Law of the European Union
Summary Guide
,WEEK 1: The Internal Market
Concept: The Basic Principles
Supremacy:
Simmenthal:
○ In line with the principle of supremacy of EU law, any conflicting national measure with
EU law is rendered inapplicable and the adoption of a new national law in conflict with
EU law is prohibited.
Direct effect:
Van gend & loos:
○ Established direct effect for individuals to impose against the state (treaty provisions +
fundamental rights, regulations, decisions, directives)
○ Criteria:
■ Sufficiently clear & unconditional.
No Horizontal direct effect + inverse vertical direct effect:
Marshall:
○ Directives as such cannot be invoked against individuals.
○ So no individual vs individual or state against individual (inverse vertical direct effect).
Indirect effect i.e. the ‘interpretive obligation’ of National Courts:
Marleasing:
○ An unimplemented directive could be relied on to influence the interpretation of national
law in a case between individuals.
○ Duty of MS under art 4(3) i.e. the principle of sincere cooperation to comply with the
obligation of ‘harmonious interpretation’.
Pfeiffer:
○ The Court reiterates that directives as such cannot have horizontal direct effect but MS
have an ‘interpretative obligation’.
○ MS have a duty to ensure the ‘effectiveness’ of EU law, namely in this case the directive.
State liability:
Brasserie:
○ Three conditions to invoke state liability:
■ Sufficiently serious breach of EU law by MS
■ Breached provision of EU law aims to provide rights to individuals
■ Causal link between breach and damages
Concept: Positive integration
Relevant legislation:
Art 114: Harmonizing the internal market
● A residual provision
,● Does not apply to fiscal provisions, those relating to the free movement of persons and to those
relating to the rights & interest of employed persons → felt to be sensitive by MS.
Tobacco advertising I case:
● Issue: ECJ struck down the directive designed to harmonize the law relating to the
advertising and sponsorship of tobacco products.
● Court:
○ The aim of art 114 is to harmonize national laws for the promotion of the internal
market.
○ Use of art 114 conditions:
■ Disparities between national laws + risk of exercise of fundamental
freedoms is not enough, there needs to be a clear obstacle that hampers
trade.
■ Must prove that art 114 is being used to promote the conditions for the
establishment of the internal market & only then can supporting
competences come into play.
■ The measure enacted under art 114 pursues the objective stated.
○ In this case, the use of art 114 was inappropriate as the center of gravity lied in
the protection of consumer health but it should be the internal market.
○ Art 114 did not give any general power of market regulation which would be
contrary to the principle of conferral as highlighted in art 5(2).
, WEEK 2: Free movement of goods & services
Concept: Free movement of goods
Structure of art 34 TFEU:
1. Jurisdiction
○ Does EU law apply to this case?
2. Material scope of art 34
○ What are goods?
3. Direct effect & Personal scope?
○ Art 34 has vertical direct effect but no horizontal direct effect.
4. Restriction
○ Is there a restriction to the free movement of goods?
■ Basically identify if the ‘restriction’ constitutes a ‘certain selling arrangement’ or
an MEE.
1. Direct + indirect discrimination are always MEE’s
2. Indistinctly applicable measures are also MEE’s
3. Certain selling arrangements are not MEE’s
■ If it is an MEE, move on to justifications.
5. Justification
○ Grounds of justification under art 36 TFEU
■ Apply proportionality test:
1. Suitability: is the measure suitable/appropriate to attain its purpose (i.e.
the ground of justification)?
2. Necessity: Are there any less restrictive alternatives?
3. Proportionality: does the measure lead to disproportionate effects on
trade(rs)? (Usually the court only applies suitability & necessity unless
balancing with a fundamental right is required)
○ Mandatory requirements
■ Only apply to indstinctly applicable measures not direct discirmination.
Legislation:
Art 28 TFEU: Goods in free circulation from third countries
“1. The Union shall comprise a customs union which shall cover all trade in goods and which shall
involve the prohibition between Member States of customs duties on imports and exports and of all
charges having equivalent effect, and the adoption of a common customs tariff in their relations with third
countries.
2. The provisions of Article 30 and of Chapter 3 of this Title shall apply to products originating in
Member States and to products coming from third countries which are in free circulation in Member
States.”
Art 30 TFEU: Customs duties & CEEs
“Customs duties on imports and exports and charges having equivalent effect shall be prohibited between
Member States. This prohibition shall also apply to customs duties of a fiscal nature.”
