Ch 1: introduction EU
Ch 2: development of EU
Ch 3: EU’s political institutions
Lecture 1
-
Lecture 2
Principle of conferral: EU has competence to act
Principle of subsidiarity: action of MS insufficient to achieve certain purpose
o Subsidiarity test (when shall the Union act?) p. 112
Principle not applicable in areas of Union’s exclusive competences, so
there must be no action in areas where the Union enjoys exclusive
competence (art. 2(1) and 3 TFEU list of exclusive competences)
The objective of the proposed action cannot be sufficiently achieved
by MS
By reason of scale or effects of the proposed action, the objective can
be better achieved at Union level, in other words, the Union action
would provide added value over action by MS acting individually
Principle of proportionality: action of EU must be limited to what is necessary to
achieve objectives of treaties. Content and form of action must be in keeping with
aim pursued
o Trailers: regulation is suitable to reach the goal proposed. Measures must be
necessary in the sense that less restrictive measures aren’t available or
wouldn’t be effective
Protocol NO. 2 on the Application of the Principle of Subsidiarity and Proportionality
Ch 5: legislation in EU. (3 principles)
Ch 6: effect of EU law in national legal systems (direct and indirect effect)
, Ch 6
Tutorial 1: Direct Effect
Direct effect Treaty provisions (Van Gend en Loos), transposition not necessary
o (primary law) individual vs. MS (vertical) OR (horizontal) p. 16 notes p. 147
and further
TEST to produce direct effect, provision must include an obligation for MS that is:
o 1. Clear
o 2. Unconditional (MS has no reservation)
o 3. Implementation measures not required
Regulations direct effect (horizontal and vertical) p. 151 & notes p. 22
o Provisions precise and clear
o No implementation required
Can directives have a direct effect? YES (Van Duyn v Home Office) and (Becker) p. 17
notes
o vertical direct effect!! (no horizontal direct effect, directives binding on MS
(Marshall)
TEST individuals can invoke provisions included in a Directive against a MS when
(Becker):
o 1. Subject matter/provision sufficiently precise and unconditional
o 2. Deadline expired and no (correct) implementation measures at national
level
o 3. Provisions define right which individuals are able to assert against the State
(aka vertical application)
o (confer rights to individuals? P. 83 notes)
Van Duyn
o 1. Rule of behavior is clear
o 2. Deadline to implement Directive is expired (Ratti)
o 3. MS did not implement the Directive….
o 4. … or partially/incorrectly implemented (Becker)
Directives can have direct effect against State, even when it’s acting as employer (in
its private function) (Foster) (zie summary van vera)
An MS which has not adopted the implementing measures required by
Estoppel argument (Marshall, Becker, Ratti) directive within prescribed period may not plead, as against individuals, its
own failure to perform the obligation which the directive entails (Ratti)
Indirect effect EU law: EU law sources, which don’t have direct effect, can still be
indirectly invoked within a national legal system (Von Colson).
o Duty of consistent interpretation/indirect effect: duty of all national bodies
to interpret all national law in light of and in conformity with EU law
o Duty of sincere cooperation (art. 4(3) TFEU)
Principle of primacy: EU law prevails over national law p. 83 notes (Costa) (Simmenthal)
1. ‘sui generis’ legal order
2. MS permanent limitation of sovereignty
3. EU law same effect in all legal order
4. National judges disapply national norms and apply EU law
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