4 ms·

Can someone explain the legal structure under which the EU parliament can (according to this post) dictate laws for service providers inside all of the sovereig

Can someone explain the legal structure under which the EU parliament can (according to this post) dictate laws for service providers inside all of the sovereign nations inside the EU? I would've thought that this was outside the scope of the EU -- is there some kind of "commerce clause" type loophole for this, or was power constitutionally transferred to the EU parliament at some point? If a member nation refused to obey an EU law (or whatever it is), what sort of punishment or sanction could be applied to them?

ginko 5y ago
This proposed anti-encryption legislation by the European Commission comes from an initiative of the interior ministers of the European Council which is composed of the heads of the individual governments of the member states. It's the member nation's governments that want this, not the European Parliament. The EP has yet to vote on this.
drumhead 5y ago
I dont think the parliament by itself can set laws, it would need to be agreed to by the Councilof Ministers as well. So unless they're happy with it it wont happen. As for sanctions for not applying the law, fines, holding back of funds. If they dont apply the law or dont follow it they can be taken to the European court of justice. I dont think we've ever had a scenario where EU law has not been applied unless there was an opt out. We may see that tested soon, by Poland and Hungary though.
telmo 5y ago
> is there some kind of "commerce clause" type loophole for this The EU is not just a commercial organization. It is an actual political union. The English-speaking press tends to hate mentioning this, but it is the truth. The treaty of Lisbon says that the goal of the European Union is to create an "ever closer" union between the member states. Every member state signed up for this. > I would've thought that this was outside the scope of the EU Few things are outside the scope of the EU. > was power constitutionally transferred to the EU parliament at some point? It is a very complex topic, but the short answer is "yes". Member states agree to translate EU parliament decisions into national law at their own time. They have the ability to veto any initiative through other channels. > If a member nation refused to obey an EU law (or whatever it is), what sort of punishment or sanction could be applied to them? This things are usually dealt with through diplomacy. There is a lot of tolerance. Often nothing happens but many types of sanctions (usually economical) are possible.
- sobellian 5y ago
  The US is also (obviously) a political union, but the Feds cannot legislate on every issue, some issues are left to the states. One exception is on matters where interstate commerce is affected, where the Feds have broad power. That's the commerce clause exception GP was referring to.
  - amalcon 5y ago
    If you want further detail, look up Wickard v. Filburn. An activity taking place within one individual's property in a single state can be regulated under the interstate commerce clause, so long as a case is made that it affects interstate commerce. Sounds wild, and it is, but the dependency graph is such that we can't change that now without upsetting the whole cart.
    - abecedarius 5y ago
      Even wilder: the other day I ran across https://en.wikipedia.org/wiki/Gonzales_v._Raich https://en.wikipedia.org/wiki/Gonzales_v._Raich which apparently held that growing marijuana, for personal use under state law, is also interstate commerce. Is there anything at all that isn't interstate commerce?
      - amalcon 5y ago
        I mean, that's basically Wickard v. Filburn 60 years later and with a different plant. It actually seems downright reasonable if you accept Wickard as settled law, which it is.
Barrin92 5y ago
the basic legal structure of the EU works like this. The EU does not create laws, it creates what's called directives. National governments are bound to create domestic laws implementing said directives. the EU has the mandate to overrule nation states on what to do but not how to do it, and in reality the system leaves national governments quite a lot of leeway, intentionally. (The EU also can create 'regulations' which are directly binding, comparable to an act of parliament) And the EU also has mechanisms to impose penalties for countries that fail to comply, but in practice this is rarely done for political reasons.
- Fraaaank 5y ago
  While it is true that directives require implementation, it is not true that the EU cannot directly create legislation. EU regulations do have a direct effect, meaning that no implementation law is necessary. GDPR is an example of this (General Data Protection Regulation).
bhupy 5y ago
This is a pretty good video that explains the legal/political structure of the EU: https://www.youtube.com/watch?v=_lj127TKu4Q https://www.youtube.com/watch?v=_lj127TKu4Q

ginko 5y ago

This proposed anti-encryption legislation by the European Commission comes from an initiative of the interior ministers of the European Council which is composed of the heads of the individual governments of the member states. It's the member nation's governments that want this, not the European Parliament. The EP has yet to vote on this.

drumhead 5y ago

I dont think the parliament by itself can set laws, it would need to be agreed to by the Councilof Ministers as well. So unless they're happy with it it wont happen. As for sanctions for not applying the law, fines, holding back of funds. If they dont apply the law or dont follow it they can be taken to the European court of justice. I dont think we've ever had a scenario where EU law has not been applied unless there was an opt out. We may see that tested soon, by Poland and Hungary though.

telmo 5y ago

> is there some kind of "commerce clause" type loophole for this The EU is not just a commercial organization. It is an actual political union. The English-speaking press tends to hate mentioning this, but it is the truth. The treaty of Lisbon says that the goal of the European Union is to create an "ever closer" union between the member states. Every member state signed up for this. > I would've thought that this was outside the scope of the EU Few things are outside the scope of the EU. > was power constitutionally transferred to the EU parliament at some point? It is a very complex topic, but the short answer is "yes". Member states agree to translate EU parliament decisions into national law at their own time. They have the ability to veto any initiative through other channels. > If a member nation refused to obey an EU law (or whatever it is), what sort of punishment or sanction could be applied to them? This things are usually dealt with through diplomacy. There is a lot of tolerance. Often nothing happens but many types of sanctions (usually economical) are possible.

sobellian 5y ago
The US is also (obviously) a political union, but the Feds cannot legislate on every issue, some issues are left to the states. One exception is on matters where interstate commerce is affected, where the Feds have broad power. That's the commerce clause exception GP was referring to.
- amalcon 5y ago
  If you want further detail, look up Wickard v. Filburn. An activity taking place within one individual's property in a single state can be regulated under the interstate commerce clause, so long as a case is made that it affects interstate commerce. Sounds wild, and it is, but the dependency graph is such that we can't change that now without upsetting the whole cart.
  - abecedarius 5y ago
    Even wilder: the other day I ran across https://en.wikipedia.org/wiki/Gonzales_v._Raich https://en.wikipedia.org/wiki/Gonzales_v._Raich which apparently held that growing marijuana, for personal use under state law, is also interstate commerce. Is there anything at all that isn't interstate commerce?
    - amalcon 5y ago
      I mean, that's basically Wickard v. Filburn 60 years later and with a different plant. It actually seems downright reasonable if you accept Wickard as settled law, which it is.

Barrin92 5y ago

the basic legal structure of the EU works like this. The EU does not create laws, it creates what's called directives. National governments are bound to create domestic laws implementing said directives. the EU has the mandate to overrule nation states on what to do but not how to do it, and in reality the system leaves national governments quite a lot of leeway, intentionally. (The EU also can create 'regulations' which are directly binding, comparable to an act of parliament) And the EU also has mechanisms to impose penalties for countries that fail to comply, but in practice this is rarely done for political reasons.

Fraaaank 5y ago
While it is true that directives require implementation, it is not true that the EU cannot directly create legislation. EU regulations do have a direct effect, meaning that no implementation law is necessary. GDPR is an example of this (General Data Protection Regulation).

bhupy 5y ago

This is a pretty good video that explains the legal/political structure of the EU: https://www.youtube.com/watch?v=_lj127TKu4Q https://www.youtube.com/watch?v=_lj127TKu4Q