Inhoud
Week 6: What is EU law and who is bound by it? Subjects and sources.................................2
Week 7: Enforcement and effectiveness...............................................................................19
Week 8: Internal Market, Free Movement of goods...............................................................41
Additional week 6 – Direct Effect and Supremacy.................................................................61
Additional week 7 – Who is bound by EU law, Subjects and sources....................................67
Additional week 8 – Internal market, Free movement of goods.............................................72
Additional week 9 - Brexit......................................................................................................80
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,Samenvatting EU law
Week 6: What is EU law and who is bound by it? Subjects and sources
2 treaties:
- TFEU (was called the EC Treaty)
You find provisions about free movement of goods etc.
- TEU (was called Maastricht Treaty)
Contains provisions that are of a higher level of abstraction.
You find principles, stuff that is outside the sphere of the internal market etc.
For example: art. 2 TEU: the values on which the EU is founded.
Those treaties are framework treaties (kaderwetgeving).
- If you don’t want to change the treaty every time something new comes along, you
need to come up which language that is flexible.
- It also means that interpretation of the treaty gives much more freedom for the Court.
IMPORTANT!!!!!!!!!!!
In case of a clash between national and EU law.
EU law ALWAYS wins!
Sui generis
= enige in zijn soort.
The EU is a sui generis autonomous legal order.
Elements that make the EU powerful and unique
- States sitting together in 1952, 1957 etc.
They said; I am going to give some of my sovereignty, some of my power to you (EU)
and it is yours forever.
That is a big thing, giving power away.
- Legal personality
It can do the stuff that you and I can also do.
We can buy property, we got responsible if we mess things up etc.
- Independent institutions, that are not composed(=samengesteld) of member
states of agencies of member states.
The institutions have just ONE INTEREST in mind: the interest of Europe.
For example a Dutch commissioner in the commission.
This Dutch commissioner will no longer thing hang on what is good for the
Netherlands. He or she will thing what is good for Europe and what is good for
Europe depends on the treaties.
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, - They can take decisions and they are unique
If you sit together with 28 member states and if there is a majority then the minority
will be outvoted.
That can include at least one big member state.
It is possible for Germany to not want something, and it still happens because the
other 27 member states say this is the way we’re going.
- Unique sources
The EU can adopt regulation.
They make laws and those laws have different names.
Like the regulation.
So these guys sit together and decide let’s do this and make a regulation that is
active in the Netherland, without the Netherlands being involved.
- If you join the EU you get the CJEU in the package.
Their jurisdiction is compulsory (=verplicht).
You can’t say I play the game but I don’t want the arbiter.
- The CJEU sticks more to the meaning of the Words and intentions of the
parties
- Within the EU you as citizen have rights
Not thru the Dutch legislator or government BUT thru the EU legislator.
If there is a EU law men and women should be paid equally for equal work.
And the Dutch government says that is a bad idea.
What happens then if they refuse?
You can go to the court directly and say im not waiting for the national law, im just
taking the EU law on my hands. And you will get your right!
The EU and the Rule of law (=rechtsstaat)
Different relations:
o EU <--> Member States
o Member States <--> Member States
o EU <--> Citizens
o EU <--> EU (institutions)
The EU is governed by the rule of law.
MEANING: lawyers can go to the court and say: EU, what you have done here is illegal and
must be stopped or I want compensation.
The EU is bound by the law. It is not some super power that can do whatever it wants
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,Art. 13 TEU: Union institutions
- The European Parliament
- The European Council
- The Council of Ministers
- The European Commission
- The Court of Justice of the European Union
- The European Central Bank
- The Court of Auditors
Important for citizens: legislation function.
Legislators in the EU:
- The European Parliament
- The Council of Ministers
The European Parliament (legislative)
- 750 representatives of EU citizens, political groupings Directly elected assemble by
citizens.
- Legislature: together with the Council of Ministers = ordinary legislative procedure
(=gewone wetgevingsprocedure)
Drafts budget (begroting) also together with the Council of Ministers.
- Democratic control of all the EU activities
They control the executive, which is the Commission.
- Can seize the Court of Justice
They can go to the Court of Justice, to complain about breaches of the EU law.
The Council of Ministers (legislative)
- One specialized minister per Member state
Like a subject about the environment = 28 minister specialized in the environment
and so further.
