Week 1
Principle of conferral
Principle of conferral: the Union shall act only within the limits of the competences conferred upon it
by the Member States in the Treaties to attain the objectives set out therein. Competences not
conferred upon the Union in the Treaties remain with the Member States.
- Art. 4 (1), 5 (1) & 5 (2) TEU
In two cases the Union’s legislative competence is phrased primarily in terms of pursuing objectives
1) Establishing & ensuring the functioning of the internal market (art. 114 TFEU)
2) Attaining Union objectives where the necessary powers have not been provided elsewhere
*In accordance with the principle of conferral, every binding act the Union adopt must have a legal
foundation either in the Treaties or in a valid pre-existing normative act (legal basis of the act)
COMPETENCES
1) Exclusive competences: the Union is legally obliged to exercise, when Member State action
would be less effective.
- Art. 3 TFEU
- Eurozone monetary policy & some international agreements
2) Shared competences: any competence not listed as being exclusive or supporting
- Art. 4 TFEU
- Internal market, environment & consumer protection
3) Supporting competences: the Union may carry out actions to support, coordinate or
supplement actions of MS in the form of promoting cooperation between them, along with
the adoption of Union-level incentive measures to tackle particular problems
- Art. 6 TFEU
- Health, education & culture
Subsidiarity & Proportionality
Subsidiarity: public power is attributed to the level of government where it can most effectively be
exercised; as close as possible to the citizen
- Art. 5(3) TEU
Proportionality: the content & form of Union action shall not exceed what is necessary to achieve
the objectives of the Treaties.
- Art. 5(4) TEU
Political dimension: Protocol No 2 on subsidiarity & proportionality
Legal dimension: judicial review of the EU’s exercise of competence by the Court of Justice
Supremacy of EU Law
Costa/ENEL: EU law takes precedence over all conflicting national law
Simmenthall: all national courts are obligated to set aside conflicting national law
, Direct & indirect effect
Direct effect: the ability of a piece of the EU legislation to be enforced by an individual in a court of a
member state.
à Van Gend en Loos: Treaty of Rome created a new legal order
- Individuals are subjects of EU law
- Direct effect independently of national constitutional law
Different types of direct effect
1) Vertical: individual against state
2) Inverse vertical: state against individual
3) Horizontal: between individuals
All rules & principles of EU law that are suffiently precise & unconditional have direct effect
• Treaty provisions & fundamental rights
• Regulations
• Decisions Art. 288 TFEU
• Directives
*BUT à BASIC RULE: for whom can the relevant provision create obligations?
- Rules that don’t create obligations for individuals cannot be invoked against individuals
(Marshall, Faccini Dori)
- No horizontal direct effect or inverse vertical direct effect
What if a directive is not correctly implemented by the end of the implemention deadline?
Ø Vertical direct effect if provision is sufficiently precise & unconditional
Ø Indirect effect: national courts must interpret national law as much as possible in
comformity with the directive to avoid conflicts (Marleasing/Pfeiffer)
State liability: EU law-based action for damages before national court
- Additional to direct & indirect effect
- 3 cumulative criteria (Brasserie du Pecheur)
1) Sufficiently serious breach of EU law by Member State
2) Breached provision of EU law aims to grant rights to individuals
3) Causal link between breach & damages
Preliminary reference procedure
- Art. 267 TFEU
- Cornerstone of the EU legal order that made direct effect & supremacy possible
- Questions about the interpretation of the EU law or the validity of EU secondary
legislation
- Dialogue between national courts & the Court of Justice
- Source of numerous landmark judgements
, Internal market
What is the EU internal market all about?
- Art. 26(2) TFEU
- Protocol 27 on the internal market & competition
Ø Buying & selling goods & services throughout the Union
Ø Freedom of movement & residence
Ø Balancing economic & non-economic values
How to create an internal market?
