International Business Law Part I

1
International Business LawPart I

• European Union
• Law

2

• A HISTORICAL
• OVERVIEW

3
The European Union

• Two main Ideas, two main Missions
• Europe
• Union

4
Europe

• A common set of values which can distinguish
  Europe from non-Europe
• EUROPEAN IDENTITY

5
European Union

• The unification of all the States which take part
  in the European Identity

6
Schuman-Monnet Declaration9 May 1950

• Unification of Europe
• as the only means for longstanding peace (a
  political project)
• as a step by step project (first step the
  unification of a limited field, the coal and
  steel production)
• by means of a supranational organizazion open to
  all countries willing to take part

7
The Treaty of Paris1951

• The European Coal and Steel Community
• (ECSC)
• Six States
• France
• Germany
• Italy
• Belgium
• Nederlands
• Luxembourg

8
The Treaties of Rome1957

• The European Defence Community (1953) failed
• The European Economic Community (EEC)
• The European Atomic Energy Community (EURATOM)
• Objectives establishment of a common market
  (customs union, four fundamental freedoms,
  competition policy, regulation of State
  intervention in the economy, harmonization of
  fiscal regimes of goods, general cooperation in
  economic fields)
• Original institutional arrangement (Commission,
  Assembly, Council, European Court of Justice)

9
During the 60s

• 1958 De Gaulle as President of France (support
  for a Europe of nation-States and
  intergovernmental cooperation)
• 1963 French veto on British membership
• 1965 The Merger Treaty (a single Commission and
  a single Council for three communities) French
  refuse to take part in EEC business
• 1966 Luxembourg Accord (Agreement to disagree)

10
During the 70s

• 1963 First enlargement UK, Ireland and Denmark
  (resignation of De Gaulle)
• 1976 Agreement in the Council for direct
  elections of the European Parliament
• 1979 First direct election of the European
  Parliament

11
During the 80s

• 1981 accession of Greece
• 1986 accession of Spain and Portugal
• 1986 Single European Act

12
Single European Act1986

• Completion of the common market by 31 December
  1992
• Institutional reform (cooperation procedure
  formal recognition of the European Council)
• Laying down of foundations for greater economic
  and monetary integration
• Intergovernmental cooperation in foreign policy

13
During the 90s

• 1992 The Maastricht Treaty
• Application for membership by 12 Eastern Europe
  States
• 1993 Copenhagen criteria
• Stability of institutions guarenteeing democracy,
  the rule of law, human rights, protection of
  minorities
• Existence of a functioning market economy
• Ability to assume the obligation of membership
• Adjustment of the national administratve
  structures
• 1997 The Treaty of Amsterdam

14
The Maastricht Treaty1992

• From the European Economic Community to the
  European Union, from policies to polity
• Three pillars
• First pillar The European Community (EC)
• Second pillar Common Foreign and Security Policy
  (CFSP)
• Third pillar Justice and Home Affairs (JHA)
• (EC supranational CFSP and JHA
  intergovernmental)
• A single institutional framework

15
Main features

• Serious consideration of democracy and legitimacy
• Institution of EU citizenship
• Introduction of the subsidiarity principle

16
The drama of ratification

• First referendum in Denmark no (second
  referendum in 1993 yes)
• British Parliament motion of confidence
• Challenges to the Treaty before national courts
  (UK, Spain, France, Denmark and Germany)

17
The Treaty of Amsterdam1997

• Area of Freedom, Security and Justice
  (integration of Schengen Agreements into the
  legal framework of the EU immigration, asylum
  and the rights of non-EU nationals brought within
  EC legislative competences)
• Third pillar renamed as Policing and Judicial
  Cooperation in Criminal Matters (PJCC)
• Stronger commitment for fundamental rights and
  enforcement of the principle of
  non-discrimination
• Provisions for Enhanced Cooperation
• Increasing number of opt-outs (a multi-speed
  European Union)

18
After Amsterdam

• Negotiations for membership opened with
• Czech Republic
• Poland
• Hungary
• Slovenia
• Estonia
• Latvia
• Lithuania
• Malta
• Cyprus
• Slovakia
• Bulgaria
• Romania

19
The Treaty of Nice2000

• Institutional reform directed at preparing Union
  for enlargement and at managing internal
  dissatisfaction
• Different allocation of seats in the European
  Parliament
• Recalculation of the distribution of the votes
  between national government within the Council
• a poor and unsatisfactory compromise
• Proclamation of the Charter of Fundamental Rights
  of the European Union (not legally binding)

20
The way forwards

• 2000 Nice Declaration on the Future of the
  Union
• 2001 Laeken Declaration on the Future of the
  European Union
• 2001 Laeken Establishment of the Convention on
  the Future of Europe (its task to draft the
  Constitutional Treaty)

