Federalism and the European Union – Exam questions – CHI IENG LEI -

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1.In what ways – looking at the operation of its institutions and its legal order

– is the European Union more like a federal state with a constitutional legal
order and in what ways more like an international organisation with an
intergovernmental legal order?

When we talk about European Union like a federal state, European Union is composed of 28
member states, which every member states maintains their own power with independence
and autonomy, on the other words, every country is sovereign country with their own
system, their own law, their own constitution and the European Union has no right to
interfere, except certain circumstances; on the other hand, beside every member states
reserves their own power within their country, they also give European Union a certain
power to make decision about economic affairs, political affairs, etc. With this pattern, we
can also look at the operation of European Union, which is made of seven principal decision-
making bodies—the European Council, the Council of the European Union, the European
Parliament, the European Commission, the Court of Justice of the European Union,
the European Central Bank, and the European Court of Auditors. The most important thing
is, there is no subsidiary relation between the institution of every member states and the
institution of European Union. Moreover, the power that European Union have, is
originate in participation of every member states. So, with this function and this balance
between the European Union and 28 member states, we will said that, European Union
more like a federal state.

But European Union more like an international organization with an intergovernmental legal
order, combine what I learned from the class "direito internacional publico" the idea of
intergovernmentalism, is that, every member states get together and establish European
Union as an cooperation, in this context, every one of them, beside gives a certain power to
the European Union, their also emphasize their own sovereignty, which means, when
European Union is making a decision, European Union has to respect every members states'
s opinions, instead of majority decision, it should be unanimous decision. Because, when we
talk about European Union is like an international organization, and this organization is
made by aspiration and interest of every members states, so, the decision that European
Union make, has to based on the interest of every members states.

2. Do you think the European Union has adequate democratic legitimacy? If

your answer is yes, why? If your answer is no, do you consider that to be an
important problem and how do you think that it could be solved in the future?

(Note: As often with such open-ended questions as the first two here, there is no

single “correct” answer as concerns the possible direction of the development –

different answers may all be considered good, as long as they are well
reasoned.)

Just my opinions, I would say no, I don't think the European Union has adequate democratic
legitimacy. As I'm not the citizen of the member state, and of course I'm not of citizen of the
European Union, I think the angle that I look at the things and the problem, maybe is very
different than the others. So, even I know that, European Union has already set a
complicated system to limit the possibility of unfairness that the decision that European
Union make could cause, to try to make a decision that is for everyone best interest, avoid
the dispute and the litigation, but things would never been perfect. On the point of political,
I have to brought up that recently United Kingdom decided to leave the European Union, so
United Kingdom, as one of the biggest and strongest member state of European Union, the
leave of United Kingdom, it is a big loss of European Union, so the decision of stay or to
leave the European Union, United Kingdom is already made, there is nothing European
Union can do, but maybe European Union should question about itself, the reason that the
United Kingdom would leave. The according the news of BBC, the British think that, on the
internacional commerce, there are so many things and rules that the United Kingdom has to
obey, so, instead of getting benefit, they think there are more harms that United Kingdom
continue to stay in European Union. So this is only one of the main reason, there are more
reason. But, I think, the consideration of European Union has, is absolutely not enough, it
makes European Union can't have a adequate policy, and it leads to the leave of one of the
member states. I think, the next step that European Union take, has to be careful, there
maybe are more countries want to leave, and European Union has to adjust their policy to
avoid this possibility or to overcome this problem.

3. Imagine the following hypothetical scenario:

In the last few years, concern has grown in the EU over the tensions between fundamental

human rights and fundamental economic freedoms (above all the free movement of

goods). The issue became particularly heated when, following unpopular measures adopted by
the Member States to combat the economic crisis, non-governmental organizations

organized coordinated protests in several Member States which involved blocking the main

transit highways and rail stations, severely disrupting cross-border road and rail traffic for a

number of days.

In response, the European Commission is drafting a proposal for an EU regulation that would

introduce a common EU framework for supervising and limiting the exercise of the right of

assembly when it threatens to obstruct the free movement of goods, stating in the recital that

“the freedom of association and the right to protest are important fundamental

rights but should not hinder the exercise of the fundamental freedoms”. The

regulation would also institute a special warning mechanism that would require Member

States to warn each other at times of increased social unrest of the possibility that specific

transit routes might be disturbed.

Imagine that you are a talented young expert on EU law advising the
government of a Member State which is not in favour of adopting such a
measure. The government comes to you for advice, wishing to know how they
could try to oppose this regulation at various stages of its drafting and/or
implementation in both procedural and substantive terms.

Your task is to provide a brief memorandum outlining the government’s

options and also identifying the arguments in support of the measure that it
would have to overcome.
Memorandum of government: We think that the regulation of European Union make, is
incompatible with the standard of fundamental human rights within our country. Of course
we have to consider the balance between the fundamental human rights and the damage
caused by the right of protest, but we also have to respect the fundamental human right of
expression, the freedom of everyone should have. In our point of view, we think that,
without prejudice the interests of others, the fundamental human rights should be above all
the other rights, and should not be infringed, consider the importance of fundamental
human rights, and it is the base of the peace, fairness and justice. And therefor, we can not
and shall not follow the regulation of European Union, because the special warning
mechanism violate fundamental human rights, and limite the basic right of freedom of
association and the right to protest, is obviously not compatible with our cosntitution, it is
inconstitucioanl. We consider the act of this non-governmental organizations, their scale and
their influence is not enough to damage the exercise of the movements of goods, at least
not enough for us to take steps to restrict their fundamental human rights, if we do, that
would be an act unconstitutional. But we can consider to take a strict precautions to prevent
them from being excessive. On the other hand, we will adopt a adequate policy to solve the
origin of the problem of the protest that these organizations made - economic crisis. So, in
this case, we are here to declare that this regulation is unconstitutional and make this
statement, that we accept the decision of Court of Justice of the European Union made as a
compromise, but also we accept all the citizens that can appeal a judicial case in Supreme
Court, as a form to protect their fundamental human rights.