1) Positive integration: harmonisation of legislation to create common rules
2) Negative integration: prohibitions in the Treaty directed at Member States & private
parties
(1) Positieve integration: legal bases
• Internal market competence: art. 4 (2) (a) TFEU
• The need for a legal bases, specifying:
- Which institution;
- Can adopt what kind of measure;
- Using which procedure
• Art. 46, 53 (1) & 114 TFEU
- Art. 114 (2): no fiscal harmonisation
- Art. 114 (3): non-economic values > EU legislation itself not required to balance
economic & non-economic interests under Article 114, but the Commission has the
obligation to take as a base the high level of protection of non-economic values.
(2) Negative integration
a) Host state control
- Each state has its own rules subject to non-discrimination
- Foundation of international trade law
b) Home state control (more intrusive)
- Only rules of the home state of a good or service apply
- Mutual recognition of home state production
FUNDAMENTAL FREEDOMS
1. Goods: art. 34 TFEU
2. Persons: art. 21 TFEU (citizens), 45 TFEU (workers) & 49 TFEU (freedom of establishment)
3. Services: art. 56 TFEU
4. Capital & payments: art. 63 TFEU
Tobacco advertising I à limits of article 114 TFEU
In order for the EU legislature (Commission) to adopt secondary legislation on the basis of Article 114
TFEU, the EU legislature must show that there is a risk of distortions to the functioning of the internal
market or distortion from competition
Cassis de Dijon à trade versus public health
• French fruit liquor to be sold in Germany
• German rule on mimimum alcohol percentage
- Generally applicable, so no discrimination against foreign products
- But does prevent Cassis de Dijon from entering the German market
• Relevant provision: art. 34 TFEU
• National laws protecting non-economic interests (health) prohibited under Article 34 TFEU
(Dassonville), but could be justified as mandatory requirement
, THE STRUCTURE OF EU INTERNAL MARKET LAW
1) Jurisdiction
Ø Does EU law apply to this case?
- Is there applicable harmonisation or a cross-border effect?
2) Material scope
Ø Which fundamental freedom is applicable?
3) Direct effect & personal scope
Ø Can the claimant invoke the freedom against the defendant?
4) Restriction
Ø Is the applicable fundamental freedom being restricted/hindered?
5) Justification
Ø Is there a ground of justification?
Ø Is the national measure proportionate?
Ø Are fundamental rights respected?
JURISDICTION
(1) Harmonisation
• Is there any secondary legislation applicable?
• The applicability of the secondary legislation is determined by the legislation itself
(2) Treaty provisions
• Cross-border effect is generally required to activate free movement law
• Purely internal situations (between private parties & their Member State) are not covered by
EU Law
• RULE OF THUMB: is the dispute confined in all respect within a single Member State?
à Reverse discrimination: when the national law of a Member state provides for worse
treatment of its citizens than other EU citizens under EU law
• BUT the Court is usually very flexible in finding a cross-border effect as long as there is some
EU interest in the case
MATERIAL SCOPE à Treaty provisions
• If there is a cross-border element, which freedom is applicable (describe this freedom)?
DIRECT EFFECT & PERSONAL SCOPE
• Can the claimant invoke EU law against the defendant?
Ø All fundamental freedoms have vertical direct effect
Ø Not all freedoms have horizontal direct effect
IS THERE A RESTRICTION TO TRADE
1. Direct discrimination: discriminating against a foreign product (discrimination in law)
2. Indirect discrimination: discrimination in fact
• Indistinctly applicable measure but in practise a heavier burden for foreign products
3. Non-discriminatory trade obstacles: a measure that makes it more difficult or less attractive
to exercise free movement rights (Gebhard); Measures that apply to all, but tend to favour
domestic products more than foreign products
IS THERE A JUSTIFICATION?