21
The Constitutional TreatyRome 2004

• Four parts
• Part I general provisions on objectives,
  symbols, fundamental rights, citizenship,
  democracy, institutional framework, law-making
• Part II Charter of Fundamental Rights (legally
  binding)
• Part III EU policies
• Part IV closing provisions
• (Abolition of the three-pillar structure)

22
From Rome to Lisbon

• May-June 2005 French and Dutch referendum
  against the Treaty
• Period of reflection
• A two-fold process
• A political agreement (June 2007)
• An Intergovernmental Conference with task limited
  by the mandate of the political agreement
  (December 2007)

23
The Treaty of Lisbon2007

• Two Treaties
• The Treaty on European Union
• The Treaty of the functioning of the European
  Union
• Abolition of all the constitutional provisions
• The Charter of Fundamental Rights as an annex to
  the Treaty

24
September 2009

• The Treaties of Lisbon were ratified by all the
  Member States except
• Ireland (second referendum on 2 October 2009
  yes)
• Germany (sentence of the Federal Constitutional
  Court, 30 June 2009)
• Poland
• Czeck Republic

25
Now

• The Treaties of Lisbon came into force on 1
  December 2009

26
EU INSTITUTIONAL FRAMEWORK
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MAIN INSTITUTIONS

• Commission
• Council
• European Council
• European Parliament
• Court of Justice
• European Central Bank

28

• NOT SEPARATION OF POWERS
• BUT
• INSTITUTIONAL BALANCE

29
COMMISSION

• Three tiers
• College of Commissioners (political arm)
• Directorates-General (administrative arm
  similar to national Ministries)
• Cabinets (offices of the individual
  Commissioners)

30
COMPOSITION OF THE COMMISSION

• One Commissioner from each Member State
• Persons whose indipendence is beyond doubt (no
  conflict of interest)

31
APPOINTMENT OF THE COMMISSION

• Appointment of the President by the national
  government and his approval by the European
  Parliament
• Nomination of individual Commissioners by the
  President
• Approval by the European Parliament
• Appointment by the Council

32
POWERS OF THE PRESIDENT OF THE COMMISSION

• Involved in the appointment of individual
  Commissioners
• Allocation of the individual portfolios
• Dismission of individual Commissioners (Lisbon
  Treaty)
• Political guidance to the Commission
• Representative role

33
POWERS OF THECOMMISSION

• Legislative power in limited fields
• Quasi-legislative powers (delegate legislation)
• Legislative proposals and Agenda-setting
• Executive powers
• Supervisory powers

34
COUNCIL

• COMPOSITION
• one Minister from each Member State (the
  Minister who id equipped to represent the
  government on the topic in question)

35
POWERS OF THE COUNCIL

• Power of final decision on the adoption of
  legislation (in some areas together with the
  European Parliament)
• Decision to delegate legislative powers to the
  Commission

36
MANAGEMENT OF THE COUNCIL

• PRESIDENCY
• - rotation between the Member States for a
  six-month period
• - chairs Council meetings
• - represents the Council outside
• COREPER
• (Committee of Permanent Representatives)
• - prepares the work of the Council

37
EUROPEAN COUNCIL

• COMPOSITION
• - Heads of government of the Member States
• - President of the Commission
• TASKS
• - makes decisions about the future of the EU
• - development of the Community policy
• - definition of EU priorities
• - definition of principles and guidelines for a
  common foreign and security policy (II Pillar)

38
PRESIDENT OF THE EUROPEAN COUNCIL(Lisbon Treaty)

• Elected by the European Council for a once
  renewabile two-and-a-half-year term
• Not holding national office
• Additional member of the European Council
• TASKS
• - chairs and drives forward the work of the
  European Council
• - presents reports to the European Parliament
• - represent the European Union externally on
  issue concerning its Common Foreign and Security
  Policy

39
EUROPEAN PARLIAMENT

• Aimed at representing peoples of the Member
  States
• Initially made up of representatives from
  national Parliaments
• From 1979 directly elected
• Proportional representation system
• Seats allocated from among Member States (more or
  less) on the basis of population
• Lack of European political parties

40
POWERS OF THE EUROPEAN PARLIAMENT

• Legislative power (consultation or co-decision
  procedure)
• Approval of the President of the Commission and
  of the College of Commissioners at the beginning
  of the term (Barroso Commission, 2004
  Buttiglione case)
• Dismissal of the Commission during the term
  (motion of censure)

41
COURT OF JUSTICE

• COMPOSITION
• One judge from each Member State (persons whose
  indipendence is beyond doubt and suitable for the
  highest judicial office in their country)
• 8 Advocates General (study of cases and drafts of
  opinions)

