Week 1 Part A
Answering case questions
› IRAC method
Issue: what is the legal issue of the case?
Rule: what is the applicable rule?
N.B. Often not only a legal provision but also how it is interpreted by the EU courts
Application: how should the rule be applied to the facts of this case?
Conclusion: what is the legal conclusion?
› Method of assessment for this course
- Points awarded for identifying the rule and applying it to the case
The nature of the EU
→ Treaty
Article 1 TEU: “By this Treaty, the HIGH CONTRACTING PARTIES establish among
themselves a EUROPEAN UNION, hereinafter called ‘the Union’, on which the
Member States confer competences to attain objectives they have in common.”
● Not a state
● “More” than an “ordinary” treaty of international law (Van Gend & Loos)
■ Speaks not just to States but to citizens
● Similarities with
○ some federations
○ constitutional law
○ public international law
→ Schütze
➔ The EU in light of the German tradition
==> Looking at the relationship between national and international law
◆ No middle way between “confederation” and “federal state”
◆ Sovereignty retained by Member States
⇒ EU not a federation BECAUSE its not a state HENCE a confederation and THEREFORE MS
keep sovereignty
, ➔ The EU in light of the American tradition
◆ “Federation of States
◆ Sovereignty split
⇒ US states sovereign in some respects and federal state sovereign in some respects WHICH
according to German tradition does not exist. Therefore “Federation of States”
❖ Why is it important?
→ Various political, cultural and societal reasons
→ Identify ”ultimate authority” in cases of conflict
- What to do when German law says A and EU law says B (EU law has supremacy but
which court has say?)
The principle of conferral
Articles 4(1), 5(1) and (2) TEU
⇒ EU only has competences conferred onto it by MS, competences which were not
transferred are retained by MS.
Compare with Article 70(1) German Basic Law
- “The Länder shall have the right to legislate insofar as this Basic Law does not confer
legislative power on the Federation”
And the 10th Amendment to the US Constitution
- “The powers not delegated to the United States by the Constitution, nor prohibited by it
to the States, are reserved to the States respectively, or to the people”
› Practical implementation: All EU legislative action must be based on a specific
“legal basis” in the Treaties
Choosing the correct legal basis
› Practical application of the principle of conferral
› Constitutional importance
- Which institution(s)…
- can adopt what kind of measure…
- using which procedure?
› How to choose the correct legal basis?
→ Titanium Dioxide: look at “objective factors amenable to judicial review”, in
particular “aim and content of the measure”
,Types of competences
❖ Exclusive competences (Article 3 TFEU)
- e.g. Eurozone monetary policy, some international agreements
❖ Shared competences (Article 4 TFEU)
- e.g. internal market, environment, consumer protection
❖ Coordinating competences (Article 5 TFEU)
- e.g. economic policy, social policy
❖ Complementary competences (Article 6 TFEU)
- e.g. health, education, culture
N.B. These are not Legal Basis’
What is the EU internal market?
Article 26(2) TFEU
→ Four fundamental freedoms = reduce barriers to trade
1. Goods: Articles 28–37 TFEU
2. Persons: Article 21 TFEU, Articles 45–55 TFEU
3. Services: Articles 56–62 TFEU
4. Capital and payments: Articles 63–66 TFEU (not really covered)
› Plus a system of undistorted competition (Protocol No 27)
What is the EU internal market about?
› Buying and selling goods and services throughout the Union
- Plumbers, lawyers, retailers, etc.
- E-commerce
- Mobile data
› Freedom of movement and residence
- Workers
- Self-employed
, - Students
- Non-economically active citizens
› Balancing economic and non-economic values
- Fundamental freedoms vs. fundamental rights
- Economic growth vs. sustainability
- Free enterprise vs. labour
N.B. Prerequisite of free movement across state lines, very aspirational
How to create an internal market?
Schütze: “Dichotomy between the decisions you can take of positive or negative integration”
› Either through positive integration
➢ Adopting EU-wide legislation to create common rules
➢ Also known as “harmonisation”
➢ Always based on a specific legal basis in the Treaty
➢ Replaces national legislation in a certain area
› Or through negative integration
★ Legislator does not need to do anything BECAUSE it is already in the treaty
(Prohibitions)
★ Prohibitions in the Treaty directed at Member States and private parties
★ Directly applicable: does not require legislative action by EU institutions
★ By default, national legislation remains in place, but must not breach Treaty prohibitions
N.B. In the latter can take a law to court and argue that national legislation violates the Treaty
Positive integration: Article 114 TFEU
→ The power to harmonise national legislation
→ Very important Legal Basis
- Article 114(1) TFEU: “Save where otherwise provided in the Treaties, the following
provisions shall apply for the achievement of the objectives set out in Article 26. The
European Parliament and the Council shall, acting in accordance with the ordinary
legislative procedure and after consulting the Economic and Social Committee, adopt the
measures for the approximation of the provisions laid down by law, regulation or
administrative action in Member States which have as their object the establishment and
functioning of the internal market.”
