Summary European Law exam notes

European Law
Exam Notes
2019-2020

,NotesWeek 1 (A) A new legal order + direct effect
(B) Values + enforcement

 Shuman Declaration [1950]
1. Pooling resources-
New Europe-entangle economies-no war
2. Colonialism-Pooling reinforces colonialism
-Euro-African Internal market- decolonization [Europe shrank]

 Why is the EU different?
-Integration + pooling sovereignty were not new [Napoleonic + Roman empires]
-NEW: Don’t destroy individual parts but create a supranational centre

 Types of integration
1. Intergovernmental
-Nations coming together to solve problems
-Every state has final say [veto]

2. Supranational
-Sovereignty pooled in supranational institutions
-Issue binding laws-everyone is bound

 Proposals for EU integration [post WW2]
1. Count Kalergi
-Intergovernmental cooperation-couldn’t bind states
2. Jean Monnet
-Supranational cooperation- bind states
-Convinced 6 MS to limit their sovereignty + create supranational institutions

 Pooling sovereignty
 Economically: Creation of internal market
-Europeans freely do business across continent
-Tools to protect own market= illegal
 Politically: Non-discrimination
-Europeans treated equally across the continent
-Europe is for Europeans unlike USA which is for Americans

 The Plan: ECSC [Created by Monnet ]
-Coal + steel=starting point for poling resources-used to wage war
-Regulated under the High Authority [Monnet=president]
-Framework exported to other parts of 6 MSs economies

 Hope for European nuclear force
-EURATOM [1957] =separate community because sovereignty rests with USA
-Wanted to become third nuclear superpower-couldn’t compete with Russia/USA

 Founding + amending treaties
 Founding=Create new organization
 Amending=amending that organization
EEC=Founding treaty of TFEU
EC= Founding treaty of TEU [inspiration from ECSC]

 Current treaties of the EU
 Treaty on European Union [TEU]
-Constitutional rules+ CFSP
 Treaty on the Functioning of the European Union [TFEU]
-Makes constitutional rules work
-Contains policy fields of EU
-Protocols
 EU Charter of fundamental rights

, -Same legal values as TFEU + TEU
CJEU interprets treaty + gives meaning to articles

 Whole body of EU law [supranational law]
 Primary law
-Treaties
-Unwritten General principles [discovered by CJEU]
 Secondary Law
-All law made in accordance with procedures prescribed in primary law
 CJEU
-Rules on interpretation of EU law
-Cannot legislate

 The nature of EU law
 International or constitutional law?
o International law= rights/obligations for states
o Constitutional law=rights/obligations for citizens
- Supranational law is internationally made but functions like constitutional law
- because it directly provides individuals with rights
 Supremacy v direct effect [not in treaties]
-Explained by CJEU case law
-To have direct effect EU law needs to be supreme [interrelated]
o Direct effect [VGEL]=Like constitutional law can be invoked in national law by citizens
o Supremacy [Costa v ENEL] = Where EU has competence it has precedence, no international law
monism or dualism
-Limit to supremacy?
-Unlike with constitutional law- no popular sovereignty to tap into-where there is no delegation of
competence there is no supremacy
 Legal heritage of individuals [VGEL/Costa v ENEL]
-Rights created at the supranational level belong to all EU citizens
 A system of values [Articles 2 + 3 TEU]
-All EU law has to comply with these values
-Human dignity, freedom, democracy, equality, rule of law
 Reason for EU existence: messianism [saviour]?
-The EU succeeded in its promises in Schuman Declaration -nothing to offer but its success
-Everything happens via MSs!
o No EU court but MS courts
o MS have high involvement in institutions
o EU is scapegoat: MS blame it when things go wrong
 The rule of law + expectations
-EU is based on the rule of law + decisions are implemented at the lower level
-The more rights that have entered the more expectations have grown
-Still an economic union + enforcement for Article 2 Values in limited
-Hungary/Poland violating rule of law but have prosperous economies

