Constitutional Law of the European Union
Course - Prof. dr. Elise Muir & Prof. dr. Piet Van Nuffel
Session 1 – Introduction + The Dynamics in the EU Institutions
What is “Constitution Law of the European Union”? Is it only descriptive, or is it a normative
rule? Are there any values which are so fundamental, you must apply them. It’s a bit of both.
Every Member State has its own constitutional law, even though some of them don’t have a
constitution per se. It doesn’t matter how you call it. Once you have a basic text with
fundamental rules, you have a constitution.
The European Union’s journey is one deeply entrenched in treaties, commencing with their
inception and persisting as the guiding framework of the Union’s functioning. These treaties
are products of intricate negotiations among the Member States. Foremost among them are the
Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union
(TFEU), supplemented by the Charter of Fundamental Rights of the European Union. These
foundational treaties are amendable through the negotiation of new treaties.
In 2003, a pivotal shift in perception emerged, positing the need for an overarching constitution
that would supplant extant treaties—an aspiration embodied in the Treaty Establishing a
Constitution for Europe. Subsequently, a consensus was reached, and referendums were
conducted within Member States. However, this ambitious project encountered setbacks as
both France and the Netherlands rejected it.
In the wake of this considerable setback, the President and Chancellor of Germany embarked
on the development of a new treaty, departing from the nomenclature of a constitution while
retaining its substantive essence, recognizing the eventual necessity of a constitutional treaty.
In 2009, the Lisbon Treaty emerged, comprising both the TEU and TFEU, constituting the
EU’s foundational legal corpus. Although devoid of the label “constitution,” these treaties
assume the role and attributes of a constitution without perturbing the equanimity of EU
citizens.
A prevailing notion is that the EU’s existence harmonizes within national constitutional
systems, manifesting through constitutional clauses in Member States delineating the hierarchy
of EU laws within their national legislation (hierarchy of legal norms, Kelsen). The uniform
application of EU law stands as one of the EU’s fundamental tenets, guided by the principle of
primacy, which, regardless of its textual inclusion in treaties, stands as an immutable and
sacrosanct doctrine, requiring unwavering adherence.
Conceptually, a constitution lays the groundwork for a nation’s institutions and their functions.
Analogously, the European Union operates with its own institutions: the legislative apparatus
chiefly resides within the European Parliament (EP), the executive domain is shared by the
European Commission and the Council, and the enforcement of laws engages both the
European Commission and the Member States. Judicial oversight, especially concerning
national constitutions, rests with the European Court of Justice (ECJ) alongside national courts.
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,The concept of a constitution implies a safeguarding of citizens against the state, underpinned
by the implementation of values (articulated in Article 2 TEU) and fundamental rights.
Counterbalancing mechanisms permeate every facet of EU institutions to shield its citizens
from internal overreach, incorporating procedural mechanisms absent in national constitutions
but integral to the EU’s legal fabric.
A landmark decision, CJEU Case 294/83 Les Verts v European Parliament, assumes paramount
significance. Les Verts alleged discrimination in fund allocation and questioned whether a
European party could litigate against the European Parliament. The CJEU responded
affirmatively, invoking the rule of law. Within the EU, all entities, including institutions and
authorities, are subject to the same legal standards. However, the treaty texts did not envisage
such a scenario, ushering in a precedent wherein any legally consequential act may be subject
to challenge.
Article 7 of the TEU serves the purpose of denouncing a risk of EU values’ breach.
Nonetheless, initiating such a procedure does not preclude the Member State from fulfilling its
presidency duties. Interfering with the presidency would contravene treaty obligations, as the
EU remains bound to uphold the rule of law, as underscored in Les Verts, thereby eschewing
the prevention of a Member State’s presidency.
Session 2 – Division of Competences between the EU and the Member
States
In the realm of European Union constitutional law, a fundamental tenet dictates that for the EU
to exercise its authority, a sound legal basis must be in place. Legal texts serve as the compass,
delineating the extent of competence attributed either to individual Member States or to the
Union as a whole.
The European Union’s competences, or areas of authority, are of paramount importance in this
context. Article 3 of the TFEU sets forth the overarching objectives of the EU, which, while
expansive in scope, paradoxically necessitate a specific legal foundation to confer competence
upon the Union.
Article 5 of the TFEU further elucidates the framework by introducing the principles of
subsidiarity and proportionality. This provision stipulates that while the EU may act within its
prescribed competence, there are inherent limitations. The Union’s actions must align with the
boundaries defined by these principles, ensuring that it does not overstep its authority.
Article 114 of the TFEU introduces a unique clause, as it does not specify the specific area in
which the EU may act. Instead, it presents a general clause encompassing matters related to the
regulation of the internal market. This broad scope allows the EU to address a wide array of
issues within this sphere.
Article 352 of the TFEU may appear as a potential loophole to the principle of conferral.
However, the requirement for unanimous decision-making by Member States serves as a
safeguard against unwarranted expansion of EU competence. This article proves instrumental
in addressing unforeseen situations not covered by the existing treaties, maintaining a degree
of flexibility within the EU’s legal framework. Akin to Article 352, Article 353 of the TFEU,
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,often referred to as the “flexibility clause,” offers a mechanism for adapting to unforeseen
circumstances.
