BEKNOPTE SV leerstof EUROPEAN LAW + CASE LAW + UITGEWERKTE EXAMENVRAGEN!!!! (Geslaagd in 1x)
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Internationaal en Europees recht (C03K2A)
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Katholieke Universiteit Leuven (KU Leuven)
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An Introduction to the EU Legal Order
Dit document bevat een beknopte samenvatting van de belangrijkste zaken voor het deel European law (p1 t.e.m. p14) + de belangrijkste arresten die belangrijk te vermelden zijn op het examen (p15 t.e.m. p17) + alle examenvragen van de afgelopen jaren VOLLEDIG UITGEWERKT (p18 t.e.m. p32) = vraag 1 (A...
Central objectives / commitments EU = avoid mistakes of the past + sincere cooperation
Essential purpose of EU = Art 1 TEU g creating an ever closer union among the peoples of
Europe
Values of the EU = ART 2 TEU g mutual trust ; all MS will recognise the values & EU law will
implement that they will be respected, once you join the EU-club we assume we can trust you
2 founding principles to the EU = art 4 TEU g equality of the MS & sincere cooperation
forms of economic integration = free trade area, customs union, internal market & common
economic and monetary policy
Evolution ;
1. 1948 : Hague Congress g Council of Europe is created in 1949
2. 1950 : ECHR introduced
3. 1951 : ECSC = treaty establishing the European Coal & Steel Community created
4. 1957 : TEEC = Treaty establishing the European Economic Community creates EEC
5. 1957 : Euratom = treaty establishing the European Atomic Energy Community
6. 1958 : ECSC Common Assembly covers all three communities ; ECSC, EEC & Euratom
g first meeting in 1958 as the ‘European Parliamentary Assembly’
7. 1962 : ‘European Parliamentary Assembly’ changes its name to ‘European Parliament’
8. 1965 : empty chair crisis! De Gaulle blocked decision-making process, because EEC
planned to switch from unanimity to qualified majority, De Gaulle thought that went
too far & refused to attend EEC g unanimity was still the rule so this way he blocked
decision-making
9. 1966 : Luxembourg compromise = end of the crisis g they agreed that when qualified
majority would apply & one MS expressed important concerns, than the matter would
be further discussed g allowed MS to be reassured that their important national
interests would not be disregarded even for the adoption of measures by qualified
majority voting (today, emergency brakes)
10. 1974 : European Council created
11. 1976 : MS representatives elected by direct universal suffrage = The Decision and Act
12. 1985 : Schengen Agreement (no internal border control)
13. 1986 : Single European Act : enhanced Parliament’s role in certain legislative areas
(cooperation procedure), and made accession and association treaties subject to its
assent
, 14. 1990 : Dublin Convention (asylum rules)
15. 1992 : Maastricht Treaty = first attempt to institutionally bridge the purely
intergovernmental nature of several policies developed outside of the EEC Treaty
g amended version of the EEC (creation of new competences) + CFSP + JHA (3 pillars)
g TEEC evolved into TEC ; Maastricht Treaty transformed EEC into EC
g creation of an EMU = Economic and Monetary Union
16. 1997 : Amsterdam Treaty g minimal reforms CFSP, enlargement process
17. 2000 : The Charter of Fundamental Rights (Nice Charter) (no legal effect)
18. 2001 : Treaty of Nice = amendment to Maastricht Treaty & TEC, reformed the
institutional structure of the European Union to withstand eastward expansion
19. 2004 : Draft Constitutional Treaty, annex to the Treaty of Nice on the possibility of
enlargement, idea of Consitution for Europe but NETH & FR negative referenda
20. 2007 : Treaty of Lisbon ; EC = EU, TEC = TEU + introduces TFEU
TEU, TFEU & Charter of Fundamental Rights of the EU = primary legal framework, same legal
value, no hierarchy!!
