Introduction to International
and European law notes
2019
,European Law Notes
Week 1Autonomy & Supremacy
Intro
Created for peace & security Article 3(1)
Based on two framework treatiessecondary law comes from this
TEUGeneral articles clarifying the union
TFEUSpecific articles on institutions/policies
Methods of integration
I.) Deepening>Widening
o Deepening (more intrusive powers)Economic integration
Article 1: ‘MSs confer competences to achieve objectives they have in common’
Articles 2-6 TFEUAll the competences conferred
ECSC (1952)
-Integration of Franco-German coal & steel industries
Treaty of Rome (1957)
-Common Market (EEC)
-Nuclear energy (EURATOM)
Treaty of Maastricht (1992)
-Socio-political aspect introduced (right/obligations for EU citizens)
Charter of Fundamental Rights (2001)
o Widening (Broader powers)
Article 1: ‘An ever-closer union amongst the people of Europe’Social/political integration
6 MSs28 MSs
Keep countries out of the USSR sphere of influence
II.) Positive/negative integration
o PositiveAligns legislation of MSs (harmonization)
o NegativeElimination of barriers to achieving EU treaty goals (prohibitions)
III.) Nature=Intergovernmental/supranational/federalist integration
o IntergovernmentalStates and national governments as the primary actors in integration
-Special legislative procedure (Council of Ministers)
-Voting by Unanimity
o Supranationalbodies set up by the EU drive integration
-Ordinary legislative procedure
-Voting by simple majority or QVM
o Federalism
-Combining self-rule of MSs with shared rule of the common EU institutions
Competences transferred
-Direct contact between MSs & EU (Council of ministers)
-Direct communication between citizens & EU (Preliminary rulings)
History of EU
Treaty establishing ECSC (1952)
o Common market for steel and coal
o 6 European States
Treaty of Rome (1957)
o Created two additional communities (EEC & EURATOM)
The Maastricht treaty (1992)
o EEC is renamed EC
o European Union is born
3 pillars
1.) European community(supranational)
2.) CFSP (inter-governmental)
3.) Police & judicial cooperation(inter-governmental)
Lisbon treaty (2007)
o Established the TEU and TFEU
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o The EU is given full legal power & the EC is dissolved
Nature of EU law
SovereigntyThe highest authority in the state/ability of state to govern itself
AutonomyCreating laws and being able to decide on their application
Sovereignty v Autonomy
Sovereignty=Making laws
Autonomy=Deciding how law applies
SupremacyThe ability to override another legislative will (conflicting laws)
DualismInternational law & national law are separateimplementation
Monisminternational law & national law are part of one legal system
Autonomy v Supremacy
Autonomy= More externalRegarding the applicability of EU law in the whole legal order
Supremacy=more internalLooking at conflict between national laws & EU law
Case law: Van Gend en LoosAutonomy
Fact: VGEL importing goods from Germany to Netherlandsincrease in categorization of their goodsthis was
prohibited in the EU treaty
Question of law: Can nationals of a state lay claim to individual rights which the court must protect (direct
applicability)
Judgement:
(a) New legal orderlimited state sovereignty
(b) Independently of national lawimposes right and obligations on individuals
Monism and Dualism are chucked, EU law decides on its own applicabilityautonomous legal
orderRegulations/Treaties/Decisions are all directly applicable, Directives are not because of their nature
Case law: Costa v ENELSupremacy
Also mentions the new legal order
Fact: Mr Costa opposes nationalization of Italian electricity industrylex posterior means the national law prevails
Question of law: Should EC law be considered supreme over national law?