 Direct effect
-Individuals go before national courts to have EU rights protected
-Article 267 TFEU {prelim rulings} is justification for DE
 Direct effect test [VGEL]
1. Provision should be clear
2. Provision should be precise [no double meaning]
3. Provision should be unconditional [not dependent on intervention by national authorities]

 Direct effect v direct applicability
 Direct applicability
-No transposition or further implementation of EU law is necessary
-Directives are never directly applicable [forced dualism]
 Direct effect
-Individuals rely on provisions of EU law before national courts
-Clear, precise and unconditional
-Directives, although not directly applicable can have direct effect sometimes

, Direct effect + secondary EU law
-Now principle has spread to secondary EU law
1. Regulations: LeonesioVertical DE
MunozHorizontal DE
2. Decisions: 9/70 GradNot in reader
3. Directives:
-Not directly applicableextensive case law
-When directives were introduced there was an assumption that EU MSs would always comply with obligations
-MSs always want to escape obligations
-CJEU invents ways to force them to comply
-Directives are aimed at MS but can have DE

 Direct effect of directives
-Incorrect transposition or lacking transposition after deadline has passed
 DEFAULT: No direct effect they are aimed at states BUT
1. Vertical DE [Van Duyn]
-Can only go against states or other public sector organ
-We do not allow states to fail at fulfilling EU law obligations
2. Horizontal DE [Prohibited] [Marshall]
-Private party v private party=allowed
-Often resort to indirect effect to award rights in these cases
3. Reverse vertical DE [prohibited] [Kolpinghuis]
-Public authority against private party
-Prohibited in EU law
4. Indirect DE
-Private party v private party
-Court found a way around the prohibition of horizontal DE
-Read EU law into national law
-Limitations
1. No contra legim
-Can’t interpret against national law where it is clear and unambiguous
2. Legal certainty
-Cannot read into law that doesn’t exist
5. Triangular situations
-Rarely a neat vertical situation
-Disputes between a private person + public authority have indirect effect on another private person

 Rights from directives in national courts [all directive situations]
Step 1: Apply sufficiently clear and unconditional test
Step 2: Limitations
1. Normative
-No horizontal DE [Marshall]
-No inverse vertical DE [Kolpinghuis]
2. Temporal limitations
-Transposition deadline has passed and state
I. Not implemented directive
II. Implemented directive improperly

 Loyalty [Article 4(3)]: A necessary precondition
-Aimed at EU institutions + MS institutions
-A duty to help and not to hinder
-MS must carry out obligations under EU law, but national law must also comply with these obligations

 Loyalty + the scope of the acquis
-Presumption of compliance by MS, only things raised before CJEU will be assessed
1. MS failing to comply with the law [acquis]
2. MS failing to comply with Article 2 values
-Allot of these areas are regulated by national competences
-The appointment of judges [nat. competence] directly affects compliance with EU value [rule of law Art 2]

,  Enforcement of the acquis v enforcement of values
-Article 2 values are enforced by Article 7=political procedure
 Article 7(1)sanction those who threaten the values
 Article 7(2) or have violated them
 Article 7(3) Sanctions [suspend council voting]
 Article 7(4)Revocation of sanctions

 Article 7: Enforcement of values: political action, no legal basis
-Not about acquis this is enforced using 258/59 + 260 TFEU
-Can give EU right to intervene in areas of MS competence where they threaten EU values
-This is political condemnation + so no need for a legal basis, not a legal action