42
COURT OF JUSTICEJURISDICTION

• Preliminary reference from national Courts
• Enforcement actions brought by the Commission
  against European institutions or Member States
  for breaching of European Union law
• Enforcement actions brought by Member States
  against other Member States for breaching of
  European Union Law
• Judicial review of European Community
  institutions (recourse for annulments)

43
COURT OF FIRST INSTANCE

• Established in 1989
• Made up of at least one judge from each Member
  State
• Jurisdiction actions by private parties against
  Community action or inertia or seeking damages
  from the Community
• Decisions can be appealed before the Court of
  Justice

44
EUROPEAN UNIONSOURCES OF LAW
45
TREATY ON EUROPEAN UNION

• INTERNATIONAL SOURCE OF LAW
• BUT
• THE CONSTITUTIONAL CHARTER OF THE EUROPEAN UNION

46
EUROPEAN UNIONSOURCES OF LAW

• Acts passed by the European institutions
• Hierarchically subordinate to the Treaty
• Different acts for each Pillar

47
EUROPEAN COMMUNITY ACTS

• ART 249 CE
• Regulations
• Directives
• Decisions
• Recommendations and Opinions (not legally binding)

48
REGULATIONS

• General application
• Legally binding as a whole
• Direct applicability (automatic incorporation
  into the domestic legal order of each Member
  State)
• Aimed at uniformity of norms in all the Member
  States

49
DIRECTIVES

• Addressed to the Member States
• Legally binding as the result to be achieved
• Choice of means and methods of implementation
  left to the national authorities
• Need of a national transposition by the deadline
  stated in the directive
• Aimed at harmonisation of norms in all the Member
  States

50
DECISIONS

• Legally binding as a whole
• Binding only upon the addressee
• Similar to domestic administrative acts

51
COMMON FOREIGN AND SECURITY POLICE(II PILLAR
ART. 12 EU)

• Principles and general guidelines
• Common strategies
• Joint actions
• Common positions
• (All acts with unclear legal status)

52
POLICING AND JUDICIAL COOPERATION IN CRIMINAL
MATTERS(III PILLAR ART.. 34 EU)

• Common positions (unclear legal effect)
• Framework decisions (similar to EC Directives)
• Decisions (similar to EC Decisions)
• Conventions

53
SOFT LAW

• Not legally binding
• Practical effects
• More flexible than hard law
• Often used to enlarge European Union competence

54
EU ACTSUNDER THE LISBON TREATY

• Same acts for the European Union as a whole
  (three-pillar structure abolished)
• Regulations
• Directives
• Decisions
• Delegated regulations
• Implementing regulations

55
LEGISLATIVE PROCEDURES

• Council legislation without consultation of the
  Parliament
• Consultation procedure (Parliamentary opinion not
  binding for the Councli)
• Co-decision procedure (Parliamentary power of
  veto)

56
LEGISLATIVE PROCEDUREUNDER THE LISBON TREATY

• CO-DECISION PROCEDURE
• ORDINARY LEGISLATIVE PROCEDURE

57
THE CONSTITUTIONALISATION

• OF THE E.U. LEGAL ORDER

58
VAN GEND EN LOOS1963

• Teleological reasoning
• Reference to the people
• Right conferred on individuals directly by
  Community Law
• Community as a new legal order of international
  law

59
PRIMACY

• COMMUNITY LAW TAKES PRECEDENDCE
• OVER
• NATIONAL LAW

60
COSTA V. ENEL1964

• The law stemming from the Treaty could not
  be overriden by domestic legal provisions
  without being deprived of its character as
  Community law and without the legal basis of the
  Community itself being called into question

61
AMMINISTRAZIONE DELLE FINANZE DELLO STATO v.
SIMMENTHAL1978

• In accordance with the principle of the
  precedence of Community law, the relationship
  between provisions of the Treaty and directly
  applicable measures of the institutions on one
  hand and the national law of the Member State on
  the other is such that those provisions and
  measures not only by their entry into force
  render automatically inapplicable any conflicting
  provision of current national law, but also
  preclude the valid adoption of new national
  legislative measures to the extent to which they
  would be incompatible with Community provisions.

