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Summary European Law exam material 23/24
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European LawWeek 1: Setting the scene
Literature
European Law CH5 Instruments and the hierarchy of norms
Art. 288 TFEU: types of EU instruments. There is no formal hierarchy.
1) Regulations: binding in their entirety and directly applicable in all member states: part of national
legal systems, without the need for transformation/adoption by national legal measures
2) Directives: do not have to be addressed to all member states, binding as to the end to be
achieved while leaving some choices to member states. Useful to harmonize the laws
3) Decisions: binding in its entirety, a decision that specifies those to whom it is addressed is binding
only on them (art. 288 TFEU)
Hierarchy of norms:
1) Treaties and charter: TEU + TFEU + Charter of Rights (art. 6 (1) TEU)
2) General principles of law (art. 263 (2) TFEU)
3) Legislative acts (art. 289 TFEU): legal acts adopted by a legislative procedure: regulations,
directives, decisions
CH8 The Nature and effect of EU law: direct
effect and beyond
Public enforcement, art. 258 TFEU: commission can sue member states for breach of EU law
Private enforcement: so individuals can rely on treaty articles before their national courts and challenge
national action in case of violation
Definition Direct Effect:
- Broad definition: Van Gend & Loos: the capacity of a provision of EU law to be invoked before a
national court (objective)
- Narrow definition: the capacity of a provision of EU law to confer rights on individuals that they
may enforce before national courts (subjective)
Treaty articles have direct effect, as well as regulations and decisions
Directives: vertical direct effect: can only be raised against the state or a state entity
Van Gend & Loos: art. 267 TFEU: condition for a treaty to have direct effect:
- Sufficiently clear
- Precise
- Unconditional to be invoked by individuals
Treaty articles have vertical and horizontal direct effect
General principles: at least have vertical direct effect
Charter of fundamental rights: vertical direct effect, certain charter provisions can have
horizontal effect
Regulations: direct effect
Decisions: may create horizontal direct effect between private parties (art. 288 TFEU)
Directives: have to be implemented by member states, however often implemented wrong by
member states. 3 reasons for directives to have direct Effect (van Duyn en Ratti)
1) Functional: will be more effectively enforced if individuals can rely on them (art. 258 TFEU)
2) Textual (art. 267 TFEU): referring questions concerning EU measures implies that such acts
can be invoked by individuals before national courts
, 3) Estoppel argument: if a member state implements a directive an individual can rely on them.
If they failed to implement the directive, they committed a wrong and can’t deny the binding
effect of the direct after the date of implementation.
So in principle direct effect sufficiently clear and precise provisions: discretion does
not prevent an individual to directly rely on a directive.
Vertical/horizontal effect only vertical direct effect.
How to enhance the effect of directives: lessening impact of the lack of horizontal direct effect:
a) Broad concept of the state (organs are also part of the state): a ‘state’ has the obligation to apply
the provisions of the directives administrative direct effect
b) ‘indirect effect’: principle of harmonious interpretation: national law has to be interpreted in the
light of directives (art. 4(3) TEU).
Scope:
1) Obligation of harmonious interpretation applies even when the national law pre-dates the
directive and has no specific connection with it
2) National legal system as a whole
3) Interpretation cannot be contra legem, unbearable or that violates a fundamental principle
of domestic law
4) National courts are obliged to change established case law if it is based on an interpretation
of domestic law that is incompatible with the directive
CH9: the application of EU law: remedies in
national courts
Francovich: principle of state liability to pay compensation for breach of EU law. Conditions:
- Conferral upon an individual of specific rights
- The content of which must be identifiable under the directive
- A casual link between the state’s breach and damage to the individual
Clarification (Brasserie du Pecheur + Factortame III) : state liability. Art. 340 TFEU : state
is liable whichever of its organs is responsible for the breach (art. 258 TFEU)
Brasserie du Pecheur: art. 340 TFEU : conditions state liability :
1) Rule of EU law infringed must be intended to confer rights on them
2) Breach of that rule must be sufficiently serious
3) Mus be a direct casual link between that breach and loss/damage
National conditions can infringe the effectiveness principle for liability and reparation
CH10: The relationship between EU law and
national Law: supremacy
Van Gend en Loos: new legal order in which states had limited their sovereign rights.
Supremacy: Costa v. ENEL
Simmenthal: applies irrespective of whether the national law predated or post-dated the EU Law
Supremacy can be applied by all national courts
Simmenthal principle requires the national court to refuse to apply the national law that conflicts with EU
law.
The national court is not always obliged to set aside final judicial decisions that infringes EU law (res
Judicata)
Notes
EU institutions (art. 13 TEU):
- Commission: independent, draws up proposals for new European legislation
- Council
- European council
- Parliament: lawmaking body
- CJEU
- ECB
, - CA
Sources of EU law:
- Primary: EU Treaties (TEU + TFEU) including the charter
- General principles of EU law:
o Conferral: can only act in matters conferred through the treaties
o Subsidiarity: taken at the most appropriate level of government
o Proportionality: EU actions must be proportionate to the objectives they seek to achieve:
a) Adequacy
b) Necessity (least intrusive)
c) Proportionality sensu stricto: in the strict sense
- Secondary hard law: art. 288 TFEU: regulations, directives, decisions
- Secondary soft law; recommendations and opinions
Competence: principle of conferral (attributie):
- Exclusive (art. 3 TFEU)
- Shared (art. 4 TFEU)
- Supporting (art. 6 TFEU)
Week 2: Services & Establishment
Literature
European Law CH18 The Single Market
How to establish single market:
- EU law can prohibit national rules that hinder cross-border trade
- Positive integration: harmonization
Art. 26 TFEU: internal market is area without internal frontiers in which there could be free movement of
goods etc.
Art. 114 TFEU: empowers enactment of measures
Mutual recognition: Cassis de Dijon principle
1) Member states must provide information on national rules that might impede free movement
2) Obligation to provide information on obstacles to free movement and serious trade disruption
3) Mutual recognition: normative dimension: state control, harmonization at EU level
4) Mutual recognition: practical dimension: does not always operate effective lacks visibility
5) Control over member state derogation
6) Harmonization and standardization: art. 36 TFEU/Cassis reduces barriers
CH23 Freedom of establishment and to provide
services
Principle of equal treatment on grounds of nationality
Difference establishment vs. services: ECJ Gebhard (par. 25): in establishment you participate on a stable
and continuous basis in the economic life of a Member states. There is an established professional base
within host member state.
Art. 49 TFEU: prohibition on restrictions on freedom of establishment. Person exercising the right of
establishment has to be treated the same as a national. direct effect
Gebhard: broad interpretation of art. 49 TFEU: any national rule which is liable to hinder or make
less attractive the exercise of the fundamental freedoms, may violate the treaty unless it is justified by an
imperative requirement and applied in a proportionate and non-discriminatory manner.
Reverse discrimination:
- Member State cannot restrict its own nationals to leave and set up establishment elsewhere
- Nationals may be disadvantaged if the qualifications they have obtained in another member state
are not recognized by their own state.
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