Answering case questions
› IRAC method
Issue: what is the legal issue of the case?
Rule: what is the applicable rule?
N.B. Often not only a legal provision but also how it is interpreted by the EU courts
Application: how should the rule be applied to the facts of this case?
Conclusion: what is the legal conclusion?
› Method of assessment for this course
- Points awarded for identifying the rule and applying it to the case
The nature of the EU
→ Treaty
Article 1 TEU: “By this Treaty, the HIGH CONTRACTING PARTIES establish among
themselves a EUROPEAN UNION, hereinafter called ‘the Union’, on which the
Member States confer competences to attain objectives they have in common.”
● Not a state
● “More” than an “ordinary” treaty of international law (Van Gend & Loos)
■ Speaks not just to States but to citizens
● Similarities with
○ some federations
○ constitutional law
○ public international law
→ Schütze
➔ The EU in light of the German tradition
==> Looking at the relationship between national and international law
◆ No middle way between “confederation” and “federal state”
◆ Sovereignty retained by Member States
⇒ EU not a federation BECAUSE its not a state HENCE a confederation and THEREFORE MS
keep sovereignty
, ➔ The EU in light of the American tradition
◆ “Federation of States
◆ Sovereignty split
⇒ US states sovereign in some respects and federal state sovereign in some respects WHICH
according to German tradition does not exist. Therefore “Federation of States”
❖ Why is it important?
→ Various political, cultural and societal reasons
→ Identify ”ultimate authority” in cases of conflict
- What to do when German law says A and EU law says B (EU law has supremacy but
which court has say?)
The principle of conferral
Articles 4(1), 5(1) and (2) TEU
⇒ EU only has competences conferred onto it by MS, competences which were not
transferred are retained by MS.
Compare with Article 70(1) German Basic Law
- “The Länder shall have the right to legislate insofar as this Basic Law does not confer
legislative power on the Federation”
And the 10th Amendment to the US Constitution
- “The powers not delegated to the United States by the Constitution, nor prohibited by it
to the States, are reserved to the States respectively, or to the people”
› Practical implementation: All EU legislative action must be based on a specific
“legal basis” in the Treaties
Choosing the correct legal basis
› Practical application of the principle of conferral
› Constitutional importance
- Which institution(s)…
- can adopt what kind of measure…
- using which procedure?
› How to choose the correct legal basis?
→ Titanium Dioxide: look at “objective factors amenable to judicial review”, in
particular “aim and content of the measure”
,Types of competences
❖ Exclusive competences (Article 3 TFEU)
- e.g. Eurozone monetary policy, some international agreements
❖ Shared competences (Article 4 TFEU)
- e.g. internal market, environment, consumer protection
❖ Coordinating competences (Article 5 TFEU)
- e.g. economic policy, social policy
❖ Complementary competences (Article 6 TFEU)
- e.g. health, education, culture
N.B. These are not Legal Basis’
What is the EU internal market?
Article 26(2) TFEU
→ Four fundamental freedoms = reduce barriers to trade
1. Goods: Articles 28–37 TFEU
2. Persons: Article 21 TFEU, Articles 45–55 TFEU
3. Services: Articles 56–62 TFEU
4. Capital and payments: Articles 63–66 TFEU (not really covered)
› Plus a system of undistorted competition (Protocol No 27)
What is the EU internal market about?
› Buying and selling goods and services throughout the Union
- Plumbers, lawyers, retailers, etc.
- E-commerce
- Mobile data
› Freedom of movement and residence
- Workers
- Self-employed
, - Students
- Non-economically active citizens
› Balancing economic and non-economic values
- Fundamental freedoms vs. fundamental rights
- Economic growth vs. sustainability
- Free enterprise vs. labour
N.B. Prerequisite of free movement across state lines, very aspirational
How to create an internal market?
Schütze: “Dichotomy between the decisions you can take of positive or negative integration”
› Either through positive integration
➢ Adopting EU-wide legislation to create common rules
➢ Also known as “harmonisation”
➢ Always based on a specific legal basis in the Treaty
➢ Replaces national legislation in a certain area
› Or through negative integration
★ Legislator does not need to do anything BECAUSE it is already in the treaty
(Prohibitions)
★ Prohibitions in the Treaty directed at Member States and private parties
★ Directly applicable: does not require legislative action by EU institutions
★ By default, national legislation remains in place, but must not breach Treaty prohibitions
N.B. In the latter can take a law to court and argue that national legislation violates the Treaty
Positive integration: Article 114 TFEU
→ The power to harmonise national legislation
→ Very important Legal Basis
- Article 114(1) TFEU: “Save where otherwise provided in the Treaties, the following
provisions shall apply for the achievement of the objectives set out in Article 26. The
European Parliament and the Council shall, acting in accordance with the ordinary
legislative procedure and after consulting the Economic and Social Committee, adopt the
measures for the approximation of the provisions laid down by law, regulation or
administrative action in Member States which have as their object the establishment and
functioning of the internal market.”
