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Summary of European Law: Justice and Home Affairs - literature, judgments + lectures
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EUROPEAN LAW: JUSTICE AND HOME AFFAIRSEuropean Union and EU Law
History of the EU
- Developed after WOII desire for peace and security. Connect France and
Germany again (preclude war in the future) first only western Europe (because of
east/west).
- European Coal and Steel Community (1951) The Netherlands, Belgium, Germany,
France, Luxembourg and Italy.
- European Economic Community and European Atomic Energy Community
(EURATOM) (1957).
- The European Union:
o Treaty of Maastricht (1992/1993) three pillars of the EU.
o Treaty of Amsterdam (1997/1999) move certain industries from pillar 3 to 1.
o Treaty of Nice (2000/2003) enhanced cooperation in pillar 2 (area of
common foreign and security policy).
o Treaty of Lisbon (2007/2009 – present) legal framework of today, formally
we do not have any pillars anymore, still largely intergovernmental.
Currently we have 2 main sources of EU primary law: TEU and TFEU.
TEU (overarching, all areas) TFEU
Title I: Common Provisions Part I: Principles
Title II: Democratic Principles Part II: Citizenship
Title III: Institutions Part III: Union Policies
- Justice and Home Affairs: Title V: ‘Area of Freedom,
Security and Justice’ (art. 67-89 TFEU).
Title IV: Enhanced Cooperation Part IV: Overseas Associations
Title V: External Action and the Part V: External Action
Common Foreign and Security
Policy
Title VI: Final provisions Part VI: Institutions & Finances
Part VII: General & Final Provisions
Title I: Human Dignity Art. 4: prohibition of torture
Title II: Freedoms Art. 7: respect for private and family life
Art. 8: right to data protection
Art. 18: right to asylum
Title III: Equality Art. 21: prohibition of discrimination
Title IV: Solidarity
Title V: Citizens’ rights
Title VI: Justice Art. 47: right to an effective remedy and to a fair trial.
The Charter of Fundamental Rights of the European Union (CFR) has the same legal value
as the EU Founding Treaties art. 6(1) TEU.
Institutions of European Union art. 13(1) TEU. The main ones important here are:
European Parliament art. 14 TEU.
- Represents the peoples of the MS (the citizens).
- Political fractions/groups (organised by political affiliation, not by nationality).
- Legislative, investigate, appointment/elective, budgetary powers.
- More detailed rules on structure and powers art. 223-234 TFEU.
European Council art. 15 TEU.
1
, - Heads of State or Government of all the MS + President of the Commission.
- President of the European Council.
- General political direction and priorities of the EU.
- Eurotop
- More detailed rules on structure and powers art. 235-236 TFEU.
Council of the EU (the Council) art. 16 TEU.
- Represents the MS’ (intergovernmental) interests.
- Consists of the ministers from the MS.
- Discusses different subject matters, requiring different ministers, and different
configurations of the Council formation depends on the agenda matter.
- Legislative, executive and budgetary powers.
- More detailed rules on structure and powers art. 237-243 TFEU.
European Commission art. 17 TEU.
- Consists of 1 Commissioner per MS independent and different portfolios.
- Represents the EU (supranational) interests.
- ‘A jack of all trades’ – art. 17 TEU legislative and executive body.
- Ensures the application of the Treaties and measures adopted by the institutions
art. 258 TFEU: infringement procedure.
- Supported by EU agencies - FRONTEX, EUROPO, Eurojust.. (art. 85, 86 + 88
TFEU).
- More detailed rules on structure and powers art. 244-250 TFEU.
Court of Justice on the European Union art. 19 TEU.
- Ensures the correct application and interpretation of the EU Treaties and legislation.
- One judge per MS.
- Jurisdiction art. 258-260 TFEU (enforcement actions); art. 273 TFEU (rule on
annulment); art. 276 TFEU (give preliminary rulings).
Formal legal sources in EU law
If lower law is contrary to higher law, it
can be annulled by the CJEU.
The pyramid is legally binding.
The green circle is not legally binding.
Secondary law: EU legal acts
There are different types, which can
be found in art. 288 TFEU.
Regulations
- Acts of general application; binding in their entirety and directly applicable in all MS.
Directives
- Binding (on the MS) as to the result to be achieved; require implementation by the
MS.
Decisions
- Binding in their entirety; usually concrete and specific.
Soft law measures (recommendations and opinions)
- Formally non-binding (but potentially influential in practice).
Atypical legal acts (not listed in art. 288 TFEU): e.g. interinstitutional agreements, notices,
guidelines, resolutions, communications, etc.) precise legal nature and effects to be
assessed on a case-by-case basis.
Secondary law measures Adopted by the EU institutions in the application of the Founding
Treaties. 2 categories of legal acts after Lisbon Treaty (based on nature adoption procedure).
- Legislative acts (regulations, directives, decisions) – art. 289 TFEU.
o Adopted according to the ordinary legislative procedure or a special legislative
procedure (consultation or consent).
2
, - Non-legislative acts (regulations, directives, decisions)
o Delegated acts (art. 290 TFEU): adopted by the Commission on the basis of a
delegation via a legislative act.
o Implementing (exclusive) acts (art. 291 TFEU): adopted by the Commission
(rule) subject to ‘Comitology’ and by the Council (exception).
o (non-legislative) legal acts can be adopted also by other EU institutions and
bodies exercising the powers conferred on them by the Treaties/EU
secondary legislation.
Making EU legislation
Ordinary legislative procedure (art. 289 & 294 TFEU).
1. Legislation is proposed by the Commission;
2. First reading (readings by Council of Ministers and the
European Parliament);
3. Second reading;
4. Conciliation stage;
5. Third reading.
- 2 more steps art. 297 TFEU signed and published.
Special legislative procedure (art. 289(2) TFEU).
- Art. 21(3) TFEU: ‘acting unanimously after consulting the
European Parliament’.
- The Commission also brings the proposal.
- 3 variations:
o The Council (with consultation of the European
Parliament) e.g. art. 77(3)TFEU
o The Council (with consent of the European Parliament) e.g. art. 86(1)TFEU
They just have to say yes/no, but cannot interfere or influence the text.
o The European Parliament (generally requires consent from the Council) e.g.
art. 226 TFEU.
Art. 77(2) TFEU council = the council of ministers! – in Part III Title V!
EU law foundations TEU (art. 1-6) + TFEU (art. 1-17).
- Values (art. 2 TEU) – liberty, democracy (art. 9-12 TEU), rule of law, respect for
fundamental rights (art. 6 TEU, CFR) + art. 7-25 TFEU.
- Objectives (art. 3 TEU).
- Competences (art. 4-5 TEU and 2-6 TFEU).
EU competences
- Exclusive competences (art. 3 TFEU) = only EU may act.
- Shared competences (art. 4 TFEU) = both EU and MS may act.
o Pre-emption of EU – art. 2 TFEU. (if EU has acted, MS cannot act anymore).
o Area of Freedom, Security and Justice art. 4(2)(J) TFEU!
- Supporting, coordinating and supplementary competences (art. 6 TFEU) = both EU
and MS may act (EU role is marginal – no harmonization).
o MS can always act and EU can only support that action with rather light
measures.
EU law – principles of governing EU powers/competences
- Principle of conferral (art. 5(2) TEU) = EU shall only act within the limits of the
competences granted by its MS.
o Legal basis: concrete treaty provisions enabling the EU to act in various fields.
- Principle of subsidiarity (art. 5(3) TEU – only non-exclusive EU competences) = EU
shall only act if and so far as the objectives of the proposed actions cannot be
sufficiently achieved by the MS.
3
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