Judgement: Eu law is supreme otherwise it would be deprived of its character
Declaration concerning primacy (pg 151)
o A cornerstone principle of EU law despite not being enshrined in the treaties
The ‘New legal order’
MSsprinciple of conferral’limited sovereignty’autonomous legal orderTreaties/regulations/decision(directly
applicable)directives are notdoesn’t matter if they receive IL monism or dualism
Question on Autonomy
1.) State definition
2.) State VGEL/CostavENEL
3.) State that monism and dualism are not relevant
,European Law Notes
Week 2Institutions & competences
We focus on the Council of Ministers, Commission & the European Parliament
Types of voting—
1.) Simple majorityjust more than the second highest
2.) Absolute majoritytotal/2 +1
3.) QVM2/3
4.) Unanimity
Policy and legislative competences
3 types of legislative competences
EUnot a statenot sovereignPrinciple of conferralmust be conferred in the treaties (limits)
Categories of competences
1.) Exclusive competences—
Article 2(1) TFEUGeneral description
Article 3 TFEUActual competence
o In these areas only the union may legislate and adopt legally binding acts
o Areas born with the Union
Eg Customs Union & competition
o MSs can act if the Union confers the power on them or for the implementation
2.) Shared competences—
Article 2(2) TFEUGeneral description
Article 4 TFEUActual competence
o In these areas both the Union and MSs have the competence to legislate
o As soon as the EU exercises this competence, the MS may only legislate to implement
Either, or but not both
o These were competences of the national government before the EU
Eg internal market, environment
3.) Complementary competences—
Article 2(5) TFEUGeneral description
Article 6 TFEUActual competence
o These only support, coordinate and supplement the actions of MSs
o The EU may not harmonize national law
Cannot alter existing national law
o These are still legally binding acts
Eg public health
4.) CFSP
Article 24 TEU
o The EU has no legislative powerdefine & implement only
o Policy that is governed by intergovernmentalism
Member states must not abuse their competences under Article 40 TEU
Harmonization
Applies to shared competences only
Exclusiveisn’t necessary
ComplementaryUnion is not allowed to harmonize
o Aims to reduce/remove disparities in MSs legislation
National laws are replaced by an EU standard
Types—
1.) Exhaustive/partial
o Focus on room for MSs outside the scope of the union measure concerned
Exhaustive-
o All aspects of the policy area have been regulated by the EU
Eg Factory causing pollution
Regulates gathering of raw materials, functioning of factor & waste
Partial-
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o Some aspects of the policy area have been regulated by the EU
What is not regulated by the EU remains a competence of the MS
Eg Factory causing pollution
EU only regulated the collecting of raw materials
2.) Maximum/minimum
o Focus on room for MSs within the scope of the union measure
Maximum—
o MS cannot go above or below the standard set, they have no discretion
Eg The EU sets a wage for all shopworkers of $5
Minimum—
o Within the policy area, the MSs are allowed to go above the minimum set
Eg The EU sets a minimum wage for all shopworkers of $5
Institutional principles
The principle of conferral
Conferred in the treaties by MSs
The principle of subsidiarity
The principle of proportionality
The EU enacting secondary legislation (under 288 TFEU)
1.) Definition of a competenceThe substantive field within which an authority is entitled to legislate
2.) The principle of conferral
3.) Competences in 3-6 TFEU
4.) General policy area selected
5.) Specific legal basis
Purpose, party, procedure
(a) PurposeWhat the policy sets out to achieve
(b) PartyRelevant EU institutions that can act
(c) ProcedureOrdinary or special legislative procedure
You need all 3 for it to be a legal basis
Two effects of legal basis
1.) ProcedureIndicate the decision-making procedure
2.) SubstantiveContent of the EU measure is established
General union competence: The harmonization clause
114 TFEU
o EU can adopt measures for the harmonization of national laws which have as their objective the functioning of
the internal market
Case law: Germany v Parliament & councilsubstantivenot entitled to harmonize
Facts: The council and EU parliament adopt a directive which is the total prohibition of advertising & sponsorship of
Tobacco products under Article 114 TFEU, however allot of the directive is about public health where the EU is not
entitled to harmonize
Question of law: Has the EU used the wrong substantive legal basis?
Judgement: Introduces aim & content testpublic health may be decisivecan have influence on another rpolicy
area but it has to be 51% content of internal market
3 constitutional limits to the harmonization clause
Introduced after Tobacco Advertising
1.) EU law must harmonize national law
Cannot leave national law unchanged
2.) A simple inconsistency in national law is not enough to trigger the harmonization clause
Inconsistency must obstruct the internal market
3.) The unions legislation has to contribute to limiting the obstacle to the internal market
Must actually contribute to solving the problem
Case law: Parliament v CouncilProceduralentitled to harmonize but wrong procedure
Facts: Parliament is calling for an annulment of a regulation by the council because it used the
wrong legal basis & parliament should have been involved (ordinary legislative procedure)
Both agriculture and the environment are shared competences so the union is entitled to harmonize
Question of law: Has the council used the wrong legal basis to oust the parliaments involvement?
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Judgement: Need to use aim and content test to see where the centre of gravity is (51%)
(a)Principally in one particular fieldone legal basis is sufficient
(b) In two different fieldspossible to use two legal bases when the procedure is the same
Centre of gravity test
o You need the provisions in order to be able to apply this test, if you do not have them you still mention it
Tobacco v Parliament.vCouncil
Similarities: Both about adopting the right legal basis
Difference: In one the EU should not have acted (substantive) in the other the wrong procedure was followed
(procedural)
Institutions of the EU as political rivals
o Rivals
a.) Some institutions are more intergovernmental and some more supranational
b.) Parliament v councilcompete to legislate
c.) Checks and balancesParliament composes and dissolves the commission
o Not rivals
a.) Treaties set out common goals
b.) The ordinary legislative procedureEP & Council together
c.) Article 13(2)mutual sincere cooperation between institutions
d.) Even ‘parliament’ becomes institutionalized forming coalitions
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Week 3Subsidiarity and proportionality
The EU treaties regulate the tension between sovereign states and the EU through the institutional principles
The principle of conferral
o EU institutions can easily by-pass this Case law: Tobacco Advertising
o MSs sovereignty is therefore protected by the principle of subsidiarity& proportionality
The principle of subsidiarity (Article 5(3) TEU)
This is about the use of the competence: should the union act?
