First class EU Law notes, last updated for Law exams at the University of Cambridge in 2019. These notes are concise & colourful. I have distilled the key principles for the main cases to make revision easier, especially for problem questions. The notes also cover academic commentary in each area. ...
• note very origins of European Unity can be traced back to 17C - William
HISTORY & BACKGROUND Penn called for Euro Parl!
i) DEVELOPMENT • Also pushed in 19C (Ger & Italy) - but more sinister
• European & Steel Community - 1951: first steps towards EU integration
• A shift after WW2 - most international orgs had been intergovernmental ii) KEY THEMES IN DEVELOPMENT
• ESSC was supranational (though limited scope) • Motivation behind integration & relative influence of MS & EU institutions
• Alternative, more radical proposals failed - Eu Defence Community etc - after (intergov or supranational?) Was peace & co-operation. Now? Economic
that, switch focus to economic integration prosperity?
• Balance between economic & social objectives originally focus = econ =
• European Economic Community (Fra, Ge, Ita, Belg, Ned, Lux) social aspect grown
• Single market project - Treaty of Rome • Now arguably political objectives
• Also signed up to Euratom Treaty • Relative importance of input & output legitimacy
• 1967 merged exec organs of ECSC, EEC & Euratom • Input: how fair/democratic EU dm process it
• Tension between inter-governmentalism & supranationalism • Division between MS & EU, voice of individuals etc
• Treaty called for QMV but States maintained unanimity -> empty chairs crisis • Output: EU proving its value by showing effective contribution of objectives
• 1973 first enlargement (inc. UK) which have public support
• 1974 European Council established - heads of govs - more intergovernmental • During development, politicians/govs not been good at explaining benefits
• but growing financial control & CJEU influence - more supranational of membership - easy scapegoat etc
• Single European Act 1986: increased political role & re-introduced QMV • but given original justification for EU (peace) no longer appropriate, Barnard
thus more supranational & Peers say should look to output legitimacy
• Euro Parl role transformed/extended & set 92 as deadline for single market • Generally Craig notes the powers of the EU not result of a ‘smash & grab’
• Created (what is now) Art 114 TFEU power adopt harmonisation leg. for IM by EU institutions - result of MS acting unanimously over 30y
• TEU signed at Masstrictht (92) - created pillar structure, renamed to ‘EC’ &
created citizenship iii) RECENT CHALLENGES
• Brexit: general trend been of expansion now complex withdrawal process/
• Pillars: communities (supernat), common foreign & security policy (CFSP) &
fear of triggering more withdrawals
justice & home affairs (HHA)
• Migration crisis: Africa & Middle East - putting strain on EU (esp. It/Greece)
• Latter = intergovernmental - structure designed to preserve state power
• EU’s asylum policy never designed to deal with such mass migration
• Amsterdam & Nice Treaties: preparing for enlargement, with HR issues • Attempts to create obligation accept quota of migrants but political will
• Laeken Declaration: gave approval to HR issues/other issues for reform lacking - danger MS will resort to unilateral measures in breach of EU law
• Charter of Rights: approved in 2000 • Financial Crisis/Euro Area Crisis:
• Constitutional Treaty: idea of 1 central doc, abolish pillars, consti language - • Sov debt crisis: States borrow to pay off debts, if MS appear weak, lending
agreed in 04 but had be ratified by all - Fra/Ned rejected thus failed! shrinks, so MS less able pay off debts/borrow more - vicious cycle - stability
• Lisbon Treaty: signed 07 - drew heavily on Consti Draft but softened it of Euro undermined
• Got rid of pillars (tho CFSP handled separately) & default = ‘community • Economic & Monetary Union design also problematic - separation of fiscal
method’ - almost entirely supranational (left to MS) & monetary policy (ECB)
• Re-named EC -> EU
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,EU NOTES
• MS don’t control monetary policy thus when over-borrowed little they could • Institutional perspective - need for more representative democracy - idea that
do there is a disconnect between citizens/institutions in dm proces - improving
• Lenders look at individual MS rather than Euro Area as whole this would mean greater role for Euro Parl & nat Parls
• ‘bail outs’ = temporary solution • Sociological perspective - idea that EU lacks a demos - lack of EU-wide citizen
• Going forward, need address asymmetry between £ & fiscal policy body with real interest in governance of whole EU, who participate/direct their
• Measures Six Pack, Two Pack & Euro Plus Pact basically designed increase co- claims to EU institutions - i.e there is no European civic identity
ordination & reduce imbalances between Euro Countries to strengthen • Concerns have been evident throughout CJEU case law
currency as whole & avoid certain states crashing • e.g Van Gend en Loos court relied on citizens participation through EP to
• Also greater fiscal discipline justify autonomy of EU legal order
• Largely in line with general changes post-financial crisis • That said, court’s recourse to democratic principle sparse/unpredictable
• but concerns about giving too much power to EU - surely MS needs control
fiscal policy! • 2 key arguments:
i) E.G MORAVSCKIK