Proposal for Treaty establishing a Constitution was rejected (2004) g Treaties (TEU & TFEU)
now perform some of the functions of a constitutional norm in EU legal system
COSTA V ENEL = EU Treaties & EU law derived therefrom takes precedence over national law
VAN GEND & LOOS = EU law is integrated to the law of the MS
Enhanced cooperation = art 20 TEU
* within (non-exclusive competences)
* group of min. 9 MS
* to further EU objectives
* last resort
ordinary treaty revision procedure = art 48(2-5) TEU
MS, European European European Convention European Each
Parliament or Parliament & Council reaches Council individual MS
European European approves ; concensus approves approves :
Commission Commission Treaty change on Treaty Treaty Treaty change
proposes taken into change change adopted
issue advice
Treaty change consideration
European Convention European One or more
Council rejects fails to reach Council MS reject :
; Treaty concensus : rejects : Treaty change
change not Treaty Treaty not adopted
taken into change change not
consideration rejected adopted
MS, European European European Each
Parliament or Parliament & Council individual MS
European European approves approves :
Commission Commission Treaty Treaty change
proposes change adopted
issue advice
Treaty change
European
Council
One or more
rejects ;
MS reject :
Treaty
Treaty change
change not
not adopted
adopted
Differentiated integration : Schengen area & Eurozone
CHAPTER 2 : ACTORS OF THE INTEGRATION PROCESS
MS = duty of sincere cooperation ; must refrain from any measures which could jeopardize
the attainment of the Union’s objectives
MS = represented within : European Council = level of Heads of States or Governments
Council = ministerial level
Accession = art 49 TEU
Any European state (broad, not defined!) + respect values of art 2 TEU + promoting values
g Copenhagen criteria
* economic (functioning market economy + capacity to cope with competitive pressure
and market forces within EU)
* political (stability of institutions guaranteeing democracy + rule of law + HR + respect
for / protection of minorities)
* structural (ability to take on the obligation of membership including adherence to
the aims of political, economic & monetary union)
procedure :
1. state applies to the Council & notifies national parliaments, Council acts unanimously
after consulting Commission & with consent of Parliament
2. Council decides whether EU starts negotiations, relies on work of Commission, if
negotion mandate g state becomes candidate country
3. Negotiations in intergovernmental conference ; structured per chapter & checked
against EU acquis
4. Positive decision by Council (acting by unanimity), between all MS
5. Ratification + modifies primary law
,Withdrawal = art 50 TEU
Possibility for MS to voluntarily & unilaterally withdraw its membership, European Council
must be notified
Withdrawal agreement is concluded between EU & departed State by the Council (acting by
qualified majority) after obtaining consent of the Parliament ; ensures orderly withdrawal +
lay ground for sound future relationship g on date of entry into force = EU Treaties cease to
apply & state becomes third State (if no agreement : 2y after notifying European Council)
EU citizenship = additional to national citizenship
EU citizens = directly represented in European Parliament + given voice by representatives of
their states (indirectly represented in Council & European Council)
National parliaments monitor the implementation of EU policies
EU citizens have political rights enabling them to contribute to the democratic process at EU
level
Art 11(4) TEU = possibility for group of EU citizens to invite the Commission to propose the
adoption of a legal act (under certain conditions)
EU citizens have right to non-discrimination & free movement (= art 18 TEU ; right to exit,
enter & reside on the territories of the MS)
EU institutions = listed in art 13 TEU
Principle of conferral = each institution shall act within the limits of the powers conferred on
it in the Treaties
PARLIAMENT : art 14 TEU
Degressively proportional = proportionate representation but adjusted to reflect the varying
sizes in population of the MS, the number of MEP grows more slowly than it should under
strict proportionality system
Not possible to combinate mandate as parlimentarian at national level & at EU level
MEP’s organise themselves at EU level by political affiliation (if not = non-inscrits)
Tasks structured in committees to which MEP are appointed
Votes by majority of the votes (two-thirds majority in exceptional cases)
EUROPEAN COUNCIL : art 15 TEU
Acts by consensus
Provides EU with necessary impetus
Voting by qualified majority, unanimity or simple majority (depends)
,COUNCIL : art 16 TEU
Works in several configurations depending on the subject (no hierarchy)
Rotating presidency : each MS 6m, 3 MS in one period so 18m / period
Supported by Committee of Permanent Representatives = COREPER
Acts by qualified majority voting
Other voting procedures : simple majority (14/27) & unanimity (27/27)
COMMISSION = art 17 TEU
Commissioners are chosen on ground of their general competence & European commitment
from persons whose independence is beyond doubt
Spitzenkandidaten process = practice in European Union where each political group in the
European Parliament nominates a lead candidate (Spitzenkandidat) for the role of President
of the European Commission. These candidates are typically drawn from the major political
parties and the one whose party secures the most seats in the European Parliament elections
is expected to be appointed as the President of the Commission.
Consent of the Parliament is necessary to appoint the Commission as a body
Act by simple majority vote
Promote the general intrest of the Union
HIGH REPRESENTATIVE OF THE UNION FOR FOREIGN AFFAIRS AND SECURITY POLICY = art
18 TEU
Attempt at enhancing the coherence of the EU’s visibility on the international stage
President = automatically vice-president of the commission
COURT OF JUSTICE OF THE EUROPEAN UNION = art 19 TEU
Court of Justice & General Court
Judged sit in formations assigned for each case g depends on difficulty & importance
Written application to respective Registrars = bringing case to Court
Written & oral stage
Judge rapporteur
EU law primarily interpreted + applied by the courts and tribunals of MS : review legality of
EU acts, ensures that MS comply with EU obligations + interprets EU law at request of national
courts & tribunals
Doesn’t interpret national law!!!!!!!!
