Introduction

British constitutionalism defines (primary) legislation as an act adopted by the Queen-in-Parliament. Behind this “compound” legislator stands a legislative procedure. This legal procedure links the House of Commons, the House of Lords and the monarchy. European constitutionalism also adopts a procedural definition of legislative power. However, unlike British constitutional law, the Treaties distinguish two types of legislative procedures: an ordinary legislative procedure and special legislative procedures. Article 289 TFEU states:

European “legislation” is thus – formally – defined as an act adopted by the bicameral Union legislator. According to the ordinary legislative procedure, the European Parliament and the Council act as co-legislators with symmetric procedural rights. European legislation is therefore seen as the product of a “joint adoption” by both institutions. But the Treaties also recognize special legislative procedures. The defining characteristic of these special procedures is that they abandon the institutional equality between the European Parliament and the Council. Logically, then, Article 289(2) TFEU recognizes two variants. In the first variant, the European Parliament acts as the dominant institution, with the mere “participation” of the Council in the form of “consent”. The second variant inverts this relationship. The Council is here the dominant institution, with the Parliament either participating through its “consent”, or in the form of “consultation”.

Having analysed the various Union institutions in Chapter 1, this Chapter explores their interaction in the creation of European (secondary) law. Sections 1 and 2 respectively discuss the ordinary and special legislative procedures in more detail.

Introduction

When the British Parliament legislates, it need not “justify” its acts. It is traditionally considered to enjoy a competence to do all things. This “omnipotence” is seen as inherent in the idea of a sovereign parliament in a “sovereign state”. The European Union is neither “sovereign” nor a “state”. Its powers are not inherent powers. They must be conferred by its foundational charter: the European Treaties. This constitutional principle is called the “principle of conferral”. The Treaty on European Union defines it as follows:

The Treaties employ the notion of competence in various provisions. Nevertheless, there is no positive definition of the concept. So what is a legislative competence? The best definition is this: a legislative competence is the material field within which an authority is entitled to legislate.

What are these material fields in which the Union is entitled to legislate? The Treaties do not enumerate the Union's “competences” in a single list. Instead, the Treaties pursue a different technique: they attribute legal competence for each and every Union activity in the respective Treaty title. Each policy area contains a provision – sometimes more than one – on which Union legislation can be based. The various “Union policies and internal actions” of the Union are set out in Part III of the Treaty on the Functioning of the European Union (Table 3.1).

The Treaties thus present a picture of thematically limited competences in distinct policy areas. This picture is however – partly – misleading. Three legal developments have posed serious threats to the principle of conferral. First, the rise of teleological interpretation that will be discussed in Section 1 below. The Union's competences are interpreted in such a way that they potentially “spill over” into other policy areas.

Introduction

The gradual integration of national markets into a “common” or “internal” market can be achieved by two complementary mechanisms. First, the Treaties may themselves “negate” certain national barriers to intra-European trade. For the free movement of goods, this form of negative integration was discussed in the previous Chapter. A second constitutional technique is “positive integration”. The Union here adopts positive legislation to – partly or exhaustively – remove the diversity of national laws. The idea of integration through legislation stands behind Article 26 TFEU. It states:

Legislative competences for positive integration are often found within the specific policy areas of the Union. However, the Treaties also contain a number of horizontal harmonization competences that allow the Union to create an “internal market”. These “internal market” competences can be found in Chapter 3 of Title VII of the TFEU. They have been the bedrock of the Union's positive integration programme. Articles 114 and 115 here provide the Union with a harmonization competence “for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market”.

These two general harmonization competences apply to all four fundamental freedoms. They are complemented by more “specific” harmonization competences. With regard to fiscal measures, Article 113 allows the Union to harmonize legislation on “forms of indirect taxation to the extent that such harmonisation is necessary to ensure the establishment and functioning of the internal market and to avoid distortions of competition”. By contrast, Article 116 specifically targets distortions of competition, while Article 118 empowers the Union “[i]n the context of the establishment and functioning of the internal market” to “establish measures for the creation of European intellectual property rights”.

All EU cases are traditionally identified by a number/year figure that is followed by the names of the parties. Cases before the Court of Justice are preceded by a C-, while cases decided before the General Court are preceded by a T- (for the French ‘Tribunal’). The Civil Service Tribunal prefixes its cases with an F- (for the French ‘Fonction publique’).

