Samenvatting
Summary European Law Lectures
- Instelling
- Rijksuniversiteit Groningen (RuG)
Thorough and well-organised lecture notes for the course European Union Law.
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Voorbeeld van de inhoud
Week 1A New Legal Order
THE SCHUMAN DECLARATION
9th May 1950 French Foreign Minister Schuman read his declaration
Europe has to achieve peace
Economies have been destroyedindividuals are fleeing to nations afar
The future of Europe was not clear
Text of Schuman’s declaration:
1.) Pooling: We must build a new Europe by toning down the sovereignty of the 6 original EU MSsPooling of
resources would entangle economies and make wars impossible
2.) Colonialism: Perpetuate the colonial bondagerising involvement of European nations in the colonial empire
Ambitions for the Euro-African internal market
Since decolonization, the EU territory has shrank first and then it has grown
WHY THE EU IS DIFFERENT
Ideas of pooling and integration in Europe were not new;
Historic examples of both Napoleon and the Roman empire
The EU is different because you don’t destroy the individual parts but create a supranational level
Two possible types of cooperation/integration:
(1) International/intergovernmentalnations coming together at the same table to sort out differenceseverybody can
veto and walk out, everyone holds the final say
(2) Supranationalsovereignty is pooled to create supranational institutions that issue binding law everybody is bound
by the decision
COUNT KALERGI V JEAN MONNET
Following the world wars many individuals devised plans for European cooperation
Count KalergiAfter WW1proposed the international mode of cooperation for which couldn’t bind the state
Jean MonnetAfter WW2Proposed a supranational mode of cooperation for Europe which could bind the state
Jean Monnet is the actual father of the EU, he managed to convince the leaders of the 6 original states to limit their sovereignty
POOLING SOVEREIGNTY
Pooling sovereignty means that it is delegated from individual nations and supervised under a supranational authority
CURTAILING ECONOMIC & POLITICAL SOVERIGNTY
Economically: The creation of the internal market
You may freely do business across the continenttools to protect your own countries market will be illegal
under supranational law
Politically: You cannot mistreat the citizens of other participants of the other states
Being a Frenchmen is not a requirement to participate in the economic development of France
A new legal political reality is created
Europe is for Europeans, unlike the USA which is for American only
THE COAL AND STEEL COMMUNITY
Jean Monnet uses the two most common materials used to wage war as the starting point for this pooling of resources
Coal is your main supply of daily energy and steel is used in war armaments
Coal and steel would be regulated under a supranational authority, known as the high authority and Monnet would be the
president
This framework was eventually spread to other parts of the economies of the 6 European nations
THE HOPE FOR A EUROPEAN NUCLEAR FORCE
EURATOM is eventually introduced in 1957 alongside the EEC otherwise known as the Maastricht treatynuclear
energy is put under supranational control
This community needs to be different because in practise nuclear sovereignty resides in America not among the
European nations
, There was a hope that Europe would become independent regarding nuclear energy and become a third superpower
alongside the USA and Russia
Europe could not compete in reality
DEVELOPMENT OF THE EU TREATIES
We have a distinction between founding treaties and amending treaties
The founding treaties create a new organization
EEC is a founding treaty that still exists today (Rome)TFEU
EC is a founding treaty (Maastricht) but it draws inspiration from the ECSCTEU
While the founding treaties keep on existing, they are being amended
CURRENT TREATIES (AFTER LISBON)
Treaty of European Union (TEU)
Contains the constitutional rules and CFSP
Treaty on the functioning of the European Union
Makes the constitutional rules work
EU charter of fundamental rights
Supposed to have the same legal value as the TEU and TFEU
WHAT ELSE IS EU LAW
This is all supranational law
(1) Primary law: Treaties & unwritten general principles of law
(2) Secondary law
All made in accordance with procedures in primary law on the foundation of a legal basis found in the treaties
(3) Case law of the Court of Justice
Rules on interpretation of EU lawit cannot legislate
The CJEU does not adapt the numbers in the case law to the new numbering systemit always uses the
originals from the EEC treaty
FALIURES & SUCESSES
The EU has historically found its political endeavours harder to achieve
Two failed treaties of the 1950s the EDC and EPC prove this
The EEC only passed through in 1957 because it didn’t seem to encroach as much on the political aspects of the
community
It was always easier to sell economic prosperity vis a vis union policy than political ones
Political integration dragged behind economic integration
, It is hard to have a successful economic integration without a political one
NATURE OF EU LAW
1.) International or constitutional law (national law)?