,CENTRAL BANK = art 282 TFEU
Primarly in charge of monetary policy
Top of all central banks of MS
Has legal personality
Objective = maintain price stability + support general economic policies in EU to contribute
achievement of the primarily objective
COURT OF AUDITORS = art 287 TFEU
Audits EU’s activities + examines revenue and expenditure of EU organs
Issues reports testing whether spending in giving prong of EU activities has been most
economical efficient & effective
Duty to report cases of irregularity
Reports to OLAF & EPPO
ADVISORY BODIES
Economic and social committee = art 301 TFEU
Committee of regions = art 305 TFEU
EU AGENCIES
Created on ad hoc basis by a legal act of the EU institutions to meet specific needs
EU ACQUIS
= accumulated body of European Union laws, policies & obligations that MS have agreed to
adopt & implement. It encompasses the entire body of EU legislation & includes :
- primary legislation (TEU & TFEU)
- secondary legislation (regulations, directives & decisions adopted by EU institutions)
- case law (ECJ)
- international agreements
- EU policies & standards
MS are expected to align their domestic laws with the EU acquis to ensure uniformity &
cooperation within the single market
,CHAPTER 3 : SYSTEM OF EU NORMS
PRIMARY LAW
EU Treaties = constitute EU primary law g 3 main functions :
- set out rules for functioning of EU legal system
- define fundamental objectives, principles & certain rules of EU substantive law
- define existence of EU competences
several doctrines articulate forms of legal authority of EU law over national law g Treaties
deploy a vast array of legal effect in national legal orders
- doctrines of primacy : primacy of EU law over national law + duty for national authorities
to interpret national law in conformity with EU law
- doctrines of direct effect : certain provisions may be relied upon before national courts to
create rights & obligations for individuals against a State / private actors
- doctrines of sincere cooperation : MS expected to ensure fulfilment of their obligations +
refrain from any measure which could jeopardise the attainment of the Union’s objectives
general principles of EU law = same legal value as treaties
Charter of Fundamental Rights of the EU = legal authority of Charter anchored in EU treaties
& same legal value
SECONDARY LAW (must be in accordance with primary law) = adopted based on EU Treaties
In external action = international agreements
In internal action = legislative acts (art 289(3) TFEU) & non-legislative acts of secondary law
TERTIARY LAW (must be in accordance with primary law) = adopted based on act of
secondary law = always non-legislative!!!!
In external action = tertiary law adopted based on international agreements
In internal action = delegated acts within the meaning of art 290 TFEU, implementing acts
within art 291 TFEU & other acts of tertiary law
External action = relationship between EU & third states or IO’s
Internal action = relationship between EU, its MS and / or other entities or individuals
within the jurisdiction of the MS
EU legal order does not exist in a vacuum g closely intertwines with national & international
legal orders, MS can still conclude international agreements, but must comply with EU
Treaties
Acts of secondary & tertiary law may take the form of legal acts defined in art 288 TFEU =
regulation, directive, decision & recommendations + opinions
, The principle of conferral = art 5(2) TEU g MS are the original source of authority, they
conferred competences on the EU
Legal basis :
Provision of EU law that enables EU organs to take action = ensures compliance with principle
of conferral g duty for EU legislator to expressly indicate legal basis of any act intended to
have legal effects
- identifies existence of EU competence
- defines the procedure to be used for the EU to exercise an existing competence
- specifies the form that EU intervention should take when EU organs exercise their
competences
centre of gravity test to find most important / specific legal basis
except for when legal bases are equally important g multiple legal bases
4 ‘speciallekes’ ;
art 114(1) TFEU = internal market = particularly dynamic legal basis = horizontal legal basis
g measures adopted on this legal basis must have as its object the improvement of the
conditions for the establishment and functioning of the internal market
implied powers = in certain circumstances the existence of powers to act is not expressly
stated in the relevant provision of EU law, may be implied therefrom = gap-filling function g
in the area of external relations!!!!!!!
art 352(1) TFEU = flexibility clause = default legal basis
g can only be triggered if anchorage of the power for the EU to act cannot be ensured by
another Treaty provision, even when impliedly (but number of safeguards)
delegation of powers = EU authority may decide to delegate powers to a private body under
specific conditions
after establishing that EU has competence to take action g WHICH COMPETENCE? = TFEU
o Exclusive competences = only Union may legislate & adopt legally binding acts
o Supporting, coordination or supplementary competences = EU intervention does not
supersede MS’ competences & any legally binding acts of the EU cannot lead to
harmonisation
o Shared competences = default category = allows for the two main actors to act, shared
between MS & EU g once EU has acted, MS cannot call into question what EU has done
after establishing that EU has competence to take action & finding out which type of
competence g EXERCISE OF EU COMPETENCE (REVIEW EXERCISE)
SUBSIDIARITY : only for non-exclusive competences
= art 5(3) TEU ; EU shall only act if & in so far objectives of proposed action cannot be
sufficiently achieved by MS + must be shown that result can better be achieved at EU level
review of compliance = delicate for CoJ g crucial role of national parliaments
national parliaments can send reasoned opinions (as to compliance with principle of
subsidiarity) within 8w following the transmission of the proposal for a legislative act
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