 Enforcement of the acquis : legal action, legal basis

 Private enforcement: National courts: For individuals in individual cases
-CJEU will formulate principles/make interpretations but national court must apply it to the individual case
Article 19 TEU:
CJEU: In interpretation + application of treaties the law is observed
-267TFEU preliminary ruling for interpretation
National Court: provide remedies sufficient [..] effective legal protection in areas covered by EU law
 Public enforcement: Supranational institutions: EU institutions for all
-EU institutions enforce EU law for the sake of all EU citizens/companies
Articles 258/9/260 +17TEU
o Article 258 TEFU: Infringement procedure
-Discretion of the commission
-Goal is to foster a climate of EU law compliance
1. Administrative stage
o Informal stageMS opportunity too reach solution with commission
o Formal stageMS formally notified of the specific infringement in the letter of
formal notice
o Formal stageCommission issues a reasoned opinion which sets a time limit in
which MS must comply with EU law
2. Judicial stage
-Case referred to CJEU
Commission v Italy
-Doesn’t matter if breach has stopped can still be used to get compensation for individuals
Irish Waste
-Can be a cumulation of breaches
o Article 17 TEU: The commission has responsibility for correct application of treaties
o Article 269 TFEU: Infringement procedure
-Rarely used procedure-politics means MS would always rather it be a 258TFEU procedure
-Shielded by commission
-MSs are co-responsible for atmosphere of compliance
Always starts at 258TFEU
1. Commission agrees with MSbecomes a 258TFEU action
2. Commission doesn’t agree with MS+ doesn’t issue a reasoned opinionbecomes 259TFEU
action
Spain v UK
-Commission dismisses Spains allegation that UK cannot hold elections in Gibraltar
-Gibraltar is an autonomous colony of the UK
-Spain brings case to CJEU + CJEU dismisses
o Article 260TFEU: Post CJEU judgement
-Sanctions for non-compliance under infringement procedures
 Lump sum: Breach of obligations has persisted for a long time since judgement
 Penalty payment: put a stop to a breach of obligations ASAP
Summary

Acquis [legal action]
o Article 4(3): A duty to help + not to hinder
 Help [In MS itself]
-Private enforcement: Direct applicability+ direct effect + supremacy + Article 19

, -Enact measures that will ensure protection [Spanish Strawberries]
 Not to hinder [By EU institutions]
-Enforcement of the acquis=public enforcement
-Articles 258/259/260/17=Commission as guardian of the treaties

Values [political action]
o Article 4(3): A duty to help + not to hinder
 Help [In MS itself]
-MS must have regard for Article 2 values when exercising national competences
 Not to hinder [By EU institutions]
-Enforcement of Article 2 values via Article 7


Case law

Private enforcement: acquis=full effectiveness of community law in national courts
o Article 4(3): Duty to help: Simmenthal + Factortame: National court has task of ensuring
effectiveness of EU by awarding individuals their rights

 VGELDirect effect of treaty provision
 Costa v ENELSupremacy
 SimmenthalNational substantive laws: The consequences of direct effect and supremacy-national court set aside
provision which conflicts weather prior or subsequent without waiting for repeal or declaration of unconstitutionality
 FactortameNational procedural laws: National procedural laws that would prevent the full effectiveness of community
law must be set aside [Interim relief] even though MS have autonomy here despite parliamentary sovereignty
 Accession to the ECHREU must remain sole interpreter of EU law despite the fact national courts apply it
 Defrenne v Sabena Horizontal DE of clear and unconditional treaty provisions
 LeonesioVertical DE of Regulations because of direct applicability
 MunozHorizontal DE of Regulations
 Van DuynVertical DE of directives on a case by case basis
 MarshallFor vertical DE you need to check that the transposition deadline has passed + state has failed to
implement/implement correctly
 MarshallNo horizontal DE of directives

Public enforcement: acquis= Full effectiveness of EU law in MSs enforced by commission in the CJEU
o Article 4(3): Duty not to hinder: Refrain from measures which could jeopardise attainment of the
objectives of EU law: commission oversees this

 Commission v Italy: Article 258TFEU-Faliure to implement
-Applies to secondary legislation
-Both the manner in which the MS gives effect to provisions + non-implementation of provisions can affect the equality
of all members of the EU
 France v UK: Article 259 TFEU- Adopting a positive act that is contrary to EU law
-An infringement procedure applies to a breach of a council resolution, it can be bought for any breach of the whole
acquis
 Star Fruit: Article 265TFEU
-After issuing a reasoned opinion, the commission has discretion on weather to bring to CJEU or not
 Commission v France I: Article 258TFEU-MS failing to take action
-MS have discretion in areas of their competence but CJEU can review
 Irish Waste: Article 258TFEU
-In areas of MS competence where they have discretion a period of time must elapse before we can say they have failed
to take adequate measures
 Commission v France II: Article 260TFEU
-The purpose of Article 260TFEU is to induce a MS to comply with the judgement and therefore to have community law
applied
 Commission v Hungary: Article 258TFEU
-MS adopting legislation which is contrary to secondary EU law
 Spain v UK: Article 259TFEU
-Example of when an Article 259TFEU procedure is bough for political reasons there was no error in law on behalf of
the UK

