The Treaty on European Union 1993-2013: Reflections from Maastricht

The Treaty on European Union, popularly known as the Maastricht Treaty, has had a profound impact on the process of European integration. This book commemorates the entry in force of the Treaty 20 years ago by evaluating the legal impact it has had on the European Union's institutional framework and its policies. It includes contributions on a wide variety of topics, including Economic and Monetary Union, Union citizenship, fundamental rights, foreign affairs and defence policy, educational policy and environmental policy. The different contributions revisit the reasons for the changes the Maastricht Treaty has brought about and examine their development over the years, identifying unexpected success stories, unfulfilled expectations, missed opportunities and future challenges. The contributors are or were associated with the Maastricht Centre for European Law or the Faculty of Law of the Maastricht University, giving this book a unique 'Maastricht' flavour. This book will be of interest to legal scholars and practitioners with a keen interest in EU law and European integration.

List of Authors List of Abbreviations Acknowledgements Foreword Maartje de Visser & Anne Pieter van der Mei The 20th Anniversary of the Maastricht Treaty: Reflections from Maastricht Elise Muir Constitutional Change in the Shadow of the Maastricht Treaty 1. Introduction 2. The Substantive Core: The Internal Market Sharpened 2.1. Refining the Reach of Negative Economic Integration 2.2. Re-framing the Blossoming Potential for Positive Integration 2.3. Constitutional Implications: 'Integrative Federalism' 3. The Institutional Framework: Acceptance of Integration through Judicial Law Making 3.1. The Court of Justice as the Ultimate Guardian of the Dual Representation of People and States at the EU Level 3.2. Intensification of the Centralizing Powers of EU Law 3.3. The Politics of Judicial Law Making 4. Conclusion Bibliography Monica Claes A Look through the Lens of the Member States' Constitutions: Maastricht as the Beginning of a New Era? 1. Introduction 2. National Constitutional Amendments Accompanying Treaty Amendment 3. (Constitutional) Courts' Involvement in the Ratification Process 4. Final Remarks Bibliography Bruno De Witte The Elusive Unity of the EU Legal Order after Maastricht 1. Introduction: The Unity of the Community Legal Order and the Maastricht Treaty's Separate Paths 2. The Slow Absorption of the Organizational Dichotomy between the Community and the Union 2.1. The Creation of the Pillar Structure at Maastricht 2.2. Evolution of the Pillar Structure from Maastricht to Nice 2.3. Towards the Merger of the European Community and the European Union (2002-2009) 3. The Spread of Variable Geometry from the Maastricht Opt-Outs to the Euro Crisis 3.1. Pre-Maastricht Closer Cooperation 3.2. The Birth of Institutional Flexibility in the Maastricht Treaty 3.3. The Creation and Evolution of Enhanced Cooperation 3.4. The Multiplication of Structured Opt-Out Regimes and the Revival of Inter Se Agreements 3.5. The Permanence of Many-Faced Differentiation 4. Conclusion: One Legal Order, but a Fragmented One Bibliography Maja Brkan The Role of the European Court of Justice from Maastricht to Lisbon: Putting Together the Scattered Pieces of Patchwork 1. Introduction 2. General Tendency in the Case Law: Gradual Changing of Focus 3. Former First Pillar: Strengthening the Role of the ECJ 3.1. Citizenship 3.2. Economic and Monetary Union 4. Former Second Pillar: The Odd One Out 5. Former Third Pillar: From a Shy Start to a Fully-fledged Jurisdiction 6. Conclusion: Putting Together the Pieces of Patchwork Bibliography Phedon Nicolaides Withdrawal from the European Union: An Option with Unforeseen Consequences 1. Introduction 2. The Entry and Exit Procedures Compared 2.1. Entry Procedure 2.2. Exit Procedure 2.3. Differences between Entry and Exit 3. The Challenges for the Withdrawing Member State 4. Non-application of EU law or Emergence of a Legal Lacuna? 5. Two Case Studies 5.1. Case Study I: Withdrawal of the United Kingdom from the EU 5.2. Case Study II: Procedural Issues: The Referendum on Possible Withdrawal of Scotland from the United Kingdom 6. Conclusions Bibliography Anja Wiesbrock & Katharina Eisele Twenty Years After Maastricht and Nineteen Years After Porto: What Has Become of the Objective of Creating a Dynamic and Homogeneous European Economic Area? 1. Introduction 2. Existing Mechanisms to Ensure a Homogeneous and Dynamic Interpretation of the EEA Agreement 3. Dynamic Interpretation in the Light of EU Treaty Amendments 3.1. The Objectives of the EEA Agreement 3.2. The Central Role Accorded to the Protection of Individual Rights 3.3. Principles Forming an Integral Part of the EEA Agreement: Guaranteeing Effectiveness? 