme courts, often consider national constitutional law to be superior to EC legislation.. Other judge-made principles include institutional balance and direct effect. Pursuant to the latter, individuals are entitled, if certain conditions are satisfied, to invoke EC law in their national courts, thus individuals and national courts are entrusted with the implementation of EC law.
In addition to these structural principles, the EU is based on the principles of liberty, democracy, respect for human rights and the rule of law. The protection of human rights by the EU institutions is largely the result of judicial decisions. An exception is the principle against discrimination on grounds of nationality, a basic tenet of EC law since the 1950s. The Nice Treaty also provides that the Council may take action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. More generally, the European Court of Justice has held that respect for human rights is a general principle of Community law. Its sources are the constitutional traditions of the Member States and the European Convention of Human Rights and Fundamental Freedoms, signed in Rome in 1950 under aegis of the Council of Europe. The EU is not yet a signatory of the European Convention of Human Rights. However, the EU Constitution currently being discussed proposes that the EU should accede to the Convention.
The EU has a single institutional framework, which cuts across the legal distinction between the supranational and the intergovernmental areas of European integration. In the strict legal sense, the EC has five basic institutions. The Council of the European Union, formerly known as the Council of Ministers, represents the Member States. It consists a representative of each Member State at ministerial level. It is the main legislative authority, usually together with the European Parliament.
The European Commission is usually considered to represent the interests of supranational integration. It consists (as of May 2004) of one member from each Member State, chosen on the ground of their general competence and expected to be independent of their national governments. Except in limited instances, the Commission has a monopoly of legislative initiative. It is also usually entrusted with the adoption of implementing legislation. In most fields, however, the responsibility for implementing EC law rests with national administrations.
The European Parliament is intended to represent the peoples of Europe. Since 1979, its members have been elected by direct universal suffrage Initially it was called the Assembly and played a mainly consultative role. Since the 1980s, it has increased its power considerably by Treaty amendments, judicial decisions, and inter-institutional agreements with the Commission and/or the Council. Together with the Council, it usually acts as co-legislator and also decides on the EU budget.. As of May 2004, it will have a maximum of 732 members.
The European Court of Justice (ECJ) and the Court of First Instance (CFI) are the Community courts. Their role is to ensure that, in the interpretation and application of the Treaty, the law is observed. Each consists of one judge per Member State. The ECJ is assisted by eight Advocates-General, whose duty is to give an independent and impartial analysis of a case and propose a specific decision to the Court. Most judges and advocates-general are former high-level judges, civil servants, lawyers or law professors. The CFI has a broad first-instance jurisdiction, except for specific actions reserved for the ECJ. Appeals lie to the ECJ on points of law.
The Court of Auditors consists of one national from each Member State. Its role is to audit the accounts of all revenue and expenditure of the Community and of all bodies set up by the Community. It must examine the lawfulness and regularity of all revenue and all expenditure and also determine whether financial management has been sound.
The EU also includes other bodies and organs, which though not institutions in the strict legal sense are nonetheless of central importance. Today the European Council is the dominant institution of European integration. It consists of the Heads of State or Government of the Member States and the President of the Commission. Legally speaking, it is an institution of the EU, not the EC. In practice, its activities span the entire range of the Treaties. It defines general political guidelines, seeks to resolve otherwise intractable disputes and acts as the motor in determining future developments.
The EU also embraces a variety of other institutions. The Committee of the Regions and the Economic and Social Committee are frequently consulted during the adoption of legislation. The European Investment Bank finances projects in less-developed regions, industrial restructuring and projects which cut across the borders of several Member States. The European Central Bank (ECB) is responsible for EU monetary policy, including setting interest rates and determining exchange rate policy. Its main objective, which is fixed by the EC Treaty, is to maintain price stability. The European System of Central Banks is a network that includes the ECB and the national central banks. Another network of institutions is composed specialist committees. The most common type of committee consists of a representative of each Member State and is presided by a Commission representative. In virtually every area of EC policy, committees act together with the Commission in adopting delegated legislation. At the same time, they serve as additional checks on Commission activity on the part of national governments. The EC also includes 15 specialized agencies, which deal with matters such as the environment, trade marks and designs, medicinal products, plant varieties, drug addiction, vocational training, working conditions, health and safety at work, and translation. These agencies differ from American regulatory agencies. Constrained by the EC law principle of institutional balance, they do not have independent decision-making power and serve primarily to advise the European Commission.
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Francis Snyder
Centennial Professor
Law Department
London School of Economics
Houghton Street
London WC2A 2AE
Phone +44-20-7955 7266
Fax +44-20-7955 7366

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