In the past, all judgments of all EU Courts were published in paper form in the purple-bound ‘European Court Reports’ (ECR). Cases decided by the Court of Justice were published in the ECR-I series; cases decided by the General Court were published in the ECR-II series, while cases decided by the Civil Service Tribunal were published in the ECR-SC series. However, as of 2012, the entire Court of Justice of the European Union has decided to go “paperless” and now publishes its judgments only electronically. The two principal websites here are the Court's own curia-website (http://curia.europa.eu/jcms/jcms/j_6/), and the Union's general EU lexwebsite (http://eur-lex.europa.eu/homepage.html). For judgments referred to in the main text of this book, the easiest way is however to go to www.schutze.eu, which contains the ‘Lisbon’ version of all classic EU Court judgments mentioned in this text.

Once upon a time, judgments issued by the European Court of Justice were – to paraphrase Hobbes – “nasty, brutish and short”. Their shortness was partly due to a structural division the Court made between the “Issues of Fact and of Law” (or later: “Report for the Hearing”) – which set out the facts, procedure and the arguments of the parties – and the “Grounds of Judgment”. Only the latter constituted the judgment sensu stricto and was often very short indeed. The Court originally also tried to adopt the “French” judicial ideal of trying to put the entire judgment into a single “sentence”! A judgment like Van Gend en Loos contains about 2,000 words – not more than an undergraduate essay.

Introduction

Apart from goods, the European Treaties also aim to ensure the free movement of certain categories of persons. The constitutional choice for an internal “market” in persons was originally informed by an economic rationale. The market-building philosophy behind the European Treaties thus limited the right to move to economically active persons.

The Treaties thereby distinguished between two classes of economic migrants, namely: “employed” and “self-employed” persons; and the Treaty title dealing with persons consequently addresses “Workers” in Chapter 1 and the “Right of Establishment” in Chapter 2. Each of the two chapters contains a central prohibition, whose wording outlaws restriction on the “import” of persons by the (host) State. Yet the Court has found that both provisions will equally apply to restrictions on the free movement of persons by the “exporting” (home) State. Both chapters also contain a number of legislative competences for the Union. These competences have been widely exercised in the past; and for this reason, European law on the free movement of persons is a rich mixture of primary and secondary law. But the complexity within this area is due to a second factor: the existence of European citizenship rights. Article 20 TFEU grants every European citizen the “right to move and reside freely within the territory of the Member States”. This general movement right is however a residual right. It must “be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder”. Yet the general provisions on European citizenship have themselves had an effect on the specific movement rights for economically active citizens. This symbiotic relationship is embodied in the “Citizenship Directive”.

This Chapter looks into the complex constitutional arrangements governing the free movement of persons in four sections. Sections 1 and 2 analyse the special free movement rights for economically active persons, that is: workers and the self-employed. Section 3 investigates the general rights to free movement granted to all European citizens. Finally, Section 4 explores the various possible justifications to restrictions on the free movement of persons.

Introduction

National courts are the principal judicial enforcers of European law. “Ever since Van Gend en Loos the Court has maintained that it is the task of the national courts to protect the rights of individuals under [Union] law and to give full effect to [Union] law provisions.” Indeed, whenever European law is directly effective, national courts must apply it; and wherever a Union norm comes into conflict with national law, each national court must disapply the latter. The Union legal order thereby insists that nothing within the national judicial system must prevent national courts from exercising their functions as “guardians” of the European judicial order. In Simmenthal, the Court thus held that each national court must be able to disapply national law – even where the national judicial system traditionally reserves that power to a central constitutional court:

Functionally, the direct effect (and supremacy) of European law thus transforms every single national court into a “European” court. This decentralized system differs from the judicial system in the United States in which the application of federal law is principally left to “federal” courts. Federal courts here apply federal law, while State courts apply State law.

This Part concentrates on the “enforcement” of Union law in the courts. We shall see that European law establishes rights and obligations that directly affect individuals. The direct effect of European law in the national legal orders will be discussed in Chapter 5. Where a European norm is directly effective, it will also be “supreme” over national law. The “supremacy” of European law is the subject of Chapter 6. How will individuals enforce their “supreme” European rights? Chapters 7 and 8 look at the dual enforcement machinery within the Union legal order. Individuals will typically enforce their European rights in national courts. The Union legal order has here required national courts to provide effective remedies for the enforcement of European rights; in order to assist these courts in the interpretation and application of European law, the Union envisages a preliminary reference procedure. Having the indirect enforcement of European law through the national courts discussed in Chapter 7, the direct enforcement of European law in the European Courts will be explored in Chapter 8.