3.4. Intentional Differences between EU and EEA Law 4. Conclusion Bibliography Diane Fromage Subsidiarity: From a General Principle to an Instrument for the Improvement of Democratic Legitimacy in Lisbon 1. Introduction 2. The Principle of Subsidiarity in Maastricht: A Magic Formula? 3. Evolution (or Revolution?) since Maastricht 4. Subsidiarity and its Content in Lisbon 5. The Consequences of the Introduction of the Early Warning System 5.1. EU Level 5.2. Horizontal Cooperation 5.3. National Level 6. Subsidiarity Twenty Years Later: Brief Assessment and Outlook Bibliography Christian Syrier Born in Maastricht: The Right of Inquiry of the European Parliament Introduction 2. The Right of Inquiry Prior to Maastricht 3. The Right of Inquiry Since Maastricht 3.1. Powers of Committees of Inquiry 3.2. Inquiry Proceedings 3.3. The Right of Inquiry in Practice: Three Inquiries Since Maastricht 3.3.1. Transit Inquiry 3.3.2. BSE Inquiry 3.3.3. Equitable Life Inquiry 3.3.4. Comparing the Three Inquiries 3.3.4.1. Working Methods 3.3.4.2. Legal Limitations in Practice 3.3.4.3. The Right of Inquiry: A Useful Instrument? 4. The Right of Inquiry: Where to Go From Here? 5. Conclusion Bibliography Sarah Schoenmaekers The Increasing Influence of the Ombudsman in the Institutional System of the European Union Introduction and Historical Background 2. Mandate of the European Ombudsman 2.1. Inquiries 2.1.1. The Initiation of Inquiries in Response to a Complaint 2.1.2. The Initiation of Inquiries on Own Initiative 2.2. Investigating Facts 2.3. Remedial Action 3. Changing Role? 4. Future Outlook Bibliography Maartje de Visser Taking Care of Business? Ensuring Respect for Fundamental Rights in Europe 1. Introduction 2. Maastricht: Official Recognition of a Commitment to Fundamental Rights Protection in the Treaty 3. Keeping Member States in Check: The Development of an Internal Control Mechanism 4. The External Dimension: Fundamental Rights Protection in the Accession Process 5. The Need for New Internal Institutional Arrangements? 6. Final Remarks Bibliography Jan Wouters & Hanne Cuyckens Festina Lente: CFSP from Maastricht to Lisbon and Beyond 1. Introduction 2. The Forerunner: European Political Cooperation 3. CFSP in the Maastricht Treaty: A Major Turning Point? 3.1. Objectives and Principles 3.2. Instruments of the Union 3.3. Institutional Framework and Decision-Making 4. Evolution of CFSP since Maastricht 4.1. The Amsterdam Treaty 4.2. Nice Treaty 4.3. From Laeken to the Constitution for Europe and the Lisbon Treaty 5. Outlook Bibliography Andrea Ott Between Pillars and Policies: The Quest for Consistency in EU External Relations Law 1. Introduction 1.1. The Maastricht Treaty and External Relations 1.2. Consistency in EU External Relations 2. Maastricht to Nice: Consistency versus Supranationalism 2.1. The Antipode to Consistency: Article 47 TEU 2.2. Integrated but Separated Legal Orders: The Saga of Smart Sanctions 3. Post-Lisbon Consistency between Intergovernmentalism and Supranationalism: Unity in Diversity? 3.1. The Mutual-Affectation Clause of Article 40 TEU 3.2. Consistency in Practice: The Strategy for Security and Development in the Sahel 4. Conclusions Bibliography Jorrit J. Rijpma The Third Pillar of the Maastricht Treaty: The Coming Out of Justice and Home Affairs 1. Introduction 2. Formalizing Justice and Home Affairs Cooperation 3. Third Pillar: Article K's Institutional Provisions 4. Maastricht Put in Practice 5. Unity and Community 6. The Amsterdam Treaty 7. The Lisbon Treaty 8. Maastricht Shining Through 9. Outlook Bibliography Johannes Keiler & Andre Klip Substantive Criminal Law in the European Union 1. Historical Overview 2. Three Modalities of Influence on Substantive Criminal Law 2.1. The Interpretation of National Criminal Law 2.2. The Creation of General Principles of EU Law 2.3. The Criminalization of Prohibited Conduct 3. A Union View on Criminal law: Towards a European Criminal Policy 4. Concluding Remarks Bibliography Michele Panzavolta Is the Glass Half Empty or Half Full? Twenty Years of EU Cooperation in Criminal Matters 