• There is no democratic deficit at all coz EU not a state - thus its legitimacy
EU & DEMOCRACY
not dependant on democratic legitimacy - there are other sources of
• Art 10(1) TEU functioning of EU founded on representative democracy legitimacy
• i.e decision should be taken by elected officials with a democratic mandate • Output & nat execs sitting on Council to their nat constituencies (indirect
• All MS = representative democracies legitimacy)
• Art 10(2) Euro Parl directly elected, Council = MS ministers, Euro Council = • See EU as an agency - delegate responsibilities for them to get done
heads of state/gov ii) E.G HALBERSTAM
• Commissioners ‘appointed’ - historically ‘by common accord’ • That democratic legitimacy necessary but accept won’t be in same form as at
• Euro council nominates pres & EP elects by majority national level - will always lack rep democracy
• but commissioners appointed by agreement between Pres/MS - Euro Council • he says focus on other conceptions of democracy - deliberative/participative
QMV vote & EP must approve - in reality, little debate other than Pres • Potential for this - participation outside national democracies
• Not v transparent - Commissioners often former gov ministers etc • but would depend on engagement of demos to succeed - which seems
• Treaties provide that MS don’t have veto over adoption of EU measures unlikely atm
• Seen as problem by those who believe only nat politicians democratic • My opinion: other conceptions don’t necessarily appeal to citizen’s
• Often a tension between democracy & effectiveness within EU instis - Craig understanding of government
• Ofc inevitably in any system of rep democracy, larger & more diverse the • MS have shared these concerns - manifested during Treaty reform - keen
electorate, the more likely will be conflict of views thus harder please everyone ensure proper app of subsidiarity etc
• These concerns go on despite EP being directly elected since 79! Largely
• Comm = executive/admin; Council & Parl = bicameral legislature about perception
• In many ways EU similar to federal state system - though law mostly • European election have low turnouts
administered by MS which most federal states don’t do (e.g USA) - but Ge does • Perception EP has no real power, lack of understanding of EU political
system, remoteness of Parl, general reduced interest in politics
• One of main criticisms democratic deficit - prominent part of Brexit debate • Extension of QMV voting may have contributed - more supranational ->
• Idea that it lacks features of a health democracy - exercise of power requires more tension
democratic legitimacy
• but Lisbon Treaty inserted provisions on democratic principles into TEU
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,EU NOTES
• Rights of citizens participate in EU democracy formally declared & provision • Turkey granted candidate status in 1997 & accession negotiations began 2005
on voting rights for non-national EU citizens to vote in local & EP elections but currently stalled
• & note European Citizens initiative
• Art 12 lists ways which nat parls contribute to functioning of EU (descriptive) • Art 49 TEU governs accession process now
• note Protocol on App of Subsidiarity & Prop (yellow card etc) improves dem. • State applicant must respect Art 2 values & be committed to promoting - EP
legitimacy & nat Parls notified of app
• Council must consult Comm & EP must give consent (by majority vote)
• note Legal characterisation of EU - cannot be characterised as a State (though
• Then Council must approve unanimously
perhaps increasingly so!?) or simply an intl organisation
• Must have regard to Euro Council’s eligibility criteria (i.e Copenhagen)
• Dashwood - is sui generis - unlike anything before etc - an ongoing
• Conditions of admission then go into accession treaty which all MS must
experiment
ratify (within consti requirements)
• note Craig points out EU has chosen keep no. commissioners equal to no. MS • Art 2 TEU values = human dignity, freedom, democracy, equality, RoL, HRs,
• Thus prioritising legitimacy over efficiency - says part of general trend minorities’ rights - pluralism, non-discrim, tolerance, justice, solidarity, equality
between sexes
ACCESSION & WITHDRAWAL • Veto Opportunities in Art 49 Council unanimity, domestic requirements for
i) ACCESSION TO THE EU ratification e.g French consti requires referendum of accession & German
• Original Communities just 6 states Bundastag must give opinion on it
• Accession procedure required Commission approval & unanimity from • EUA 11 means UK must have referendum to ratify accession
Council & Act of Accession which needed be ratified by all existing MS (in • note accession agreements can be used to amend Treaties e.g Croatian
accordance with consti requirements) accession
• France twice rejected UK attempts join EEC in 60s but eventually allowed - • Validity cannot be questioned by ECJ coz primary law - LAISA v Council
increase to 9
• Treaty of Accession signed 1972 & in force 1973 - preamble stated aim of ii) SUSPENSION
‘ever closer union’ • With view to upholding Art 2 TEU values Art 7 TEU creates mechanism
• UK Parl passed ECA 72 allowing domestic legal effect - no referendum whereby certain MS rights may be suspended where there’s a serious &
• but 1975, referendum held on continuing membership persistent breach of Art 2
• Successive enlargement -> 28 MS • Proposal by 1/3 MS or by Comm & consent of EP -> Euro Council may