1. Express derogations in the TFEU
2. Additional public interest justifications developed in case law
3. Suitability
Proportionality
4. Necessity
5. Measures must always respect fundamental rights in order to be justified
Principle of conferral
Principle of conferral: the Union shall act only within the limits of the competences conferred upon it
by the Member States in the Treaties to attain the objectives set out therein. Competences not
conferred upon the Union in the Treaties remain with the Member States.
- Art. 4 (1), 5 (1) & 5 (2) TEU
In two cases the Union’s legislative competence is phrased primarily in terms of pursuing objectives
1) Establishing & ensuring the functioning of the internal market (art. 114 TFEU)
2) Attaining Union objectives where the necessary powers have not been provided elsewhere
*In accordance with the principle of conferral, every binding act the Union adopt must have a legal
foundation either in the Treaties or in a valid pre-existing normative act (legal basis of the act)
COMPETENCES
1) Exclusive competences: the Union is legally obliged to exercise, when Member State action
would be less effective.
- Art. 3 TFEU
- Eurozone monetary policy & some international agreements
2) Shared competences: any competence not listed as being exclusive or supporting
- Art. 4 TFEU
- Internal market, environment & consumer protection
3) Supporting competences: the Union may carry out actions to support, coordinate or
supplement actions of MS in the form of promoting cooperation between them, along with
the adoption of Union-level incentive measures to tackle particular problems
- Art. 6 TFEU
- Health, education & culture
Subsidiarity & Proportionality
Subsidiarity: public power is attributed to the level of government where it can most effectively be
exercised; as close as possible to the citizen
- Art. 5(3) TEU
Proportionality: the content & form of Union action shall not exceed what is necessary to achieve
the objectives of the Treaties.
- Art. 5(4) TEU
Political dimension: Protocol No 2 on subsidiarity & proportionality
Legal dimension: judicial review of the EU’s exercise of competence by the Court of Justice
Supremacy of EU Law
Costa/ENEL: EU law takes precedence over all conflicting national law
Simmenthall: all national courts are obligated to set aside conflicting national law
, Direct & indirect effect
Direct effect: the ability of a piece of the EU legislation to be enforced by an individual in a court of a
member state.
à Van Gend en Loos: Treaty of Rome created a new legal order
- Individuals are subjects of EU law
- Direct effect independently of national constitutional law
Different types of direct effect
1) Vertical: individual against state
2) Inverse vertical: state against individual
3) Horizontal: between individuals
All rules & principles of EU law that are suffiently precise & unconditional have direct effect
• Treaty provisions & fundamental rights
• Regulations
• Decisions Art. 288 TFEU
• Directives
*BUT à BASIC RULE: for whom can the relevant provision create obligations?
- Rules that don’t create obligations for individuals cannot be invoked against individuals
(Marshall, Faccini Dori)
- No horizontal direct effect or inverse vertical direct effect
What if a directive is not correctly implemented by the end of the implemention deadline?
Ø Vertical direct effect if provision is sufficiently precise & unconditional
Ø Indirect effect: national courts must interpret national law as much as possible in
comformity with the directive to avoid conflicts (Marleasing/Pfeiffer)
State liability: EU law-based action for damages before national court
- Additional to direct & indirect effect
- 3 cumulative criteria (Brasserie du Pecheur)
1) Sufficiently serious breach of EU law by Member State
2) Breached provision of EU law aims to grant rights to individuals
3) Causal link between breach & damages
Preliminary reference procedure
- Art. 267 TFEU
- Cornerstone of the EU legal order that made direct effect & supremacy possible
- Questions about the interpretation of the EU law or the validity of EU secondary
legislation
- Dialogue between national courts & the Court of Justice
- Source of numerous landmark judgements
, Internal market
What is the EU internal market all about?
- Art. 26(2) TFEU
- Protocol 27 on the internal market & competition
Ø Buying & selling goods & services throughout the Union
Ø Freedom of movement & residence
Ø Balancing economic & non-economic values
How to create an internal market?