o Applied in shared and complementary competencesArticle 4 &6 TEU
o If both the EU and the MS are competent, we need to determine who obtains the competence
Strict sense: ‘if’Asking ‘if’ the union should act
Broad sense: ‘in so far as’How should the union act?
Subsidiarity test
Cumulative so both have to be fulfilled
1.) Transboundary test
‘Action cannot be sufficiently achieved by the MS’ (Article 5(3))
o Problems that transcend national borders
Eg Climate change
2.) Economies of scale test
‘By reason of the scale or effects of the proposal action be better achieved at the union level’
o Efficiency/cost testEU size=always more efficient /cheap
28 different acts from MSs Vs 1 from Brussels
Political & Judicial safeguard
Protocol no 2 (pg 132)
1.) Political safeguard ‘if’strict sense
o Union hasn’t acted yet
-Article 5(3) TEUmentions national parliaments assessing compliance
-Article 12 TEUNational parliaments & Subsidiarity
Active involvement of national parliaments
1.) Article 4Scrutiny
2.) Article 7Enforcement
Yellow card mechanism (Article 7(1)(2))Drafts
o Can maintain, amend or withdraw
Orange card mechanism (Article 7(3))Proposals
o Can maintain, amend, withdraw
Red card mechanism
o There is no veto by MSs, this would distort EU power
The political safeguard adds very little, still ultimately left up to the EU
2.) Judicial safeguard ‘in so far as’Broad sense
o Union has acted and there has been an infringement of subsidiarity
-Article 8: The CJEU has jurisdiction in infringement of the principle of subsidiarity
Case law: Working time directive
-Had to be a manifest error or misuse of powerhigh threshold
Compliance with the principle of subsidiarity is mostly left up to the political protocol
Reality for subsidiarity
o Not a single act has been revoked on the basis that it violated the principle of subsidiarity
o The transboundary test is easy to fulfil & once it is fulfilled the economies of scale is automatically fulfilled
The principle of proportionality
o Balancing interests, the form and content should not go beyond what is proportional
Form proportionality
Found in article 288 TFEU
o If the aim is to get one country to abide by a regulation, then a directive may not be proportional
Content of proportionality
-Suitable
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Means is suitable to achieve the goal
-Necessary
Cannot go beyond what is necessaryis there another way with less negative implications?
-Not excessively burdensome
-Balancingpositive outcome must be more important than negative consequences
Content of Political and judicial safeguard
Protocol no 2 (pg 132)
-Article 5(4) TEUmentions the protocol
1.) Political safeguardArticle 5
2.) Judicial safeguard
ECJ performs a marginal review (Fedesa)
Facts: Fedesa bring proceedings against the Minister for Agriculture, on the validity of national regulations because
the directive is invalid
Question of law: Is the directive in violation of the principle of proportionality?