Introduction

The European Treaties establish a dual enforcement mechanism for European Union law. Apart from the decentralized enforcement by national courts, the Union legal order equally envisages the centralized enforcement of European law in the European Courts. The judicial competences of the European Courts are enumerated in the section of the TFEU dealing with the Court of Justice of the European Union.

Four classes of judicial actions will be discussed in this Chapter. The first class is typically labelled an “enforcement action” in the strict sense of the term. This action is set out in Articles 258 and 259 TFEU and concerns the failure of a Member State to act in accordance with European law (Section 1). The three remaining actions “enforce” the European Treaties against the Union itself. These actions can be brought for a failure to act (Section 2), for judicial review (Section 3), and for damages (Section 4).

Enforcement Actions against Member States

Where a Member State breaches European law, the central way to “enforce” the Treaties is to bring that State before the European Court. The European legal order envisages two potential applicants for enforcement actions against a failing Member State: the Commission and another Member State. The procedure governing the former scenario is set out in Article 258; and the – almost – identical procedure governing the second scenario is set out in Article 259. Both procedures are inspired by international law logic. For not only are individuals excluded from enforcing their rights under that procedure, the European Court also cannot repeal national laws that violate European law. Its judgment will simply “declare” that a violation of European law has taken place. However, as we shall see below, this declaration may now be backed up by financial sanctions.

(a) The Procedural Conditions under Article 258

Enforcement actions against a Member State are “the ultima ratio enabling the [Union] interests enshrined in the Treat[ies] to prevail over the inertia and resistance of Member States”.

The idea of European union is as old as the European idea of the sovereign State. Yet the spectacular rise of the latter overshadowed the idea of a European Union for centuries. Within the twentieth century, two ruinous world wars and the social forces of globalization have however increasingly discredited the idea of the sovereign State. The decline of the – isolationist – State found expression in the spread of inter-state cooperation. The various efforts at European cooperation after the Second World War formed part of that transition from an international law of coexistence to an international law of cooperation. Yet European “integration” would go far beyond the traditional forms of international “cooperation”.

The European Union was born in 1952 with the coming into being of the European Coal and Steel Community (ECSC). Its original members were six European States: Belgium, France, Germany, Italy, Luxembourg, and the Netherlands. The Community had been created to integrate one industrial sector; and the very concept of integration indicated the wish of the contracting States “to break with the ordinary forms of international treaties and organizations”. The 1957 Treaties of Rome created two additional Communities: the European Atomic Energy Community and the European (Economic) Community. The “three Communities” were partly “merged” in 1967, but continued to exist in relative independence. A first major treaty reform was effected in 1987 through the Single European Act, but an even bigger organizational leap was taken by the 1992 Maastricht Treaty. The latter integrated the three Communities into the (Maastricht) European Union.

But for a decade, this European Union was under constant constitutional construction (Table 0.1). Treaty amendment followed treaty amendment! And in an attempt to get away from the ever-repeating minor treaty amendments, a European Convention was charged to prepare a major reform that would result in the “Constitutional Treaty”. The 2004 Constitutional Treaty would have effected the biggest structural change in the history of the European Union. Yet the Treaty failed when Dutch and French referenda were lost; and it took almost another decade to rescue the reform effort into the 2007 Reform (Lisbon) Treaty.

Introduction

Competitive markets are markets in which economic rivalry is to enhance efficiency. Market “forces” determine the winners and losers of this rivalry, and competition will – ultimately – force inefficient losers out of the market.

Who, then, forces the winner(s) to act efficiently? By the end of the nineteenth century, this question was first raised in the United States of America. After a period of intense competition “the winning firms were seeking instruments to assure themselves of an easier life” and they started to use – among other things – the common law “trust” to coordinate their behaviour within the market. To counter the anticompetitive effects of these trusts, the American legislator adopted the first competition law of the modern world: the Sherman Antitrust Act (1890). The Act attacked two cardinal sins within all competition law: anti-competitive agreements, and monopolistic markets.