1) Positive integration: harmonisation of legislation to create common rules
2) Negative integration: prohibitions in the Treaty directed at Member States & private
parties
(1) Positieve integration: legal bases
• Internal market competence: art. 4 (2) (a) TFEU
• The need for a legal bases, specifying:
- Which institution;
- Can adopt what kind of measure;
- Using which procedure
• Art. 46, 53 (1) & 114 TFEU
- Art. 114 (2): no fiscal harmonisation
- Art. 114 (3): non-economic values > EU legislation itself not required to balance
economic & non-economic interests under Article 114, but the Commission has the
obligation to take as a base the high level of protection of non-economic values.
(2) Negative integration
a) Host state control
- Each state has its own rules subject to non-discrimination
- Foundation of international trade law
b) Home state control (more intrusive)
- Only rules of the home state of a good or service apply
- Mutual recognition of home state production
FUNDAMENTAL FREEDOMS
1. Goods: art. 34 TFEU
2. Persons: art. 21 TFEU (citizens), 45 TFEU (workers) & 49 TFEU (freedom of establishment)
3. Services: art. 56 TFEU
4. Capital & payments: art. 63 TFEU
Tobacco advertising I à limits of article 114 TFEU
In order for the EU legislature (Commission) to adopt secondary legislation on the basis of Article 114
TFEU, the EU legislature must show that there is a risk of distortions to the functioning of the internal
market or distortion from competition
Cassis de Dijon à trade versus public health
• French fruit liquor to be sold in Germany
• German rule on mimimum alcohol percentage
- Generally applicable, so no discrimination against foreign products
- But does prevent Cassis de Dijon from entering the German market
• Relevant provision: art. 34 TFEU
• National laws protecting non-economic interests (health) prohibited under Article 34 TFEU
(Dassonville), but could be justified as mandatory requirement
, THE STRUCTURE OF EU INTERNAL MARKET LAW
1) Jurisdiction
Ø Does EU law apply to this case?
- Is there applicable harmonisation or a cross-border effect?
2) Material scope
Ø Which fundamental freedom is applicable?
3) Direct effect & personal scope
Ø Can the claimant invoke the freedom against the defendant?
4) Restriction
Ø Is the applicable fundamental freedom being restricted/hindered?
5) Justification
Ø Is there a ground of justification?
Ø Is the national measure proportionate?
Ø Are fundamental rights respected?
JURISDICTION
(1) Harmonisation
• Is there any secondary legislation applicable?
• The applicability of the secondary legislation is determined by the legislation itself
(2) Treaty provisions
• Cross-border effect is generally required to activate free movement law
• Purely internal situations (between private parties & their Member State) are not covered by
EU Law
• RULE OF THUMB: is the dispute confined in all respect within a single Member State?
à Reverse discrimination: when the national law of a Member state provides for worse
treatment of its citizens than other EU citizens under EU law
• BUT the Court is usually very flexible in finding a cross-border effect as long as there is some
EU interest in the case
MATERIAL SCOPE à Treaty provisions
• If there is a cross-border element, which freedom is applicable (describe this freedom)?
DIRECT EFFECT & PERSONAL SCOPE
• Can the claimant invoke EU law against the defendant?
Ø All fundamental freedoms have vertical direct effect
Ø Not all freedoms have horizontal direct effect
IS THERE A RESTRICTION TO TRADE
1. Direct discrimination: discriminating against a foreign product (discrimination in law)
2. Indirect discrimination: discrimination in fact
• Indistinctly applicable measure but in practise a heavier burden for foreign products
3. Non-discriminatory trade obstacles: a measure that makes it more difficult or less attractive
to exercise free movement rights (Gebhard); Measures that apply to all, but tend to favour
domestic products more than foreign products
IS THERE A JUSTIFICATION?
1. Express derogations in the TFEU
2. Additional public interest justifications developed in case law
3. Suitability
Proportionality
4. Necessity
5. Measures must always respect fundamental rights in order to be justified