Lecturers opinion: Supranational integration does nothing but simulate national institutional thinking as adopted at the
national level, it simply transposes it to the level of international relations
It is rooted in international law but can directly provide people with rights
Distinction between:
International lawabout statesparties that conclude a treaty are bound
Constitutional lawabout peopleeffects the lives of the people and those within the jurisdiction
The nature of the actor that is affected by these two types of law is different
Intergovernmental integrationstates at the tablestates are bound
Supranational integrationstates are at the tablestates conclude a treaty but the law works differently because it
directly affects the lives of all the citizens in the territory of the states and anyone in that jurisdiction
Supranational law is internationally made, but it doesn’t work as international law but constitutional law in states
Eg when Italy signs the EEC all Italians are affected
Therefore, all citizens within these states must be able to invoke supranational law and have their right enforced in a
national court
2.) Supremacy v direct effect
Neither are explicitly mentioned in the treaties but are still fundamental principles of EU law
Two sides of the same coin, they go hand in hand
(1) Direct effect (van gend en loos)
Constitutional law would be presumed to have direct effect because it created rights for ussupranational EU law also
has direct effect
(2) Supremacy (Costa v ENEL)
Means that EU law enjoys precedence vis a vis all national law in all areas where it is competent to act no matter when in
time this law was passed
Unlike with international law, states cannot decide on the application of EU law in their national systemslex posterior
cannot be applied as these are different legal orders
There is no option to be monist or dualist anymore
Limit to supremacy: no sovereignty of the people in which they can tap to regulate anything, sovereignty is conferred
upon them in the treaties, any power not transferred remains with the MSs.
Any issue on which the powers have been delegated is an area where EU law can be supreme.
If there has been no delegation then it is impossible to speak of supremacy
Why did the question of supremacy appear in Costa & not VGEL?
In a monist state such as the Netherlands, international law enters the system automatically as international law and
so the hierarchy is clear between international and national law
In a dualist state, such as Italy, international law is transposed into national law and so the application of a rule such
as lex posterior could discard union law
3.) ‘Legal heritage’ of individuals (van Gend en Loos)
Means any right created at a supranational level above your state is a right that belongs to you as an individual
4.) A system of values 2&3 TEU
-Debate about whether these are principles or laws
-Every legal system in the world has a proclamation of this kind
-All EU law has to comply with these values
-Values are not in the original treatiestoo political
o Human dignity
o Freedom
o Democracy
o Equality
o Rule of law
MSs and the Council of Europe usually protect fundamental rightsnow the EU is obliged to do the same under Article
2
, First case on rights= Storkshameful caseEU was not concerned with rights/violations of rightsrefused to look at
rights argumentsMSs fought back
MSs did not like the fact that the EU saw its competences as limited to economic policies & not rights
There is a long line of case law where the CJEU starts to develop unwritten principles of law regarding fundamental
rights
During the so -long cases Germany refused to accept CJEU rulings until the court started to take into account
fundamental rights
The EU is now based on rights and the rule of law
Equal pay for men and women
This became a central focus in the fight for fundamental rights across Europe. Although this would seem a political request,
France, the only nation that had introduced such a measure won with an economic argumentFrance was spending more
money on workers and this was affecting the common market, therefore this right must be protected in all MSs.
The Kadi case summary
Facts: Mr Kadi is on a terrorist list devised by the UN security council but the UN never told him the reason for thisall his
assets were frozen
Result: Although the EU is also bound by decisions of the UN under international law, they could not endorse this decision
5.) Evolution for the reasons for the EU to exist: messianism?
The EU is the saviourit stands to represent its own success
6.) Federal features/expectations
Every time that something goes well at an EU level it is a result of the work of the MSs
70% of all laws that govern us come from the EU
Now brits will have to build a legal system from scratch
The EU is a scapegoat for when things go wrong
As more rights have entered the legal system, expectations have grown
The cases of Poland and Hungary
Over the years we have come to see that these fundamental values found in Article 2 do not have the same legal value
as the body of EU lawenforcement mechanisms do not apply in the same way to Article 2 values. There is no direct
correlation between the rule of law/democracy and economic prosperity which is why they can still be part of the EU,
this is the tragedy of the EU. The polish economy is the best in the EU after Malta!
DIRECT EFFECT: PRIMARY EU LAW
Individuals can go before the national courts to have their rights of EU origin protectedpowerful enforcement
mechanism of EU law
The most powerful guardians of rights are the citizens themselvesArticle 267 TFEUnational courts can ask questions
on the interpretation of EU lawthis preliminary procedure article was used as a justification for the intention of the
MSs to create direct effect of provisionsthis is as much as we have of direct effect in the treaties
Resoning in Van Gend: three levels
-Looking at the spirit, general scheme & wording
Test: clear / precise / unconditional
-Need to look that it is a povision within the scope of EU law, having regard to the principle of conferral
-After VGEL it entered secondary laws
Limits
-The provision cannot dependent on intervention by national or EU authorities
Functioning in practice?