62

• Every national court must, in a case within its
  jurisdiction, apply Community law in its entirety
  and protect rights which the latter confers on
  individuals and must accordingly set aside any
  provision of national law which may conflict with
  it, whether prior or subsequent to the Community
  rule

63
DIRECT EFFECT

• Nationals of Member States may on the basis of
  Community law provisions lay claim to rights
  which the national courts must protect (Van Gend
  en Loos)

64
EARLY CRITERIA FOR DIRECT EFFECT

• Has direct effect into national legal order
• A norm of the Treaty
• Clear
• Unconditional
• Negative prohibition, not dependent upon further
  implementation
• Only vertical direct effect (between a private
  party and State)

65
LIBERALISATION OFDIRECT EFFECT1

• Defrenne v. Sabena
• 1976
• Has direct effect into national legal order
• A norm of the Treaty
• Sufficiently precise and unconditional
• Negative prohibition not needed
• Horizontal direct effect (between private parties)

66
LIBERALISATION OFDIRECT EFFECT2

• Van Duyn v. Home Office
• 1974
• DIRECT EFFECT OF DIRECTIVES
• Where the Community authorities have, by
  Directive, imposed on Member States the
  obligation to pursue a particular course of
  conduct, the usefull effect of such an act would
  be weakened if individuals were prevented from
  relying on it before their national courts and
  if the latter were prevented from taking it into
  consideration as an element of Community law

67
DIRECT EFFECT OF THE DIRECTIVESWHEN

• From the end of the transposition period
• Only if the Member State has failed to implement
  (Estoppel clause)
• No horizontal direct effect

68
DUTY OF CONSISTENT INTERPRETATION(INDIRECT
EFFECT)

• Von Colson
• 1984
• It is for the national court to interpret and
  apply the legislation adopted for the
  implementation of the Directive in conformity
  with the requirements of Community law, insofar
  as it is given a discretion to do so under
  national law.

69
EXTENT OF THE DUTY

• Marleasing SA
• 1990
• All national legislation is to be interpreted in
  the light of EC Law, irrespective of wether it is
  implementing legislation or not and irrispective
  of wether it was enacted prior or subsequent to
  the provision of EC law in question.

70
WHEN

• Only from the end of the transposition period
• If the Member State has failed to implement
• Horizontal indirect effect admissible

71
STATE LIABILITY

• Francovich and Bonifaci
• 1991
• It is a principle of Community law that the
  Member States are obliged to make good loss and
  damage caused to individuals by breaches of
  Community law for which they can be held
  responsible

72
CRITERIAFOR STATE LIABILITY

• The result prescribed by the Directive should
  entail the grant of rights to individuals
• It should be possible to identify the content of
  those rights on the basis of the provisions of
  the Directive
• A causal link between the breach of the States
  obligation and the loss and damage suffered by
  the injured parties has to exist

73
EXPANSION OF STATE LIABILITY

• Köbler v. Austria
• 2003
• In the light of the essential role played by the
  judiciary in the protection of the rights derived
  by individuals from Community rules, the full
  effectiveness of those rules wuold be called in
  question and the protection of those rights would
  be weakened if individuals were precluded from
  being able, under certains conditions, to obtain
  reparation when their rights are affected by an
  infringement of Community law attributable to a
  decision of court of a Member State adjudicating
  at last instance

74
EU LAW and ITALIAN LAW
75
CONSTITUTIONAL BASES

• ART. 11 Const.
• Italy agrees to limitations of sovereignty
  when they are necessary to allow for a legal
  system of peace and justice between nations,
  provided the principle of reciprocity is
  guaranteedit promotes and encourages
  international organizations furthering this end

76

• ART. 117, par. 1
• Legislative power belongs to the State and
  Regions in accordance with the Constitution and
  within the limits set by European Union law and
  international obbligations

77
FIRST PERIODSENT. 14/1964

• Dualistic approach
• Community norms and national norms possess the
  same binding authority the one most recent
  prevails
• Denial of supremacy

78
SECOND PERIODSENT. 183/1983 SENT. 232/1975

• Dualistic approach
• Acceptance of supremacy
• Two-folded judicial guarantee
• Direct application by national judges of the
  Community more recent norm
• Declaration of unconstitutionality of the
  national more recent norm (indirect infringement
  of art. 11 Const.)

79
THIRD PERIODSENT. 170/1984

• Dualistic approach
• Direct application by the national judges of
  every Community norm, regardless of the time of
  their enactment
• Irrelevancy of the national norm to state the
  cases before national judges

80
RESIDUAL JURISDICTION OF THE CONSTITUTIONAL COURT

• Sent. 384/1994 sent. 94/1995
• (Direct procedures between State and Regions)
• The national or regional norms conflicting with
  Community law are declared unconstitutional

81
COUNTER-LIMITSDOCTRINE

• The Community law can NOT violate fundamental
  rights or other basic values protected by the
  Italian Constitution
• (SUPREMACY UNDER CONDITION)

82
DIRECT EFFECT

• Every Community norm, if clear and unconditional,
  can have direct effect in the Italian legal order
• Decisions of the European Court of Justice
• Directives

83
PRELIMINARY REFERENCE FROM THE ITALIAN
CONSTITUTIONAL COURT

• Ord. 103/2008 the first preliminary reference
  from the Italian Constitutional Court in a direct
  procedure between State and Regions