Constitutional Law of the
European Union
Course - Prof. dr. Elise Muir & Prof. dr. Piet Van Nuff el
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
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,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.
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
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,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,
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
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, 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.
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.
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