Judgement: Marginal review
1.) Not manifestly unsuitable
2.) Not manifestly unnecessary
3.) Not manifestly excessively burdensome
Similarities/differences between subsidiarity & proportionality
o Similarities
-Both are fundamental to the union in areas where exclusive competence is absent
-Both limit the unions actions
-Both are easy to bypass ‘manifest’
o Differences
-Political safeguard is more prevalent with subsidiarity
Legal acts (288 TFEU)
Regulations: Ensures behaviour
-Directly applicable & entirely binding
Directives: Ensures behaviour in a certain way
-Only binding on MSs and binding as to the result to be achieved
Decision
-Legally binding
-Depends who it is addressed to
Recommendation/opinion
-Not binding
Legislative acts
o Legislative acts 289(3) TFEU
1.) Ordinary legislative procedure
Parliament & Council of Ministers together
2.) Special legislative procedure
Form 1: The parliament is the dominant institution & council only provides consent
Form 2: The Council is the dominant institution & parliament only provides consent or consultation
Legislative v non-legislative acts
o Legislative acts
Ordinary or specialized
Enhanced public scrutiny & transpareny
Legal acts with binding force (Directives, Regulations, Decisions)
o Non-legislative acts
Ad-hoc procedure
No transparency requirement
Legal acts without binding force (Recommendations, Opinions)
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Week 4 & 5 Direct effect
o Autonomy & supremacy are preconditions to direct effect
AutonomyEU law can be used in courts (direct applicability)
SupremacyEU law is supreme over conflicting national law
o Principle of sincere cooperation Article 4(3) TEU
EU respects Member statesInstitutional principles
MSs respect EURefraining from measures that could jeopardise the unions objectives
Definitions:
1.) Direct effect:
Weather you can invoke an EU norm and have the rights provided in the national court
2.) Direct applicability
EU law deciding itself on its application
Instruments that give effect to EU law
1.) Direct effect
o Individuals relying on an EU norm in a national court
2.) Indirect effect/consistent interpretation
o National provision interpreted in light of EU norm
3.) State liability
o Liability for damage caused by state not properly implementing EU law
These are all triggers for a moment of reflection, but they only apply in the individual situation
Implementation of EU law
First part only applies to a directive
1.) Transposition
-Usually just ‘copy and paste’
-CJEU is not against divergences but problems will be MSs fault
2.) Operationalization
-Structure set up to make the law effective
-Usually done by the legislator or the executive
3.) Application/enforcement
-The application of the law can go wrong
-The executive is in charge of thiscivil servants report back on misapplication of laws
4.) Sanctioning
-MSs need to stop breaching’s of EU law at a national level
Option 1MS complies with this procedureAchievement of EU goals
Option 2MS does not comply with this procedure
Direct effect, indirect effect, state liability
Direct effect
o Individual invoking EU norm in national court
o Case is solved using EU law
Q1: Who are the parties to the dispute
Vertical/horizontal
Q2: Which category of legal instrument are we dealing with?
Treaty, regulation, decision, directive
Direct effect of primary EU law (TEU & TFEU) & regulations
Horizontal direct effect (Case law: Defrenne)
Vertical direct effect (Case law: Van Gen den Loos)
Inverse vertical direct effectbecause there are obligations for the citizens aswell
‘Sufficiently clear & unconditional’
-Test in VGEL is outdated so we apply our own
Q: Is it capable of being applied in a national court?
Trias politicajudge may not sit in chair of legislator
Sufficiently clear
o Paraphrase how it is clear, doesn’t have to be manifestly clear
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‘Having equivalent effect’ & ‘sustainability’fine
o Material scope: What
o Subjective scope: Right/Obligations
‘Unconditionality’
Definition: No pre requirement
1.) Clauses that shape the scope of application of EU law do not affect unconditionality
o Easy for court to see the scope
Key phrase‘unless’
Material: What is the content/subject of the article
Subjective: Who is the right holder/ who is the obligation holder
Geographic: In the territory of the EU
Temporal: All treaties in the TEU & TFEU (pg 112)/transposition deadline
2.) Exception clauses do not affect unconditionality
o Easy for court to see the exception
Key phrase’Except’
o Should be clear when the exception applies
3.) Public policy choices do affect unconditionalitydiscretionary clause
o There is a political choice for the legislature/executive to make
4.) Factual choices do not affect unconditionalitydiscretionary clause
o Easy for the court to establish
Direct effect of directives
o Binding as to the result to be achieved
o Leave to the national authority’s choice of form and method
Take account of national circumstances
o Must be transposed to give EU citizens their rights
Individuals are only given rights/obligations after transposition
o Transposition period is laid down in the directive
o MSs must transpose in a way that will give effect to EU law
Principle of sincere cooperation 4(3) TEU
o There is the idea that an individual citizen cannot know the content of a directivelegal certainty
Step 1: Apply the sufficiently clear & unconditional test
Step 2: Limitations
(a)Normative limitation
-No-horizontal direct effect of directives
Case law: Faccini doriprinciple of legal certainty
-No-inverse vertical direct effect
Case law: Café Kolpinghuis
Facts: The café is overcharging for tap water and pretending it is mineral water, the Netherlands has not transposed
the mineral water directive and the public prosecutor wants to bring a criminal sanction against the café
Question of law: Can this un-transposed directive have inverse vertical direct effect?
Judgement: The MS cannot benefit from its own failure (estoppel)no inverse vertical direct effect also against legal
certainty (wells)
(b)Temporal limitation
-Transposition deadline has passed
-State has not implemented the directive properly
Vertical direct effect of directives
Case law: Faccini dori
Question of law: Can Faccini Dori cancel her contract provided for by the un-trasposed Consumer protection acts
against a trader (horizontal relationship)
Para 22: Previous case
-Textual argument for vertical direct effectaddressed to MSs
Para 23: Present case
-Estoppel argument for vertical direct effect
Para 24/25: Cannot have horizontal direct effectlegal certainty
-Also use systematic argumentthere would be no difference between a regulation & directive
