Summary European Law 2019/2020

European Law Summary 2019 – Week 1
European law
- Primary law (Treaties, Protocols)
o Treaty of European Union
 Contains the ‘constitutional rules’ and CFSP
o Treaty on the Functioning of the European Union
 Makes the constitutional rules work (parts 1 and 6)
 Contains the actual policies of the EU (parts 2-5)
 Protocols
o EU Charter of Fundamental Rights
- Secondary law (Art. 288); Regulations, directives and decisions
- Unwritten law (e.g. general legal principles)
o Proportionality, subsidiarity, legal certainty, equality before the law
- Case law of the CJEU

Relationship between European law and international law
- Treaties are between sovereign states
- Addressees of rights and obligations are states and individuals
- Limitation of rights of states
- Principle of reciprocity not applicable

Characteristics of the “new legal order” – (Van Gend en Loos)
- Autonomous legal order: EU law becomes part of national legislation through MS accession
- Based on: Rule of Law, Fundamental rights
- Effects: Supremacy, Duty of sincere and loyal cooperation

“…. the Community constitutes a new legal order of international law for the benefit of which the
states have limited their sovereign rights, albeit within limited fields, and the subjects of which
comprise not only Member States but also their nationals.”

New legal order – (Costa v ENEL)
- Unlike ordinary international treaties EU law has its own legal system;
- Eu law is an integral part of MS legal systems
- National courts are bound to apply EU law
- Lex posterior rule doesn’t apply
- Can’t be overridden by domestic legal systems
- Consequences:
o Limitation of sovereignty
o Necessary for uniform application of law / necessary for effectiveness
Pragmatic and purposive interpretation of Treaty law

Nature of EU Law: International or constitutional law
- International: Between states, creates horizontal agreements, application monism/dualism
- Constitutional: Directly enforceable rights horizontal and vertical, citizens and state
- EU seen as amalgamation of two spheres through supremacy and doctrine of direct effect

Nature of EU law: Supremacy & Direct effect
- Supremacy: Avoids MS from unilaterally derogating from EU law
- Direct effect: Making EU law directly available for private parties
- The one cannot function without the other: Established in Costa v ENEL

,Direct Effect and Direct applicability
 Direct Applicability: transposition or further implementation is unnecessary
 Direct Effect: Individuals can rely on a provision of Community law before national courts
and administrations
 Not all directly applicable instruments are directly effective

Origins of Direct effect – Van Gend en Loos
1. Court looked to Treaty’s preamble; the spirit / objective of the treaty
2. Court looked at role of individuals under the treaties; instrumental in the legal order
3. Court looked to preliminary ruling procedure, which envisaged to fulfil citizens right to plead
case on points of EU law
ECJ therefore held that if a treaty provision is sufficiently clear, precise and which has the capacity
to confer rights on individuals can be directly invoked before national courts

Private enforcement
- Direct effect when an individual relies on EU law against a conflicting national measure
- Indirect effect: Fleshing out EU law via interpreting national law in light of EU law’s purpose
- Incidental Horizontal effect (imposes no obligation on private party)
- State liability: When the member state has to pay compensation

Direct Effect: Development post Van Gend
- DE of General principles of EU law (Mangold / Kücükdeveci)
o Horizontal and vertical application, can be applied over conflicting national law when
the case falls within the “scope of [other] EU law” i.e. a Directive
o Possible to give untransposed / unexpired Directive DE via general principles
- DE of Charter of Fundamental Rights
o If clear, precise and unconditional, will give Charter article DE (Vertical application)
- DE of Regulations (Leonesio / Munoz)
o No transposition or MS policy discretion. Must be sufficiently clear & precise for DE
- DE of Decisions (Grad): Obligations DE if sufficiently clear and precise
- DE of Directives
o Often vague, ergo issues with directive being precise and sufficiently clear
o General rule: no direct applicability: the result is key
o Aims of legal integration and effectiveness would be lost if Directive had no DE
o ‘Marshall Case’ wording of art. 288 TFEU: “binding on MS” > only vertical application
o ‘Faccini Dori’ case: indiv vs indiv > No horizontal DE of directives

Direct effect of secondary EU law: Focus on Directives
- Default position: No direct effect
- In case of incorrect (or lacking) transposition and after implementation deadline, Directives
begin to act like Regulations and become directly effective under certain conditions.
- Important to look at actor invoking DE
o Vertical DE: private party (PP) against state / state bodies
o Horizontal DE: PP v PP (prohibited) – Faccini Dori / Marshall
o Reverse vertical DE: public authority v PP (prohibited) – Kolpinghuis
o Indirect DE: PP against PP – Von Colson and Kamann
o Triangular Situations (incidental horizontal DE): PP(a) v PP(b) as a result of MS action
in relation to PP(b) – Wells`> imposes no obligation on private party

, Direct Effect of Directives: Rationale
- Functional: Directives are binding law & can be enforced better if individuals can rely on
them
- Textual: Art. 267 TFEU individual active in preliminary ruling procedure
- Estoppel (rati): Prevents Member States from relying on an unimplemented directive to
benefit from their own failure

Loyalty – article 4(3) TEU
- National courts have duty to interpret national law consistently with EU law (4(3) TEU)
- Presumption of compliance
o Member States failing to comply with the law: acquis
o Member States failing to comply with the values: Article 2 TEU
 Legal nature of ‘values’?
 The enforcement of values: Article 7 TEU
 Different procedures of article 7
 De facto impossibility of deployment
o EU doesn’t have general fundamental rights competence:
this means that the commission cannot bring infringement
proceedings against a MS that is violating fundamental
rights unless a connection with EU can be established
 Attempt: ‘rule of law mechanism’
 Enforcement of the law
 Private enforcement (Francovich; Köbler)
 Public enforcement
o By the Commission: Art. 258 TFEU
 (Informal notice)
 Formal notice
 Reasoned opinion
 Action in front of the Court
 Burden of proof
o By Member States: Art. 259 TFEU
 Rarely used provision: outrageous cases
 Starts as 258 TFEU
 MS not bound by Commission’s approaches
o Sanctions: Art. 260 TFEU

Values
EU is founded on fundamental rights, democracy, equality, and the rule of law
 The European Union’s fundamental values are respect for human dignity and human rights,
freedom, democracy, equality and the rule of law. These values unite all the member states
– no country that does not recognise these values can belong to the Union.
 The main goal of the European Union is to defend these values in Europe and promote
peace and the wellbeing of the citizens. For its part, the European Parliament seeks to
ensure that these values are realised in the EU legislation.