Art. 16.2 TEU: pursues national interest.
- Rotating president
You have a president that will be for 6 months the boss of the Council of Ministers.
- Executes foreign policy (=buitenlands beleid uitvoeren)
- Decisive role in CFSP
CFSP = Common Foreign and Security Policy
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,The European Commission (executive)
- 28 independent members
- Right of initiative (art. 17.2 TEU)
They can propose legislation.
- Agenda-setter
To propose legislation they set the agenda.
- Watchdog: supervision of Member States to ensure application of the Treaties
Own police force.
The Commission takes the state to court.
**The commission has an almost monopoly when we talk about legislation. They set the
agenda.
If you set the agenda you have a lot of power.
They decide if an environment law should be proposed (voorstellen),
What should be in that environment law?
They have to take into account the political realities that exist in the EU parliament and the
council of ministers. So they have to propose something with a chance of succeeding.
The European Council
- Exercises political leadership
Takes the lead of the EU.
- Heads of the State and Government and president of the Commission
You find a prime minister there. Merkel, Macron, Rutte etc.
- Permanent President since Lisbon
- Crucial role in cases when Treaty is to be changed
- NOT independent
**if they want to do something big, that is when the EU Council wil involve.
Like Brexit, new treaty etc.
This is where the bosses of the bosses meet.
The Court of Justice of the European Union (CJEU)
Constitutes the judicial branch of the EU.
Interpret en applies the law.
Consists of:
- The European Court of Justice (ECJ)
+ advocate generals that advise the ECJ.
- General Court
Task of the court:
- Ensure respect in the interpretation, and application of the EU law.
Court is seated in Luxembourg.
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,Collegial judgements
- You won’t have 1 judge saying, that he was against the judgement. You get one
judgement.
Other important institutions:
High Representative for Foreign Affairs
European Central Bank
Court of Auditors > check against corruption
Ombudsman
Agencies > medical, drugs, property etc.
EcoSoc
Committee of the Regions
Primary EU law
Made by the Member States directly.
Treaties are the starting point for the EU law.
Primary sources of EU law:
- Treaties
o TEU (Maastricht Treaty)
o TFEU
- Protocols of the treaties
- EU Charter of Fundamental Rights
Treaties are framework treaties.
Contain the main principles and it can be worked out later.
= flexibility of EU law.
It will be worked out in secondary legislation:
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,Secondary EU law: art. 288 TFEU
Made by organ and institutions of the European Union.
Listed in art. 288 TFEU:
- Regulation(=verordening)
General application. Binds in every conceivable way.
And it applies directly, immediately in every member state.
A law that is adopted in Brussel and BANG it’s law in the Netherlands..
Regulations are extremely powerful.
Are the same in all the member states, word by word.
- Directive
Binding, but before it reaches you and me, it should be transposed in national law.
If a directive says men and women must be paid the same for equal work then run
back to the Dutch legislator so they can adopt a law saying that mannen en vrouwen
gelijk betaald moeten worden.
NEEDS TO BE TRANSPOSED INTO DUTCH LAW.
Most EU law is directive.
It’s up to you how to make it happen as a member state as long you make it happen.
Regulation: ONLY IF YOU WANT TO NBE ABSOLUTELY SURE THAT SOMETHING
IS IDENTICAL IN THE WHOLE 28 STATES.
DIFFERENCE BETWEEN DIRECTIVE and REGULATION:
o Directive: needs to be transposed into Dutch law
o Regulation: it Is automatically part of the national law.
- Decision
Basically the same as a directive BUT the difference is:
it doesn’t address a state but it addresses an individual.
It is binding to that individual.
- Recommendations and opinions (soft law, no binding forces)
Legally not binding.
‘’It is good if you do not smoke.’’
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,Principle of Loyalty (art. 4.3 TEU)
In order to make sure that the member States do what they supposed to do. There is a legal
principle: principle of sincere cooperation (loyale samenwerking).
Art. 4(3) TEU. It also means that you should refrain from things that are bad for the project
you have subscribed to.
Consequences of EU Membership
- Limited sovereignty and different policy areas to different degrees, in particular:
o Prohibitions (discriminating etc.), obligations
o TEU
o Respect individual rights
** freedom to act as a state, is limited. Everything Is regulated by the EU.
You lose a lot of sovereignty. It comes in different forms.