1. Introduction 2. The Starting Point 20 Years Ago: The Maastricht Treaty 3. From Maastricht to Lisbon Thorough Amsterdam and Nice: The Institutional Changes 3.1. Amsterdam and Nice 3.2. Lisbon 4. Horizontal Bilateral Cooperation: The Principle of Mutual Recognition 4.1. Mutual Recognition 4.2. Availability 4.3. Ne Bis In Idem 5. Multilateral and Vertical Cooperation 6. Conclusions Bibliography Stephan Rammeloo European Private International Law: Quo Vadis? A Methodological Journey from Maastricht to Amsterdam, Lisbon and further - Future Challenges 1. Introduction 2. The 'Europeanization' of PIL - The Institutional Framework 2.1. The Dawning Years (1958-1973) 2.2. The Institutional Deficit - The 'Maastricht' Call for Harmonization (1973-1992) 2.3. From 'Amsterdam' to 'Lisbon' (1992-2009) 2.4. The 'Post-Lisbon' Era - EU 'International Presence' and New PIL Parameters 3. European PIL - An Inventory 3.1. Accomplishments 3.2. Proposed PIL Regulations 4. European PIL - Today's and Tomorrow's Challenges 4.1. Leaving Traditional PIL Behind 4.2. PIL and Primary EU Law 4.3. PIL and Secondary EU Law - EU Directives 4.4. PIL and Secondary EU Law - EU Regulations 5. Conclusions Bibliography Floris De Witte Union Citizenship and Constrained Democracy 1. Introduction 2. Citizenship and the Integration Process 3. The Creation of a Constrained Citizenship 3.1. Obligations of Citizenship 3.2. Solidaristic Rights 3.3. Rights to Political Participation 4. For an Unconstrained Citizenship 5. Conclusion Bibliography Nicola Gundt The Social (Rights) Dimension of EU Citizenship 1. Introduction 2. Citizenship 2.1. Political Rights 2.2. Civil Rights 2.3. Economic and Social Rights 3. The Development of EU Citizenship through Case Law 3.1. Secondary Legislation Requirements 3.2. Equal Treatment 3.3. Social Citizenship: Retrospective and Perspectives 4. Why has a Floor of Social Rights not (yet) Developed? 4.1. The Nature of Social Rights 4.2. EU Legislative Competence in the Field of Social Rights 4.3. Fundamental Social Rights in the EU 4.4. The Structural Bias towards Economic Aims 4.5. The Influence of the EMU 5. Conclusion Bibliography Moritz Jesse 'Disrupting and Annoying' - EU Citizenship and EU Migration Law Destroying Old Habits of National Migration Policy Making 1. Introduction - Migration in Europe in the 21st Century 2. The Classic Dichotomy between 'National' and 'Foreigner' 3. Blurring the Boundary between Nationals and Foreigners 3.1. Citizens of the Union and their Family Members 'Migrating' within the EU 3.2. The EU Citizen and their Family Members Who Have Never Moved 3.3. Third-Country Nationals under EU Law 4. Conclusion: Blurring Boundaries between Citizens and Foreigners Bibliography Wouter Devroe & Pieter Van Cleynenbreugel Internal Market, Competition Law and Industrial Policy 1. Introduction 2. Embedding EU Economic Integration in the Wake of Maastricht: Three Hypothetical Benchmarks 3. Internal Market Adaptations 3.1. Rebalancing Market Regulation Competences 3.2. Monetary Union and Fundamental Rights 3.3. Towards Horizontal Direct Effect? 4. Predominantly Extra-constitutional Competition Law Transformations 4.1. Open Market Economy with Free Competition 4.2. Services of General Interest and Monetary Union 4.3. Modernisation, Decentralisation and Private Enforcemement 5. Industrial Policy (Still) in the Making 5.1. Enhancing EU Research and Technological Development 5.2. A New Industry Title 5.3. Attempts at Industrial Policy Revival 6. Conclusion Bibliography Vestert Borger & Stefaan Van den Bogaert Twenty Years After Maastricht: The Coming of Age of the EMU? 1. Introduction 2. The Architecture of the EMU 2.1. Background to the EMU 2.2. The Legal Set-up of the EMU in the Maastricht Treaty 2.3. The Weaknesses of the Original Legal Setup of the EMU 3. The Transformation of the EMU 3.1. Emergency Measures to Overcome the Crisis 3.2. Structural Solutions to Strengthen the EMU 4. The Specific Case of the ESM 4.1. The ESM and the Importance of Financial Stability 4.2. The ESM and the Transition from Market Discipline to Public Discipline 4.3. The ESM and Differentiation 5. The Future of the EMU Bibliography Mark Dawson Economic and Monetary Union: Maastricht's Great Failure 1. The House that Maastricht Built 2. Why Economic and Monetary Union? 