EU Constitutional Law
Table of Contents
LECTURE 1: INTRODUCTION TO EU CONSTITUTIONAL LAW............................................................................1
LECTURE 2: THE EVOLUTION OF THE EU AND EU LAW....................................................................................3
LECTURE 3: THE INSTITUTIONS OF THE EUROPEAN UNION...........................................................................10
LECTURE 4: EU COMPETENCES AND THE CONDITIONS FOR EU LAW-MAKING...............................................33
LECTURE 5: EU LEGISLATIVE PROCEDURES AND LEGAL ACTS........................................................................41
LECTURE 7: THE NATURE AND EFFECTS OF EU LAW: AUTONOMY AND PRIMACY..........................................45
LECTURE 8: THE DIRECT EFFECT OF EU LAW................................................................................................. 49
LECTURE 9: THE INDIRECT EFFECT OF EU LAW = (THE DUTY OF CONSISTENT INTERPRETATION)....................56
LECTURE 10: THE PRINCIPLE OF STATE LIABILITY.......................................................................................... 57
LECTURE 11 AND 12: ARTICLE 263 TFEU: THE ACTION FOR ANNULMENT......................................................61
LECTURES 13 AND 14: ARTICLE 267 TFEU: THE PRELIMINARY REFERENCE PROCEDURE.................................69
LECTURES 15 AND 16: THE PROTECTION OF FUNDAMENTAL RIGHTS IN THE EU............................................75
LECTURE 17: INTRODUCTION TO THE EU INTERNAL MARKET.......................................................................91
LECTURE 18: BREXIT, AN EU LAW PERSPECTIVE............................................................................................ 95
LECTURE 19: THE EU-UK RELATIONS, THE WITHDRAWAL AGREEMENT.......................................................101
LECTURE 20: THE EU-UK RELATIONS, THE EU-UK TRADE AND COOPERATION AGREEMENT.........................111
Lecture 1: Introduction to EU Constitutional Law
What is the EU? What does it do?
The financial crisis (2008-2010)
In 2007, the US experienced a serious financial crisis, which soon had an impact on the EU as well.
The focus of the crisis was on the role of banks. As many Member States have the same currency
(the Euro), and there is also free movement of capital (money/investments) in the EU, there was
pressure on the EU to deal with the effects of the financial crisis. The EU has significantly increased
the supervision of banks. It has also created a stability mechanism to help out Member States that
are experiencing financial problems as a result of the crisis. These measures have had a direct impact
on the economies of the Member States and on the financial position of individuals.
The refugee/migrant crisis (2015-2017)
With wars in Syria, Afghanistan and on the African continent, many refugees have tried and are
trying to get into the EU. This has put a lot of pressure on its Member States – in particular on those
Member States that form the external borders of the EU. As there is free movement of persons in
the EU, there is pressure on the EU Member States to co-operate in deciding how to deal with the
refugee crisis. The EU has made an agreement with Turkey. One of the most important internal
measures has been to agree on the re-location of refugees from Italy and Greece to the other
Member States. Some Member States are unwilling to take up refugees and the EU measures are a
,good test to see how loyal the Member States are to each other and to the EU (see the opposition of
some Member States: Case C-643/15, Slovakia v Council)
The rule of law crisis (2017-to date)
The EU is often perceived as being about the internal market only – about trade and finance. But one
of the most important aims of the EU is to promote “the rule of law” in the EU (see Articles 2 and 7
TEU). You will study the rule of law in UK Constitutional Law, and you will find that the concept has
been given different meanings and interpretations. However, as a minimum, the concept means that
the institutions of the State (and the EU) are bound to comply with fundamental rules of law, such as
the separation of powers and fundamental human rights. In Poland, the current government has
changed the law in such a way that the government is in a position to appoint the judges of the
Constitutional Court. Similarly, a disciplinary tribunal has been created to supervise the activities of
judges in a way which does not guarantee the independence of judges. In Hungary, the Central
European University was forced to leave the country and re-locate to Austria. Furthermore, the
government has threated to reduce the fundamental rights protection of certain minority groups.
The EU (in particular, the European Commission) has consistently tried to force these Member States
to comply with the rule of law (see, for example, C-182/18, Commission v Poland; C-619/18,
Commission v Poland and C-791-19, Commission v Poland).
The corona pandemic (2020-to date)
The corona pandemic has been one of the main challenges for the EU in the last two years. It is clear
that the virus does not respect borders between States. The concept of free movement (on which
the EU is founded) could make a real contribution to the spreading of the virus from one country to
another. As a result, free movement between Member States has had to be restricted. The EU has
adopted common rules on the requirements to travel between Member States. However, because
the EU’s powers in the field of public health are limited (see Article 168 TFEU), it has been difficult
for the EU to become one of the key actors in the pandemic. Moreover, the EU has played an active
role in co-ordinating the Member States’ efforts to buy vaccines in such a way that there would not
be (too much) competition between Member States.