Within this context, a distinction emerges between general legal bases and specific legal bases.
An assessment of the legal basis necessitates an evaluation of its substantive scope and
limitations, as outlined in Article 165 of the TFEU. Each legal basis also encompasses a
procedural aspect, typically entailing the application of the ordinary legislative procedure
(OLP). Additionally, the choice of instrument, such as a directive or regulation, is a critical
facet of the legal basis.
A prominent case, C-376/98 Germany v European Parliament and Council, commonly known
as “Tobacco Advertising I,” serves as a vivid illustration of the constitutional implications of
the choice of legal basis. In this case, Germany contested the EU’s authority to regulate tobacco
advertising on public health grounds. The dispute centred on whether such regulation fell
within the EU’s competence regarding the internal market. The CJEU acknowledged certain
concerns related to Article 114 of the TFEU but ultimately annulled the directive in question,
proposing revisions. Subsequent legislative approval by EU institutions affirmed the
legitimacy of the revised directive.
Article 122 of the TFEU plays a pivotal role in enabling the EU to adopt measures addressing
severe economic or financial difficulties, even in areas typically outside its competence. This
provision facilitates coordinated responses among member states during crises, fostering
solidarity and stability within the EU. Nonetheless, limitations, including the necessity for a
proposal from the European Commission, constrain its application.
In CJEU Case C-5/16 Poland v European Parliament and Council, Poland contested EU
measures on environmental grounds, invoking Article 122 TFEU. The judgment underscored
that the choice of legal basis must be justified by objective facts, rather than future effects. The
legal basis must accurately align with the measure’s objectives and content.
In considering the competences retained by Member States, it becomes evident that many treaty
powers are shared between the Member States and the European Union. Exclusive powers,
outlined in articles 2, 3, and 4 of the TFEU, are relatively limited. For instance, Article 207
TFEU pertains to trade policy, including external trade, as an area of exclusive EU competence.
Article 2 of the TFEU serves as a cornerstone provision, underscoring the principle of conferral
in EU law. It delineates the boundaries of EU competence, emphasizing that the EU can only
act within the powers conferred upon it by Member States through the EU treaties. This article
underscores that Member States retain authority in areas not explicitly delegated to the EU.
A case of note, CJEU Case C-389/15 Commission v Council (Revised Lisbon Agreement on
Geographical Indications), exemplifies the application of Article 2 TFEU. This case
demonstrates that even in areas of exclusive EU competence, elements may touch upon shared
competence or areas not explicitly conferred upon the EU. This jurisprudence emphasizes that
member states maintain their competence in areas not expressly granted to the EU, thereby
ensuring a delicate balance between EU and Member State powers.
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, Session 3 – Testing the Scope of EU Competences: Free Movement and
Member States’ Societal Choices
In the realm of EU constitutional law, the delineation of competences between Member States
and the Union itself is a matter of paramount significance. Within this intricate framework,
Member States’ actions are circumscribed by the presence of either exclusive or shared
competences. The latter category, shared competences, is subject to a meticulous array of
principles that serve as pivotal mechanisms for maintaining the delicate equilibrium between
national and supranational authority.
Foremost among these principles is the doctrine of primacy. Under this doctrine, should a
conflict arise between EU law and the domestic legal orders of Member States, the supremacy
of EU law prevails. The principle of primacy underscores the overarching authority of EU law
in cases of incompatibility with national legislation, thereby ensuring the uniform application
of EU rules and regulations throughout the Union.
Furthermore, the doctrine of pre-emption plays a salient role in governing the actions of
Member States. It enunciates that Member States are empowered to legislate only in cases
where the EU has not exercised its legislative competence. This principle serves as a corollary
to the doctrine of shared competences by affording Member States the latitude to act when the
Union has not ventured into the regulatory domain in question.
Subsidiarity, as a foundational tenet, reinforces the principle that EU intervention should only
occur when it can demonstrably achieve greater efficiency or added value in comparison to
action at the national level. This principle underscores the fundamental principle of conferral
enshrined in the Treaties and serves as a bulwark against undue centralization of powers within
the Union.
However, it is imperative to acknowledge that the Member States’ legislative prerogatives are
not untrammelled. The Treaties of the European Union proffer a constellation of principles that
may impose constraints on the ability of Member States to legislate autonomously. Notably,
the principles of free movement—encompassing the free movement of goods, persons,
services, and capital—constitute fundamental pillars of EU integration. These principles
interdict any measures adopted by Member States that could potentially encumber the free flow
of these essential elements within the internal market.
Moreover, the principle of citizenship occupies a prominent position in EU constitutional law,
endowing individuals with a pan-European status replete with a suite of rights that Member
States must respect and uphold. Thus, Member State legislation contravening the principle of
citizenship may find itself subject to the scrutiny of the EU legal order.
Simultaneously, the principles of competition and State aid operate as sentinel mechanisms
within the EU’s legal architecture, ensuring the maintenance of fair and undistorted
competition within the single market. In instances where Member State measures run afoul of
these principles, they risk being invalidated.
To curtail or restrict any of the four foundational freedoms—whether of goods, persons,
services, or capital—a Member State is required to substantiate the presence of a justified,
legitimate, and necessary interest. This evidentiary threshold underscores the essentiality of
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