,NotesWeek 2- Decision-making in the EU
 Competence [to legislate]: Article 5(1) TEU conferral
-Only where MS has transferred the competence
-Case Law: VGEL
‘States have limited their sovereign rights, albeit in limited field’

Exclusive
 Article 2(1) TFEUGeneral description
 Article 3 TFEUActual competences
-In these areas only the union can legislate
-Born with the union
-MSs can only act if union confers power on them for implementation
Shared
 Article 2(2) TFEUGeneral description
 Article 4 TFEUActual competence
-In these areas both the EU + MS have competence to legislate
-Competence of national government before union harmonized to avoid conflict
-As soon as EU exercises this competence the MS can only legislate to implement
-Either/or but not both can legislate
Complementary
 Article 2(5) TFEUGeneral description
 Article 6 TFEUActual competence
-MS appreciate the EUs financial aid in these areas
-These are still legally binding acts but the EU cannot harmonise national law
CFSP
 Article 24 TEU
-The EU has no legislative power and defines and implements only
-This is an intergovernmental area
-MS must not abuse competence under Article 40 TEU
No EU competence
 These are not mentioned in the treaties
-Drug use, taxation, gambling

 Harmonization [shared competences]
-Isn’t necessary with exclusive + not allowed with complementary
-National law is repealed by an EU standard
 Biggest category=internal market
-MS can adopt any legislation it wants until the EU decides to legislate
-MS looses competence when EU makes this decision + EU law replaces content of national law and
the national right to legislate in that area

 Competence v legal basis
 Competence= Area that EU MS can legislate in broadly [MS limited sovereignty]
 Policy area= Found in TFEU
 Legal basis=Steps EU should take if it chooses to legislate
o Competences/legal bases are a balancing act between EU + MSs
 Competences: Interests of EU v interests of MS
 Legal bases:
1. Externally-Role of EU v Role of MS [who will legislate]
2. Internally-Role of institutions
o Case law on balancing
-The principle of institutional balance: Each EU institution must exercise its powers with die regard for the
powers of other institutions
1. Balancing of competences between EU and MS
Case law: Tobacco Advertising I
-MS fear that EU can use internal market to regulate everything
Case law: Antarctic Treaty
-Who should represent EU?
 Commission believes this is fisheries policy
 Council believes this is environmental policy

, 2. Selection of legal bases + institutions
Case law: Chernobyl
-Parliament as democratic institution being shut out
Subsidiarity + proportionality
-Apply when competence is clear
o Commission comes up with a proposal and they need to justify legislation on the basis of these two principles

 Subsidiarity
-Article 5(3) TEUUse of competence, should the union act?
-Applied in shared + complementary competences
-Problems should be remedied as close to the citizen as possible; only transboundary issues will be dealt with by
the EU

 Political safeguard: Protocol no. 2 [pg 132]
-Union hasn’t acted yet
o Article 5(3) TEUNational Parliaments assess compliance
o Article 12 TEUNational parliaments + subsidiarity
o Article 4/5 of pro.2Commission justifies compliance with subsidiarity; must not use vague terms like ‘internal
market’ to regulate everything
Yellow card procedure: Article 7
-Representative body in each MS has two yellow cards per proposal
-If the majority of national parliaments do not agree that proposal is in line with subsidiarity, commission either
-Redrafts
-Restates reasons for proposal
-No veto by MS this would distort the power of the EU

 Judicial safeguard: Protocol no.2
-Union has acted and there has been an infringement of subsidiarity
Procedure: Article 8
-CJEU has jurisdiction under Article 263TFEU

