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All notes from all lectures, literature and case law of European Law.
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Weekly Recap on Law of the European Union
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Week 1: setting the sceneArt. 2 TEU states the foundation of the EU and art. 3 TEU states the objective of the EU.
EU institutions
The institutions of the EU are summed up in art. 13 TEU. The commission has the exclusive power to
take legislative initiatives. Those initiatives need to be signed by the Council and the EP.
Normally, the legislative process is governed by art. 294 TFEU (ordinary legislative procedure):
- The European Council (consisting of the heads of States) gives directions about the politics of
the EU.
- The European Commission makes a draft legislative act;
- The Council and the EP choose whether to amend or adopt the act;
- The Commission applies the adopted law.
The Council of Europe is not an EU institution (it is not in art. 13 TEU).
Institutional balance: the different interests of the institutions balance each other out.
- The Council has a national interest;
- The Commission has a European interest;
- The EP has a citizen interest.
Sources of EU law
- Primary sources: EU treaties (TEU, TFEU) and the Charter, see art. 6(1) TEU
- General principles of EU law (such as proportionality, legal certainty etc.). They can be used to
interpret treaty articles and to invalidate legislative acts;
- Secondary sources of hard law (art. 288 TFEU): see below;
- Secondary soft law: recommendations and opinions.
Art. 288 TFEU states the five instruments of EU institutions. There is no hierarchy between these pro -
visions.
- Regulations: verordeningen. Regulations are directly applicable (which is different from direct
effect) which means that the act becomes law in each Member State at the moment it comes
into effect. Regulations have direct effect (see below).
- Directives: richtlijnen. Directives needs transposition which means that they need to be
transposed into national law. This may take some time;
- Decisions: decisions are binding on the addressee, which is mostly a company, so decisions
play a role in competition law.
Principle of conferral (attributiebeginsel)
The EU only has power over the areas which are granted to it by Member States (art. 5(1,2) TEU).
States’ sovereignty must be explicitly given to the EU. This means that the EU needs a legal basis for
every act it wants to enact. Legal bases can be:
- Exclusive competence (art. 3 TFEU): there is little space for deviation for individual States;
- Shared competence (art. 4 TFEU);
- Supporting competence (art. 6 TFEU).
When it is established that the EU can act on a certain area, it needs to take into account subsidiarity
and proportionality:
- Subsidiarity: the EU only acts when the goal cannot be achieved by the Member States. Only
national parliaments can confer power to the EU (art. 5(3)). If a majority of national parlia -
, ments says that a certain legal act does not meet the principle of subsidiarity, the act cannot
be adopted;
- Proportionality (art. 5(4)). Legal acts must be suitable and necessary.
Judicial protection
The Court of Justice of the EU consists of two parts: Court of Justice and the General Court. The Court
of Justice is the higher one.
The Court of Justice has different procedures:
- Preliminary ruling (art. 267 TFEU): national courts can ask the CJEU questions. If it is the
highest national court that is unsure about the interpretation of EU law, it is compulsory to
ask the question. There are two exceptions to this rule:
o Acte claires: if the issue is already clear and obvious;
o Acte éclairés: if the CJEU has already decided on the issue.
- Infringement procedure (art. 258-260 TFEU);
- Action for annulment (art. 263, 265 TFEU): only the CJEU can annul an EU legislative act.
Internal market
Art. 3(3) TEU: ‘The Union shall establish an internal market’.
Art. 26 TFEU: states the definition of the internal market. This is not about the fact that there are no
borders; this is provided by the Schengen Treaty.
Member States are bound by the Four Freedoms (e.g. art. 34,56,45,49,63 TFEU). For private actors
(undertakings etc.), the EU competition rules apply (e.g. art. 101, 102 TFEU).
The internal market is realized by (see also week 2):
- Negative integration: the removal of existing impediments to free movement. This strikes
down national rules by applying treaty rules on free movement. Examples are the prohibition
of discrimination and prohibition of restrictions on free movement;
- Positive integration: the approximation of differences between existing national laws, remov-
ing future obstacles of trade. This is done by harmonization;
- Mutual recognition: Cassis de Dijon.
Supremacy and direct effect
Supremacy
In the Van Gend & Loos judgment, the CJEU stated that EU law has supremacy over national law. That
means that when there is a conflict between EU and national law, EU law has more power . The na-
tional judge has to conform the national law with EU law.
In Costa/ENEL the CJEU stated that Member States must bring their national laws in accordance with
EU law.
Direct effect
Provisions of binding EU law that are sufficiently clear, precise and unconditional can be invoked and
relied on by individuals before national courts. If an article has direct effect, an individual can invoke
that European provision in national court.
In most cases, individuals will invoke an article against the State (vertical direct effect); however, hori -
zontal direct effect is also possible.
Direct effect makes sure that not only the Commission can enforce EU law in Member States (public
enforcement), but also individuals can do that (private enforcement).
Spillover
, Spillover is the process where integration of one policy area means further integration in another
area.
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