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Class notes European Law
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EU law seminar week 1https://www.studeersnel.nl/nl/u/262836
Direct effect: rely on EU law to challenge national law/individual.
What do you need to have consistent interpretation: you need a national law that you can interpret
in light of EU law. You need room for interpretation.
direct effect: Hey land lord, you are breaching EU law, change your policy
indirect effect: hey land lord, you are breaching article 1 of dutch national law.
Consistent interpretation does not solve the problem.
(h)istoric (h)ouse
Conditions for EU law
Sufficiently clear
Unconditional
On exam: you need the wording of the treaty you’re invoking.
If there is no national law, you cannot challenge on consistent interpretation for the future.
State liability (revenues, compensation, damage): you can ask for compensation. It was created with
Francovich. Conditions for state liability:
› Francovich EU law creates rights for individuals, so there is a right to compensation if
those rights are infringed and there is damage (para. 31 – 37)
› Requirements (Brasserie):
1. Damage
2. EU law intended to confer rights on individuals
3. Manifest infringement of EU law (e.g. Dillenkofer (Deadline for transposing a
directive; if you are too late, you are always wrong, because a deadline is very clear),
but also Köbler): look at the clarity. The more clear, the easier it is to say that
someone is wrong. To show this, you have to give the text of the provision.
4. Causal connection between infringement and damages (Leth)
› NOTA BENE: Minimum level of protection (Leth)!
[Make a link with procedural autonomy (lectures 10-14)]
Question 1. Explain the theory of legal bases. Use one of the cases of this week's reading assignments
to substantiate your explanation.
A legal basis is a provision in the treaties setting out:
the parties (actors) ; the European Parliament and the Council
the procedure; ordinary legislative procedure
the purpose (objective) ; article 191
All 3 of them must be there to have legal basis. For example article 192(1) and refers to 191.
Conferral: article 5, also check the specific legal basis.
Find the policy area by using key words in the table of contents, e.g. public health is article 168 with
the legal basis 168(5).
Centre of gravity test/main purpose test: which of the two policy areas is most important in that
context; main purpose dictates the legal basis. It is also possible to combine them.
› Art. 5(1 and 2) TEU when is the Union competent to act?
• Articles 3-6 TFEU i.c.w. specific legal basis
› Legal bases have 3 effects:
• Vertical Dimension whether something falls within EU law
• Horizontal Dimension institutions with decision-making power
, • Substantive Dimension content EU measure
Tobacco advertising case: the legal basis of the directive was 114 TFEU which focuses on the internal
market, allowing for harmonization. However, the objective of the directive was to improve and
protect public health to which Germany claimed the EU with this directive did not aim at protecting
the free movement of goods or services, this directive is about human health and then the EU only
has the ability to support, coordinate or supplement the actions of the Member States and therefore
not harmonization.
Conferral
- Vertical dimension: European dimension or not? Distinction between explicit (set out in
article 3 to 6) competences and implicit (article 352(1) TFEU: residual: can only be applied
when there is no other legal basis) ones.
- Horizontal: which institution has decision-making power? Often multiple legal bases are
available.
Types of procedure: art 129
Ordinary legislative procedure:
Special legislative procedure:
Non-legislative procedure: legislative is not mentioned, e.g. art. 103.
Question 2. Would you say that the European Parliament and the Council have equal powers
within the context of the ordinary legislative procedure? Substantiate your opinion by referring to
specific Treaty provisions.
Treaty 294 TFEU, page 96. Yes, they do have equal power as both can propose amendments.
However, if during the first reading the Parliament does not take a decision within 3 months (TFEU
294(7a), the act will be adopted in the wording which corresponds to the position of the Council.
Art. 289; joint adoption + art. 294 says that both have to agree.
You can say whatever you want with law, as long as you support it with a legal provision.
Question 3 (10 points) After having overcome national resistance, Century Martial Arts, Inc is ready
to sell its ‘action jeans’ as from the 1st of March 2014. Meanwhile, the Union legislature has also
taken action as regards Chuck’s action attire, in the form of Directive 12/2014 on the
approximation of laws relating to the binding quality of blue jeans. Article 4 of the Directive states:
‘Member States shall ensure that blue jeans will bind the legs from the waist upwards.’ It was
published in the Official Journal on 14 February 2014, and has an exceptionally short transposition
period of 14 days. As Belgium has failed to meet such a short deadline, Chuck’s action jeans are
sold in Belgium. The streets of Brussels turn to mayhem as people are testing Chuck’s trousers,
trying their roundhouse kick skills everywhere. The Belgian Royal Prosecutor decides to take Mr.
Norris to court for non-compliance with Article 4 of the Jeans Directive. Assist Mr Norris in this
lawsuit, by explaining whether, and, if so, why the action of the Royal Prosecutor is lawful under
Union law.
The question is about direct effect:
- Sufficiently clear: Yes, it is sufficiently clear where the waist is.
- Unconditional: 1 condition that effects it: public policy choice. Someone has to make the
choice, usually the Member States, not the judiciary. Van Duyn. The more lenient the COJ is,
the easier it becomes to apply EU law and get its full effectiveness.
- Article 288: inverse vertical direct effect and therefore we cannot apply it.
› Compromise: a court applies an EU provision without it being forced to sit on the chair of the
legislator or administration
› Is this possible? Yes, if EU obligation is:
• A) ‘Sufficiently clear and unconditional’ (e.g. Van Gend en Loos, 18-26)
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