Prohibitions (things you should not do), like you can no longer discriminate.
Obligations, thing you should do.
If I can invoke (=beroepen op) EU law/rely on EU law.
The question is against who?
- Horizontal direct effect > means I am invoking it against you.
Legislature, executive, administration
- Vertical direct effect > higher or lower.
National, province, municipality, waterschappen
Direct applicability versus Direct effect
Direct applicability:
- Implementation is not required.
For example a regulation does not need to be implemented in a Member State.
But a Directive does have to be implemented in the Member State.
Means: regulation has direct applicability and a directive is not directly applicable.
Direct effect:
- You van invoke a norm in front of a national court.
When a norm has direct effect, it is not necessary directly applicable.
For example: a provision of a Directive can have direct effect under certain
conditions, but a Directive is not directly applicable, because the provision first need
to be implemented into national law.
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,Direct effect of primary law
In the case of Van Gend & Loos, the questions arose if Treaty provisions that were
sufficiently precise could give rise to rights or obligations which could be applied by national
courts in specific situations (thus giving the provisions direct effect).
The case of Van Gend & loos = one of most important cases in EU law.
It confirmed the direct effect of EU law on national citizens.
It deemed the EU Treaties to be more than just an agreement creating reciprocal obligations
between Member States. The EU was now recognized as being an autonomous legal order.
National citizens of individual Member States ever since have had the right to be protected
by EU law, directly.
Three criteria follow from Van Gend & Loos:
- The provision has to be CLEAR
- The provision has to be UNCONDITIONAL (automatic
- The prohibition has to be PRECISE (no room for reservations)
= direct effect.
Effect of EU law: three avenues
EU law is made in Brussel and somehow it needs to be part of Dutch law.
Problem is: member states are very often naughty. They decide something and when they go
home they don’t like the decide anymore. Let ignore what we promised, let’s not
implementation is into Dutch law.
1. Direct Effect: Van Gend en Loos
There is no Dutch law, because the Dutch Parliament decides to ignore what they
promised in Brussel.
So you, as a citizen, can take the DIRECTIVE, and go to the court and say that you
rely on that directive.
What is the big deal?
In EU law the citizens are not depended on the goodwill of our parliament.
Once they agreed on the directive, when there is direct effect, you don’t need the
parliament anymore.
Because it is DIRECT EFFECT. You can directly rely on.
Van Gend en Loos:
Court said we are not going to wait for the member state to implement the law,
because there is direct effect.
If you satisfy the three conditions: clear, precise, and unconditional.
MEANING of the criteria:
The court must be in a position to establish exactly what the right amounts to.
2.
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, Vertical and Horizontal direct effect
- Vertical
An individual invokes EU law against a state in a national court.
- Horizontal
An individual invokes EU law against a private part.
= most discussions.
Regulations and Decisions
- Regulations
Binding in their entity and directly applicable in all Member States (art. 288 TFEU).
They do not have to be implemented into the national law.
Have direct effect in most cases, but it is still required that they are clear, precise and
unconditional.
- Decisions
Binding in its entirety, but mostly not generally applicable, because they are
addressed.
Direct effect of Directives
In order for Directive to be directly effective, not the only two general conditions of Van Gend
& Loos must be satisfied, but there are three additional criteria from the case Becker:
- Implementation period must be over
- The implementation must be too late and/or incorrect
- There must be a vertical relationship
Case Faccini Dori
= there is no horizontal (invoke against private party) direct effect when the directive
is not implemented yet or implemented incorrectly.
+
The judge is required to explain and interpret the domestic law as much as possible in
conformity with the Directive. When the result prescribed by the Directive cannot be
achieved through this method of interpretation, the State can be held liable for the
failure to implement the Directive.
But only if the three cumulative Francovich-criteria are met (next week).
Summary on direct effect:
Primary law:
- Treaties have horizontal and vertical direct effect when they are unconditional, clear
and precise (Van Gend & Loos)
- Charter of Fundamental Rights provisions have direct effect when they are
unconditional, clear and precise.
Secondary law
- Regulations
Have horizontal and vertical direct effect when they are unconditional, clear and
precise
- Directive
Have vertical direct effect, when the conditions are met, but NEVER horizontal.
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