Many citizens will think about these “big issues” when they form their opinion about the EU. This is
understandable. The problem with the EU is that much of what it does takes place without most
people realising that it is done by the EU. The way the EU – and EU law – works is that it is integrated
in and takes effect through national law. If Brexit has shown us one thing, it is the extent to which EU
law is integrated in the UK. This has become particularly clear through the concept of “retained EU
law”, which preserves much of the “legacy” of EU law after Brexit.
Think about some of the issues that are regulated by the EU and that affect you in your daily lives.
Most of our daily activities have an EU law dimension and EU rules have an impact on many different
aspects of our lives. Some examples:
a. Should employees be allowed to wear headscarves at work if the firm they are working
for would like to have a neutral corporate identity?: C-157/15, Achbita v G4S
b. Is Uber just an online app connecting drivers and customers, or is it actually providing
taxi services?: C-434/15, Asociación Profesional Elite Taxi
, c. When is a pacemaker safe, and when is a pacemaker defective?: C-503/13, Boston
Scientific
In our course, we are dealing with EU Constitutional Law. Constitutional law tends to focus more on
the bigger issues: the institutional structures, the law-making procedures etc. However, to provide a
realistic picture of what the EU does and what it means for EU citizens, we will often make a link to
the effect of EU law on our daily lives. This is important to appreciate the aims, scope and impact of
EU law.
Lecture 1: Creating a European Union: An Introduction
Why was the EU created?
A history of war
After World War II, the European countries realised that they had to take radical action to prevent
another war from occurring. Co-operation between sovereign States at the international level had
not worked to guarantee peace. The European countries came to realise that they had to give up
some of their sovereignty if they wanted to maintain peace on a stable basis.
A common market
They decided to create a common market for coal and steel. The ultimate aim of this internal market
was to guarantee peace through trade. If countries started to trade with each other, they would
become more dependent on each other. An increased amount of trade would lead to patterns of
interaction between Member States that would ultimately not make it in the interests of the
Member States to start a war. The common market was soon extended from coal and steel to all
goods, persons, services and capital. However, despite this economic focus, you have to realise that
the fundamental aim of the EU – and of having a common market – is to guarantee peace and to
improve the well-being of EU citizens: see Article 3 TEU. This is the “neo-functionalist” approach of
the EU: the creation of a common market was a tool to promote peace.
How was the EU created?
You will see in the next few weeks that the EU and EU law always do their best to show that the
nature of EU law is special and different from traditional international law and traditional
international organisations, such as the UN or the WTO. Nevertheless, you have to realise that the
EU was itself created through traditional international law means: through the conclusion of a
treaty. Every time the EU wants to make fundamental changes to its structure or organisations, it
has to conclude a treaty to make these changes. Although the EU is a special or “sui generis” kind of
international co-operation, it still has to rely on international law to be able to make important
changes to its constitutional structure.
Lecture 2: The evolution of the EU and EU law
Structure
1. The historical evolution of the EU
2. The substantive evolution of EU law
, 3. The geographical evolution of the EU
Creating a European Union
Why was the EU created?
1. A history of war: after World War II, the European countries realised that they had to take
radical action to prevent another war from occurring. Co-operation between sovereign
States at the international level had not worked to guarantee peace. The European
countries came to realise that they had to give up some of their sovereignty if they wanted
to maintain peace on a stable basis.
2. They decided to create a common market for coal and steel. The ultimate aim of this
internal market was to guarantee peace through trade. If countries started to trade with
each other, they would become more dependent on each other. An increased amount of
trade would lead to patterns of interaction between Member States that would ultimately
not make it in the interests of the Member States to start a war. The common market was
soon extended from coal and steel to all goods, persons, services and capital. However,
despite this economic focus, you have to realise that the fundamental aim of the EU – and of
having a common market – is to guarantee peace and to improve the well-being of EU
citizens: see Article 3 TEU. This is the “neo-functionalist” approach of the EU: the creation of
a common market was a tool to promote peace.
How was the EU created?
You will see in the next few weeks that the EU and EU law always do their best to show that the
nature of EU law is special and different from traditional international law and traditional
international organisations, such as the UN or the WTO. Nevertheless, you have to realise that the
EU was itself created through traditional international law means: through the conclusion of a
treaty. Every time the EU wants to make fundamental changes to its structure or organisations, it
has to conclude a treaty to make these changes. Although the EU is a special or “ sui generis” kind of
international co-operation, it still has to rely on international law to be able to make important
changes to its constitutional structure.
Means of international co-operation
a. Intergovernmental co-operation - international law, vote on unanimity, retention of
sovereignty
b. Supranational co-operation: independent interest from the States, qualified majority
voting, States give up some of their sovereignty in favour of the supranational
organisation (override/overrule on certain occasions the wishes of individuals member
states.
c. Federal co-operation: federation, two different levels of government (federal and
regional state level, with citizens represented at both levels), certain issues can be
regulated at both (depending on severity)
Supranationalism vs. Intergovernamentalism