The US experience has significantly shaped the competition law of the European Union. However, the inclusion of a Treaty Chapter on EU competition law was originally rooted not so much in competition concerns as such. It was rather the “general agreement that the elimination of tariff barriers would not achieve its objectives if private agreements or economically powerful firms were permitted to be used to manipulate the flow of trade”. EU competition law was here – at first – primarily conceived as a complement to the internal market. The principal provisions on EU competition law are found in Chapter 1 of Title VII of the TFEU. The Chapter is divided into two Sections – one dealing with classic competition law, that is: “[r]ules applying to undertakings” the other with public interferences in the market through “[a]ids granted by States”.

EU competition law is thereby built on four pillars. The first pillar deals with anti-competitive cartels and can be found in Article 101. The second pillar concerns situations where a dominant undertaking abuses its market power and is covered in Article 102. The third pillar is unfortunately invisible: when the Treaties were concluded, they did not mention the control of mergers.

Introduction

Since European law is directly applicable in the Member States, it must be recognised alongside national law by national authorities. And since European law may have direct effect, it might come into conflict with national law in a specific situation.

Where two legislative wills come into conflict, each legal order must determine how these conflicts are to be resolved. The resolution of legislative conflicts requires a hierarchy of norms. Modern federal States typically resolve conflicts between federal and state legislation in favour of the former: federal law is supreme over State law. This “centralised solution” has become so engrained in our constitutional mentalities that we tend to forget that the “decentralized solution” is also possible: local law may reign supreme over central law. Supremacy and direct effect are thus not different sides of the same coin. While the supremacy of a norm implies its direct effect, the direct effect of a norm will not imply its supremacy. Each federal legal order must thus determine which law prevails. The simplest supremacy format is one that is absolute: all law from one legal order is superior to all law from the other. Absolute supremacy may however be given to the legal system of the smaller or the bigger political community. Between these two extremes lies a range of possible nuances.

When the Union was born, the European Treaties did not expressly state the supremacy of European law. Did this mean that supremacy was a matter to be determined by the national legal orders; or was there a Union doctrine of supremacy? We shall see that there are two perspectives on the supremacy question. According to the European perspective, all Union law prevails over all national law. This “absolute” view is not shared by the Member States. Indeed, according to the national perspective, the supremacy of European law is relative: some national law is considered to be beyond the supremacy of European law.

In the contemporary world, everybody is expected to have a nationality, just as everybody is expected to have a gender. However, defining the national identity has been, and still is, a challenge in Cuba. The excessive preoccupation of the leaders and the population in Cuba with defining and redefining their national identity from all possible perspectives has survived all ideologies – socialist, revolutionary, communist and, above all, Cuban heterosexual – but with no success until recently in integrating the homosexual community into the portrait of the nation. As in the rest of the world, though, homosexuals have long existed in Cuba. Due to the strong component of machismo, they have defined themselves within the margins of invisibility, marginality, repression, intellectualism and, in many cases, exile.

The starting point of this chapter is Foucault's idea that the institutionalisation of repressive mechanisms in relation to sexual conduct provokes the opposite effect: that of calling attention to the existence of an alternative discourse on sexuality (Foucault 1992: 155–6). This chapter therefore constitutes an attempt to examine the implications of the debate on homophobia in Cuba following the departure of the Spanish in 1898 and the destabilising effect of this on the numerous attempts to define Cuban national identity.

Homosexuality in Cuba is, as Epps points out, ‘largely a matter of aspect, a problem of public visibility, a highly politicized question of style’ (Epps 1995: 242). In my approach to homophobia in Cuba, the issue of public visibility and body language is essential in connection with the idea of the ‘closet’, which Sedgwick defines as ‘the defining structure for gay oppression in this century’, and which ultimately may cause a problematic space for creativity (Sedgwick 1990: 71). Any study that claims that the ‘closet’ is central to gay identity and experience, Sedgwick says, ‘will risk glamorizing the closet itself, if only by default; will risk presenting as inevitable or somehow valuable its exactions, its deformations, its disempowerment and sheer pain’ (Sedgwick 1990: 68).

Cuban society has long ignored, denied and alienated homosexuals by keeping them in a ‘closet’. This has happened with varying intensity, depending on the epoch. As for the representation of homosexuality in Cuban film and literature and the extent to which it was silenced after Fidel Castro came into power in 1959, it is crucial to look back at the narrative from the end of the nineteenth century onwards.