-Crucial role for the national courts and other institutions to playcannot function without
-EU law cannot function without the mutual trust
FINDING PRINCIPLES IN EU LAW
, Principles of EU law such as supremacy & direct effect are extracted from implications in the treaties themselves
Some of them, such as rule of law, are eventually codified, others still are not but are considered primary EU law
A combination of explicit, implicit, written & unwritten principles
Teleological interpretation is the most common in EU law, this is why national judges need help with EU lawthey use
different methods of interpretation at a national level
DIRECT EFFECT VS DIRECT APPLICABILITY
Direct Applicability: transposition or further implementation is unnecessary
Direct Effect: Individuals can rely on a provision of Community law before national courts and administrations
Not all directly applicable instruments are directly effectiveclear, precise & unconditional
DIRECT EFFECT: SECONDARY EU LAW
The principle of direct effect had to be spread to secondary EU law
1.Regulations – Case 93/71 Leonesio; Muñoz
2.Decisions - Case 9/70 Grad
3.Directives – general rule: no direct applicability: the result is key
DIRECT EFFECT OF SECONDARY EU LAW: FOCUS ON DIRECTIVES
This is very important to ensure that MSs are implementing EU law
For all secondary EU law, the VGEL criteria must first be satisfied
Sufficiently clear, precise & unconditional
Directives—
Default position: no direct effectthey are for the states not individuals
In case of incorrect (or lacking) transposition and after the implementation deadline: Directly effective under certain conditions
Case 41/74 Van Duyn; Case 152/84 Marshall; Case 14/83 Von Colson and Kamann
1.) Vertical Direct effect – against the State & other public sector organs / bodies / administrations
2.) Horizontal Direct effect [prohibited] – private party against private party
Case 152/84 Marshall; Case C-91/92 Facinni Dori
3.) Reverse vertical direct effect [prohibited] – public authority against a private party
Case 80/86 Kolpinghuis
4.) Indirect Direct effect – private party against private party
Case 14/83 Von Colson and Kamann / Case C-106/89 Marleasing [courts are equally bound by the expectation
of result]
You find any law in that state which you can read EU law into
Indirect direct effect is a way around the prohibition of horizontal direct effect
Limitations:
1.) No contra legimyou cannot interpret against the law
2.) Legal certaintyyou cannot read into a law that does exist
5.) Triangular situations: it is natural that by going against public authority you can affect other private parties
There is rarely a neat vertical situation
LOYALTY 4(3): A NECESSARY PRECONDITION
Duty not help and not to hinderMSs cannot undermine the functioning of EU law in areas of MS competence
Even in areas where the MSs have the competence, the fact that they cannot violate EU law means that the EU still exercises
control over these areas
, EU law compliance
LOYALTY AND THE SCOPE OF ACQUIS
Member states failing to comply with the lawacquais=the whole body of EU law
Member states failing the comply with the valuesArticle 2 TEU
Hungary & Poland
Allot of it is regulated by national competences eg appointment of judges
There is a presumption of compliance by MSs with EU law
THE ENFORCEMENT OF LAW VS THE ENFORCEMENT OF VALUES
Its law which is binding does not actually fully incorporate the most fundamental values and principles and does not
allow them to be enforced
The law of the internal market union is not designed to achieve these principles
Regarding values article 7 is useful for enforcement
1.) Allows us to sanction MSs who threaten the values7(1)
2.) or have violated them 7(2)
3.) Article 7(3) allows for sanctions
THE DUTY OF SINCERE MUTUAL COOPERATION 4(3) TFEU
Duty to help and not to hinder
One of the most popular provisions in the case law of the court of justice
The majority of cases in substance and in procedure revolve around the competence split of the MS and the supranational
level
Everybody is bound including the institutions of the EU and institutions of the MS
ENFORCEMENT OF VALUES: ARTICLE 7TEU
Is about the enforcement of values not about the acquis itself
EU law can be enforced in other ways
The activation of Article 7 does not mean that you cannot use other enforcement articles of the TFEU
The idea behind Article 7 is that it is a political enforcement procedure that deals with murky law
Democracy and human rights where no conferral has occurred from MSs to EU
The EU cannot intervene with the institutional design of the MSs, but if by design it fails to meet the condition of article
7TEU then the EU can intervene
For example where the courts are in violation of trias politica when judges are not independent, for
example where polish courts are trying to rule on the legality of Article 267TFEU this is not allowed
and is against the principles which should be observed in Article 7TEU
Article 7TEU appears before all the central EU countries joined the union, political agreement could be found by MSs