 The principle of proportionality
-Article 5(4) TEUIntensity of the legislation, through which means?
-The form and content should not go beyond what is proportional
 Form= Article 288TFEU
 Content=
1. Suitable to achieve goal
2. Necessary- is there another way with less negative implications?
3. Not excessively burdensome- positive outcome must be more important than negative
consequences

 Political safeguard: Protocol no.2
o Article 4/5: Commission justifies compliance with proportionality, least invasive form to achieve goal should
be chosen

 Judicial safeguard
o CJEU performs a marginal review: must be manifestly disproportionate not to qualify

 How to spot a legal basis
1. Policy
2. Party
3. Procedure
-Some Articles have more than one legislative procedure
-Special legislative procedures will always outline the steps
-Often reiteration of general principles of policy area before the legal basis [keep reading]

 Role of institutions in legislating
-In the ordinary legislative procedure, the commission proposes and the parliament/council co-legislate
 ParliamentArticle 14 TEU
 Council of MinistersArticle 16 TEU

,  CommissionArticle 17 TEU

 The ordinary legislative procedure: Article 16 [4] TEU

Parliament: Bigger MSs have more seats in parliament

Council of Ministers
1. QMV in the council
o Bigger MS have more weight in council
-Weighed voting that
-Represents 55% of MS
-But must also represent 65% of the EU population
-Important because each MS has one representative with one vote but totally different
population sizes
2. Blocking minority
-4 council members representing 35% of the EU population

 The ordinary legislative procedure explained
-Article 294TFEU + 289(1) TFEU
 First reading
-proposal from Commission to EP/Council
 Option 1: parliament approves proposalcouncil approves parliament position without amendment
 Option 2: parliament adopts amendment to proposalcouncil approves parliament position
× Option 3: Parliament adopts amendment to proposal council adopts amendment to parliament
position--------
 Second reading
 Option 1: parliament approves councils position without amendment
 Option 2: Parliament adopts amendments to Councils positioncouncil approves
× Option 3: Not adopted: Parliament rejects councils position
× Option 4: Parliament adopts amendments to councils positioncouncil doesn’t approve these
amendments -----
 Third reading: conciliation committee convened to reach agreement
× No Agreement reached
× Agreement reached + Joint text not approved
 Agreement reached + joint text approved

 Is everything legislative? No!
 Article 288TFEU: Regulations, Directives, Decisions, Recommendations + Opinions
-Latter two are not legislative
 Article 289(3) TFEU: Legislative acts go through the legislative procedure
 Article 290 TFEU: Delegated acts
-A legislative act may delegate power to the commission to adopt non-legislative acts to supplement
elements of legislative acts
 Article 291TFEU: Implementing acts
-MS or commission may be awarded power in legislative act to adopt implementing act


Case law: All Article 263TFEU procedures

 UK v Council: Proper approach to correct choice of legal basis-objective factors amenable to judicial review
 Chernobyl: parliament believes that it has been shut out [democratic institution]- need to look at aim and content of
regulation- can have incidental affects on another policy area
 Tobacco Advertising, I: EU cannot use internal market competence to regulate everything
 Antarctica Treaties: Fight between EU and MS extends to instruments like reflection papers not just legislation and aim
and content test must be used
-Dual legal basis where they are inseparably linked

Part II
 Titanium Dioxide Waste: Can only resort to dual legal basis where the procedure is the same for both
 Working time Directive: When a legal basis is chosen but part of the content does not fit the aim this part can be annulled
separately as long as it is severable

,  Criminal penalties/environment: where the harmonization of criminal law is minimal the community may legislate under
environmental legal basis to ensure effectiveness of EU law
-Where part of the directive is not severable then whole thing mist be annulled
 Tobacco Advertising II: Criteria for the use of 114TFEU as a general legal basis for harmonizing the internal market
1. Are there disparities between national rules?
2. What is the effect of such disparities: is it creating obstacles now or in the future?
3. Look at specific articles that want to be annulled: are they aimed at preventing or eliminating these obstacles?
 Refugee Status: Establishment of secondary legal basis are not allowed unless the treaty says an institution can amend the
decision-making procedure
 Ireland v EP + Council: Looks really heavily at the substance of the secondary legislation in order to determine what it
predominantly concerns