3. The Maastricht Architecture: EMU's Three Pillars 4. The Functioning of EMU 5. From Maastricht to Lisbon: Before the Fall 6. The Crisis and its Aftermath 7. Conclusion Bibliography Saskia Klosse How Little Red Riding Hood coped with the EMU Wolf - The Quest for Adequate Modes to Manage the Social Consequences of European Integration 1. Introduction 2. Developments in the Economic Field: 1993-2013 2.1. Novelties Brought about by the Maastricht Treaty 2.2. Post-Maastricht Developments in the Economic Field 3. Developments in the Social Field: 1993-2013 3.1. Novelties Brought about by the Maastricht Treaty 3.2. Post-Maastricht Developments in the Social Field 3.2.1. Treaty Amendments 3.2.2. Parallel Development Focusing on Convergence through Policy Coordination 4. A Proper Balance? 5. Change of Perspective 6. Conclusion Bibliography Lisa Waddington Social Policy and the Maastricht Treaty: Much Ado about Nothing? 1. Introduction 2. Background 3. The Maastricht Social Provisions 3.1. Social Provisions in the Main Treaty 3.2. The Social Protocol 3.3. The Agreement on Social Policy 4. The Impact of the Agreement on Social Policy: Maastricht to Amsterdam 4.1. Legal Status of the Agreement on Social Policy and Acts Adopted under the Agreement 4.2. Failure to Develop an Ambitious Social Policy on the Basis of the Agreement 4.3. Development of a More Ambitious Social Policy on the Basis of the Main Treaty 5. The Maastricht Provisions on Social Policy in Hindsight 5.1. The Agreement as a Model for Future Titles on Social Policy 5.2. An Experiment in Differentiation that Paved the Way for More 6. Conclusion: Social Policy and the EU Today Bibliography Marjan Peeters Twenty Years of EU Environmental Legislation after Maastricht: The Increasing Role of the EU as a Global Green Standard-Setter 1. Introduction 2. The EU Environmental Competence in View of the Maastricht Treaty 3. Greening Europe through Legislative Action 3.1. Seeking Coherence in a Complex Domain 3.2. The Challenge of an Adequate Regulatory Approach 3.3. Compliance 4. Greening the World 5. Conclusion Bibliography Chris Backes & Mariolina Eliantonio Access to Courts for Environmental NGOs at the European and National Level: Improvements and Room for Improvement since Maastricht? 1. Introduction 2. Effectiveness and Effective Judicial Protection 3. The Aarhus Convention and its Transposition into EU Law 4. Access to Justice at the EU level: Are the Obstacles Insurmountable? 4.1. The Plaumann Doctrine and Environmental Claims 4.2. The Changes Brought by the Lisbon Treaty: Still no Access to Justice 4.3. The Rationale of the ECJ's Restrictive Approach: The 'Complete' System of Remedies 4.4. Interim Conclusion 5. Access to Justice before the Courts of the Member States 5.1. The Legislative Transposition of Directive 2003/35/EC in the Member States 5.2. CJEU Case Law on Article 9(2) of the Aarhus Convention and Directive 2003/35 5.3. CJEU Case Law on Article 9(3) of the Aarhus Convention: The Issue of Direct Effect 6. Conclusions Bibliography Gary Low No Bark and Less Bite? What Article 169 TFEU hasn't done for Consumer Law and Why Not 1. Introduction 2. From Rome to Maastricht: The Legal Basis for Consumer Legislation 3. Why Article 169 TFEU has no Bark and even less Bite 3.1. If it ain't Broke don't Fix it 3.2. Even if it is Broke don't Fix it 3.3. Consumer Policy as Internal Market Policy 3.4. Horizontal Integration of Consumer Policy 3.5. The Standards of Harmonisation 4. Conclusion Bibliography Sacha Garben The Case to Correct Some of Maastricht's Mistakes: A Critical Assessment of Article 165 TFEU on Education and Suggestions for Reform 1. Introduction 2. The Janus-Faced Nature of Article 165 TFEU: Serving the Two Masters of Authorization and Restraint 3. The Flawed Nature of Article 165 TFEU: No Restraint 3.1. Negative Integration 3.2. Positive Integration 3.3. Intermediary Conclusions 4. The Flawed Nature of Article 165 TFEU: No Real Authorization 5. The Core Cause of the Competence Problem 5.1. Articles 114 and 352 TFEU 5.2. Functionality as an Inalienable Feature of the EU Legal Order 5.3. Intermediary Conclusions 6. The Need to Reform Article 165 TFEU 7. Conclusion Bibliography Anne Pieter van der Mei & Ellen Vos The State of the European Health Union - The Maastricht Contribution to EU Health Policy 1. Introduction 2. EU Health Policy: A Brief History 2.1. Pre-Rome: The Failed European Health Community 2.2. From Rome to Maastricht to Lisbon 3. The Internal Market Pillar 3.1. A 'Healthy' Internal Market 3.2. The Internal Health Market 4. The Maastricht Pillar: Health Policy pur sang 5. Concluding Remarks Bibliography