using Article 7TEU even though the EU does not have a specific competence int his area
Gives a voice to the principle of loyalty in article 4(3) TEU
THE SCOPE OF THE ARTICLE
Initially it was only possible to use Article 7TEU where an incident had already taken place
A violation has to have occurred to the principles of Article 2TEU
Where legally speaking the EU cannot do anything, they can politically condemn the action of MS, there is no need for a
legal basis because there is no legal action being taken
The modern conception of article 7TEU purports to have learned from past mistakes and now takes the shape of
introducing the procedure of a threat into the article
The EU can react to the threat of violations of principles in a legal-political way
THE ENFORCEMENT OF THE LAW
1.) Private enforcement (for individuals in individual cases)National court enforcing EU lawArticle 19TEU
-When you think your courts have failed to take EU law into account
Francovich, Kobler
-The difference between these two is whilst the CJEU strives to formulate principles, these don’t necessarily help
individuals as they can be used against them, it is national courts ultimately that apply EU law
, 2.) Public enforcement (for everyone)The EU institutions enforcing EU law
-All the individuals and companies in the EU directly claiming their rights in MSs
-Is about the commission going after the MS which is suspected of violating the law
By the commission: 258TFEU
By the Member state: 259TFEU
Sanctions: 260TFEU
Article 258TFEU
Discretion of the commission
They are guided by the overwhelming climate in all the MSs, they have to take into account all the private parties that
suffer as a result of the violation
Eg when there is no violation anymore this procedure may be used to make it easier for individuals to
get back compensation for what they lost
o The goal of EU commission is not to attain justice in every concrete case and give concrete
answers to these scenarios, but to foster a climate of compliance with EU lawcases of the
commission are more a signal to others
Informal notice
Formal notice
Reasoned opinion
Action in front of the court (only 7% of cases end up in the court)
-burden of proof
-silly defences not allowed
-Irrespective of whether the breach has stopped
-Cumulation of breaches (C-494/01 Irish waste)
A more complex understanding of compliance should be a possibility
Article 259TFEU
A rarely used provision: Outrageous cases
Starts as 258TFEU
Member states not bound by the commissions approach
MSs are co-responsible for atmosphere of compliance with EU law
If the commission agrees with the arguments of the MS bringing the claim then it becomes a 258TFEU action
To use Article 259TFEU therefore you need to have failed to have convinced the commission that the MS has failed to
fulfil its obligations under the treaty.
WHAT CASES FALL UNDER ARTICLE 259TFEU
Spain v UK
-UK claims that Gibraltar is part of UK
-UK established elections in Gibraltar
-Spain argued that this was illegal because Gibraltar is Spains
-The commission dismissed thisthere is no doubt that Gibralter is an autonomous colony of the UK
-Spain brings case to the CJEUCJEU dismisses
Article 260TFEU
New procedure
Activated from an outcome of 258TFEU/259TFEU
,Week 2
Decision-making in the European Union
This Lecture:
(1) A brief history of early everything
(2) Key principles underpinning the legislative process
Institutional balance
Competences
Legal Basis
Subsidiarity
Proportionality
Role of the institutions
Commission
Council
Parliament
(3) The legislative process works
A BRIEF HISTORY OF NEARLY EVERYTHING
Getting acquainted with why the decision-making process is so different than national & international
From the Schuman Declaration to a nearly federal Europe
o A long history of failures…..
A.) Continual war since 1648
Europe has seen continuous war since the beginning of the state system (Westphalia 1648)
B.) Power of politics of the continental system
Up until the second world war the great powers decided what would happen in Europe & if they didn’t agree the other would
invade
C.) Democratic failures of 1848
Revolutions of 1848, series of republican revolts against European monarchies,
D.) Failure of the Great powers in 1918
October 1918 witnessed the collapse of the German and Austro-Hungarian armies, both greatly affected by war-weariness
and starvation. The two Central European Great Powers suffered defeat.
E.) Two power system after WW11
Took two world wars to entrench democratic institutions & for Europe to be done with fighting
International Cooperation pre-ECSC
There had been attempts at formalising European cooperation pre ECSC
(1) Concert of Europefailed
-Real Politikpolitics based on facts rather than ideologies
-Highly undemocratic
-Built on balancing tension/powersno predominant force creates peace
(2) League of Nationsfailed
-More democracy
-However, no real commitment on behalf of members
-Very western in an increasingly globalising worldhighly colonial in nature
-Inherent conflict
No international success?