• note biggest enlargement 2003 - much of Central/Eastern Europe determine existence of such a breach - may decide suspend voting rights etc
(immigration implications) - latest addition Croatia (2012) • Seen as a ‘nuclear option’ - procedural rules also make it difficult
• These enlargements have also seen development/clarifications of accession • Comm has launched infringement proceedings against Poland - Art 7 remains
conditions etc an option
• Copenhagen Criteria 93 conditions for accession:
• Stability of institutions guaranteeing democracy, rule of law, human rights & iii) WITHDRAWAL/BREXIT
• Prior to Lisbon much debate about withdrawal - Vienna Convention on Law
protection minorities
of Treaties - general position in public international law - only withdraw in
• Functioning market econ & ability cope with competition within EU
exceptional circs
• Ability to take on membership obligations
• Some doubted whether EU fell under this at all
• Once meet 1st conditions allows consider state -> candidate status - allows
• Art 50 TEU added at Lisbon - provides for withdrawal
pre-accession process to determine if ready for membership (Euro Council
• Art 50:
considers)
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, EU NOTES
1) Any MS may decide withdraw from EU in accordance with its own • Notes the intention point - neither definitive nor irrevocable
constitutional requirements • Says can be revoked unilaterally & right to do so still exists if 2y period
2) Must notify Euro Council of intention withdraw - EU shall negotiate & extended
conclude on agreement with that MS, setting out arrangements for • Some procedural rules apply as with initial notification - just need notify in
withdrawal, taking account of framework for future r/s with EU accordance with consti requirements
• Agreement shall be negotiated in accordance with Art 218(3) TFEU • Stressed aim of ‘ever closer EU’, citizenship & values of liberty/democracy -
• Council must conclude it by QMV, with consent of EP MS cannot be forced withdraw against its will
3) Treaties shall cease apply from date of entry into force of Withdrawal • Also noted Vienna Convention which permits renovation - relevant coz
Agreement or, failing that, 2y after notification unless Euro Council influenced Art 50 drafting
unanimously & MS decide extend • Says notification to Euro Council must be unequivocal & unconditional
4) Member of Euro Council/Council from withdrawing MS shall not • but didn’t address ‘good faith’ point - AG Opinion said this doesn’t stop
participate in discussions/decisions concerning it existence fo the right and ‘abuse of rights’ EU principle could be applied to
5) If ask to re-join must go through Art 49 process ensure revocation not employed abusively
• Peers says this suggests revocation possible on the easiest of terms - he
• Consti requirements in UK = EU Referendum Act 2015 & Miller SC thinks a U-turn unlikely though
settled that executive couldn’t act alone so had get Parl approval - did so & • Note Schindler CJEU confirmed UK consti arrangements not for EU to
notified March 2017 under EU (Notification of Withdrawal) Act 2017 judge but proviso that could ask CJEU if particular element complies with
• Form of notification unclear - Hillion says must just be unequivocal & - EU law
Craig says not limitless time period - no negotiations until notified
• Can notification be withdrawn? iv) WITHDRAWAL NEGOTIATIONS
• In Miller both sides agreed that notification was irrevocable, though SC took • Art 50 takes account of framework for future relationship but withdrawal
no express position on this agreement itself separate
• Ofc gov politically motivated - would have been disastrous early on to say • Art 50 itself not the legal basis for future r.s agreement - that depends on type
revocable at any tine of agreement desired
• But Craig says would seem absurd that a previous gov’s notification couldn’t • Art 207 trade agreement (e.g Canada)
be reversed by a new gov where elated on that promise • Art 217 association agreement (e.g Ukraine)
• Peers argues integrationist ethos could be interpreted as meaning MS should • Withdrawal agreement itself negotiated under Art 218(3) - Euro Council
be able change mind must agree guidelines but Council authorises negotiations & nominated EU
• Craig also points to Art 50(1) mention of ‘intention’ - surely intention can negotiator (Barnier)
change • Note important distinction with Accession agreements - validity of accession
• But would be untenable if MS could keep changing its mind but could deal cannot be challenged coz primary law but Art 218(1) makes explicitly clear
with that via interpretation that agreement under this provision may be before CJEU for its opinion!
• Craig also says from teleological perspective, disruption to EU of invoking Thus CJEU may have to give Opinion of agreement
Art 50 & withdrawing outweighed considerably by MS deciding to remain, • e.g did so under 218 in regard to EE Agreement 91
having realised benefit of membership • Would this stop the clock? If not, no deal possibility
• But would revocation need consent from EU27? Would want ensure not just • Note there is a draft Withdrawal agreement & Political Declaration as to
being used as a way to stop the clock - but given MS can act unilaterally to framework for future relationship
exercise withdraw, perhaps no consent needed • Consensus in literature is that there will be 2 separate agreements - e.g De
• Wightman (CJEU) confirms that Art 50 can be revoked Witte
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