Summary Guide
,WEEK 1: The Internal Market
Concept: The Basic Principles
Supremacy:
Simmenthal:
○ In line with the principle of supremacy of EU law, any conflicting national measure with
EU law is rendered inapplicable and the adoption of a new national law in conflict with
EU law is prohibited.
Direct effect:
Van gend & loos:
○ Established direct effect for individuals to impose against the state (treaty provisions +
fundamental rights, regulations, decisions, directives)
○ Criteria:
■ Sufficiently clear & unconditional.
No Horizontal direct effect + inverse vertical direct effect:
Marshall:
○ Directives as such cannot be invoked against individuals.
○ So no individual vs individual or state against individual (inverse vertical direct effect).
Indirect effect i.e. the ‘interpretive obligation’ of National Courts:
Marleasing:
○ An unimplemented directive could be relied on to influence the interpretation of national
law in a case between individuals.
○ Duty of MS under art 4(3) i.e. the principle of sincere cooperation to comply with the
obligation of ‘harmonious interpretation’.
Pfeiffer:
○ The Court reiterates that directives as such cannot have horizontal direct effect but MS
have an ‘interpretative obligation’.
○ MS have a duty to ensure the ‘effectiveness’ of EU law, namely in this case the directive.
State liability:
Brasserie:
○ Three conditions to invoke state liability:
■ Sufficiently serious breach of EU law by MS
■ Breached provision of EU law aims to provide rights to individuals
■ Causal link between breach and damages
Concept: Positive integration
Relevant legislation:
Art 114: Harmonizing the internal market
● A residual provision
,● Does not apply to fiscal provisions, those relating to the free movement of persons and to those
relating to the rights & interest of employed persons → felt to be sensitive by MS.
Tobacco advertising I case:
● Issue: ECJ struck down the directive designed to harmonize the law relating to the
advertising and sponsorship of tobacco products.
● Court:
○ The aim of art 114 is to harmonize national laws for the promotion of the internal
market.
○ Use of art 114 conditions:
■ Disparities between national laws + risk of exercise of fundamental
freedoms is not enough, there needs to be a clear obstacle that hampers
trade.
■ Must prove that art 114 is being used to promote the conditions for the
establishment of the internal market & only then can supporting
competences come into play.
■ The measure enacted under art 114 pursues the objective stated.
○ In this case, the use of art 114 was inappropriate as the center of gravity lied in
the protection of consumer health but it should be the internal market.
○ Art 114 did not give any general power of market regulation which would be
contrary to the principle of conferral as highlighted in art 5(2).
, WEEK 2: Free movement of goods & services
Concept: Free movement of goods
Structure of art 34 TFEU:
1. Jurisdiction
○ Does EU law apply to this case?
2. Material scope of art 34
○ What are goods?
3. Direct effect & Personal scope?
○ Art 34 has vertical direct effect but no horizontal direct effect.
4. Restriction
○ Is there a restriction to the free movement of goods?
■ Basically identify if the ‘restriction’ constitutes a ‘certain selling arrangement’ or
an MEE.
1. Direct + indirect discrimination are always MEE’s
2. Indistinctly applicable measures are also MEE’s
3. Certain selling arrangements are not MEE’s
■ If it is an MEE, move on to justifications.
5. Justification
○ Grounds of justification under art 36 TFEU
■ Apply proportionality test:
1. Suitability: is the measure suitable/appropriate to attain its purpose (i.e.
the ground of justification)?
2. Necessity: Are there any less restrictive alternatives?
3. Proportionality: does the measure lead to disproportionate effects on
trade(rs)? (Usually the court only applies suitability & necessity unless
balancing with a fundamental right is required)
○ Mandatory requirements
■ Only apply to indstinctly applicable measures not direct discirmination.
Legislation:
Art 28 TFEU: Goods in free circulation from third countries
“1. The Union shall comprise a customs union which shall cover all trade in goods and which shall
involve the prohibition between Member States of customs duties on imports and exports and of all
charges having equivalent effect, and the adoption of a common customs tariff in their relations with third
countries.
2. The provisions of Article 30 and of Chapter 3 of this Title shall apply to products originating in
Member States and to products coming from third countries which are in free circulation in Member
States.”
Art 30 TFEU: Customs duties & CEEs
“Customs duties on imports and exports and charges having equivalent effect shall be prohibited between
Member States. This prohibition shall also apply to customs duties of a fiscal nature.”