Not true, we are really good at coming together for practical purposes to solve annoyances!
o Organizations that fulfilled practical purposes were successfuleconomic damages would ensue if these cooperation’s
weren’t established
These were needed to make the world go around
1.) International Union of Postal Servicefounded in 1918still going
2.) International Commission for the Navigation of the Rhine1815still going
3.) The Commission on the Danube1848still going
, The Age-Old Problem
Example of the Ex-boyfriendWhen you are together things are mind-blowing, however when you get into a fight
Poland gets invadedThis is the same with nations. However, you have a son that is willing to give you money if you
make it work eg make an alliance work….
This is basically the Marshall Plan after WW2money given to Europe to recover it after WW2creation of a string
trading partner
American Committee on United Europe
Similar goals
The Project for the new German Constitution
These organizations get together to form solutions for Europe
Result: Functional spill over theory
Back to the example of the ex: Monnet realises that there is ‘too much hatred for the ex’s to get back together right now’,
however, baby steps can be taken. The functional committees have worked up to now so why not try a new version of this.
European Coal and Steel Community
o 1950Germany wants to be re-emitted back into the human raceEuropean Coal and Steel communityvery
functional plancontrol over militarisationcoal and steel are the two most important elements of any economy at the
timecreate dependence on each other.
Trading countries hardly ever engage in war together
o Eventually leads the EU to competence in many areasif we are harmonizing the Coal and Steel we need to harmonize
transport and then workers etc….
Highly Technocratic
The whole EU system is still in principle very technocraticwell-functioning highly educated civil servant system
devoid of political notionpolitics is left at the door, this culture remains.
Institutions are highly technocratic
-High authoritycommission nowadays
-Special council of ministerscouncil of ministers
-Common assemblyEP
-Court of justice
-Consultative committee
All the institutions were there in 1950 in their basic form
Fighting ensues
-Common Assembly is not a democratic parliament
Every MS chose a number of state officials from their normal state assembly and sends them to Brussels
-What is the role of the court?
Heavy debate as to the role of the court, a technocratic institution should not need a courtpolitics should be
involved
-When does the technocratic system become political?
Everything becomes political in the endeconomic is intrinsically linked to politics
-Leads to the development of the system the EU has today;
o Competences
o Legal bases
o Institutional balance
KEY PRINCIPLES UNDERPINNING THE LEGISLATIVE PROCESS
Competences
VGEL: ‘States have limited their sovereign rights within limited fieldsMSs have given competences to the
union.’The EU can only legislate where the MSs have transferred this possibility.
-Competences mean that the EU can legislate within the borders of MSs
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 can legislate
o These were competences of the national government before the EU they are harmonized to avoid conflict
Eg internal market, environment
3.) Complementary competences—
Article 2(5) TFEUGeneral description
Article 6 TFEUActual competence
o These only supports, coordinate and supplement the actions of MSsmember states appreciate the EUs financial aid in
these areas
o The EU may not harmonize national law
Cannot alter existing national law
o These are still legally binding acts
Eg public health, tourism, education
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
o Biggest group=shared competences
>Internal market is the big one, this is where the problems begin….
o Article 2(2) TFEUIn principle the MS is allowed to adopt any legislation it wants to unless the EU has decided that it
has legislated
o When the EU and its member states share a competence, the member state loses its 'competence' (power to take
decisions) when the EU decides to regulate. So, EU legislation does not only replace the content of a national law, it
also removes the national right to legislate in the covered area
Eg in principle every MS can make their own legislation on gambling without infringing on EU law. This could
include age limits, licenses etc. If, however, the EU decides that the gambling market is so big that it is leading
to losing of money and therefore we need to harmonize and set minimum levels, then the competence is taken
and MSs, this means the MSs cannot legislate independently, they can only legislate in compliance with EU law.
o The fear is that the EU can use shared competences to regulate everything and leave little power left to national
legislators, especially with the internal market, but this is not the case
Competence v legal basis
Competencethe EU is allowed to legislate in the following areasmuch broader
MSs have limited their sovereignty in these areas
Legal basisif the EU chooses to legislate, it should follow these stepsniche policy areas
You have the competence, but this is the method of acting on the legal basis
-Competences try to balance interests of MS and the EU
A legal basis is even further balancing…
Externally: What role the MS plays and what role the EU plays in process
Internally: it indicates the role of the institutions
NB: It’s not always true that the council acts on behalf of the MS, because they have to agree with 27 others when at the
Brussels level, individual MSs often have a different say to the entire institution of the European Council
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