Week 1: Introduction to EU Law
Law of the European Union | LLB International and European Law | Year 2 | Block 1
Lecture 1: The Nature of the EU and the Principle of Conferral
The Nature of the EU
● The EU was created as a treaty amongst ‘high contracting parties’ → 1 TEU.
● The EU is a union created by states – therefore, not a state itself.
● However, it is also more than an ‘ordinary’ treaty of international law → Van Gend en
Loos case.
○ Individuals originally had hardly anything to do with the EU, given it was primarily
between states. The Court of Justice of The EU (CJEU), however, says that this
treaty is different, e.g. because of the preamble referring to the people of the
Member states (not only the governments)
● The EU does have similarities with other entities:s
○ Some federations; USA, Switzerland, Belgium
○ Similar to (national) Constitutional Law
○ Some ways, Public International Law
● If the EU is only slightly similar to many things, what is it?
Schütze’s View on The Nature of The EU
● Schütze: Known for the comparison between the EU and USA; understanding the EU in
light of the American tradition.
○ Like the US, it could be seen as a ‘Federation of states’
○ Sovereignty is split between the (federal) institution and (member) states
● EU in light of German tradition
○ No middle between international and national law; also no middle between
confederation and federal state (federalism must pertain to a state)
○ Therefore: the EU is either a federal state, OR a confederation of sovereign
states (since member states retain (most of) their sovereignty)
● Understanding this about the EU is important for various political, cultural and societal
reasons — as well as for understanding that the ultimate authority is in cases of conflict.
○ AKA where does the ultimate authority exist?
● The exclusive right to propose legislation lies with INSTITUTIONS (which are the
executive authority with the primary aim of defending and advancing the interests of the
union — which is unusual, considering in most other situations it would not.
The Principle of Conferral
● A central principle, this is enshrined in the TEU: 4(1), 5(1)+(2)
● Comparing with the German and American systems:
○ 70(1) German Basic Law → right to legislate as long as basic law doesn’t conger
legislative power on federation
, ○ 10th Amendment US Constitution → powers not delegated to US by constitution
nor to states is going to the states or people
● Similarities exist only so far; no longer extend in areas of sovereignty, secession,
taxation or foreign policy (for example).
Types of Competences
● Exclusive competences → 2(1), 3 TFEU; Only the EU can legislate in these areas,
Member states only able to if so empowered by the Union.
● Shared competences → 2(2), 4 TFEU; Both the EU and member states share
competence – member states in such a capacity as the EU has not yet exercised power.
● Supporting competences → 2(5), 6 TFEU; The EU holds very limited competence in
these areas, actions mainly carried out by member states as those are elements they
want to keep within their sovereignty (e.g. culture and tourism).
Choosing the Correct Legal Basis
● This is the practical application of the principle of conferral.
● The legal basis is a provision that stipulates what institution in the EU can adopt what
certain measure with which procedure.
● How does one choose the right legal basis, and how does the court determine what the
correct legal basis is? Titanium Dioxide : look at “objective factors amenable to judicial
review”, particularly “aim and content of the measure” (para 10)
○ The context of the case sounds like environmental protection – but it also relates
to the internal market. If some Member States have strict rules and other lenient
ones on waste management, companies throughout the EU cannot compete as
effectively with companies from certain member states.
○ The Commission said the legal basis should be 114 TFEU. The Council insisted,
however, that the aim was more environmental — so 192 TFEU as a basis —
which allowed the council to adopt measures independently (at the time).
○ The Commission and Parliament were unhappy with this move. In the end, the
Court of Justice agreed with the Commission.
What is the EU internal Market?
● 26(2) TFEU → “The internal market shall comprise an area without internal frontiers in
which the free movement of goods, persons, services and capital is ensured”
● From a legal point of view, everything begins with 26(2) TFEU, which stated that the EU
Internal Market would consist of an area without “internal frontiers”. Translates into other
provisions; the following.
● Four Fundamental Freedoms
○ Goods: 34 TFEU → no quantitative restrictions on imports.
■ E.g. Buying and selling goods and services throughout the union
■ See 30 + 110 TFEU on negative integration.
○ Persons: 21 TFEU (citizens); 45 (workers); 49 (freedom of establishment)
■ E.g Freedom of movement and residence
