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Exam Notes for EU Law B
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01 LEGAL ORDER OF EU1. Primary law of EU
Treaty of Lisbon
Treaty on European Union (TEU)
Treaty of the Functioning of the European Union (TFEU)
Charter of Fundamental Rights of the European Union (CFREU)
Each has the same legal value No hierarchy between them
2. General principles
EU's “acquis”: The body of common rights & obligations that are binding on all MSs
TFEU Art 20: EU citizenship
TEU Art 1: “The MSs establish among themselves a EU (which replaces & succeeds the old European
Community), on which the MSs confer competences to attain objectives they have in common”
TEU Art 2: EU’s values Reference point for all EU policies & actions
TEU Art 3: EU’s aims, objectives & tasks
EU law is an independent & supranational legal order based on the Treaties ( Van Gend en Loos;
Costa v ENEL)
EU laws become part of each MS’s legal system directly / via national implementation
MSs & EU citizens have rights & obligations under the Treaties Direct applicability: EU
nationals can rely directly on the Treaties’ provisions (Van Gend en Loos)
No domestic provision can supersede binding EU law Where there is a conflict between EU
law & domestic law, EU law prevails (Costa v ENEL)
EU law is autonomous as regards international law An international agreement cannot
affect the autonomy of EU’s legal system (Kadi I)
EU’s currency: Euro Shared by 19 MSs
Overview of the Treaties
3. TEU
Replaces & supersedes previous TEU
Establishes EU & sets out its foundational values, aims, principles & institutional framework, including
a special regime for the Common Foreign and Security Policy
TEU Art 6(1): CFREU is incorporated into the Treaties
TEU Art 51: Treaty Protocols form an integral part of the Treaties
TEU Art 50: If a MS gives notice to withdraw from the EU, the Treaties cease to apply to them from the
effective date of withdrawal
4. TFEU
Replaces European Community Treaty (which evolved from European Economic Community)
TFEU Art 1(1): “Organises the functioning of EU & determines the areas of, delimitation of, &
arrangements for exercising its competence” Contains Treaty bases for EU legislation, EU policies
& detailed institutional provisions
Key institutions of EU (TEU Art 13)
5. European Commission – EU’s executive (TEU Art 17; TFEU Arts 244-250)
Consists of 28 commissioners: Appointed by MSs Approved by European Parliament
Promotes EU’s interests
Oversees the application of the Treaties & the measures adopted; May initiate enforcement actions
against non-compliant MSs; Sole initiator of legislative proposals (draft legislative acts) except where
the Treaties provide otherwise
6. Council (“Council of Ministers”) (TEU Art 16; TFEU Arts 237-243)
Consists of ministerial-level representatives of the governments of MSs Represents MSs
Promotes national interests
Exercises legislative & budgetary powers jointly with European Parliament
7. European Council (TEU Arts 15 & 18; TFEU Art 235)
Consists of heads of state / government of 28 MSs
Determines EU’s strategic direction; Exercises leadership
8. European Parliament (TEU Arts 14 & 17; TFEU Arts 223-234)
Consists of 751 members: Directly elected by European citizens Represents EU’s citizens
, Exercises legislative & budgetary powers jointly with Council; Holds European Commission to account
(can pass a no-confidence vote on motions proposed by European Commission)
9. EU courts (CJEU) – EU’s judiciary (TEU Art 19; TFEU Arts 251-281)
Consists of:
Court of Justice (ECJ)
Consists of:
o 28 judges: Chosen from each MS
o 11 Advocates-Generals
Make reasoned submissions on cases in open court
Act with complete impartiality & independence
Issue his opinion in advance of the judgment with detailed legal
analysis of the issues Advisory: Not binding on the court
Deals with preliminary references from national courts, direct actions brought by EU
institutions & appeals from GC on points of law
General Court (GC)
Consists of 47 judges
Deals with actions brought by private parties
Bound by appeal judgments of ECJ
Ensures the uniform application & interpretation of EU law; May review the legality of the acts of EU
institutions
Law-making & democracy in EU
10. Institutional balance in law-making
TEU Art 17(2): With limited exceptions, EU legislative acts may only be adopted based on a European
Commission proposal / draft legislative act
TEU Arts 14(1) & 16(1): Legislative functions are exercised jointly by European Parliament & Council
Voting procedures
Qualified Majority Voting in Council
TEU Art 16(3): QMV is the norm, unless the Treaties provide otherwise
TFEU Art 238(3)(a): 2 conditions must be satisfied
o 55% of MSs vote in favour
o The proposal is supported by MSs representing at least 65% of the total EU
population
o A blocking minority may defeat the proposal The blocking minority must
have at least 4 Council members representing at least 35% of the total EU
population
Proportional system: Weighted votes for each MS based on population Adjusted
depending on the number of MS participating in the policy area
Voting in European Parliament
Normally a majority of votes cast is needed to adopt legislative acts but absolute
majority is required for the amendment / rejection of acts
The number of members from each MS takes into account both the population & size
of the MS
11. Hierarchy of norms: Legislative & non-legislative acts
Legislative acts
TFEU Art 288: Regulations, directives, decisions, recommendations & opinions
TFEU Art 289(3): Instruments adopted by either 1 of the 2 legislative procedures
Subject to full democratic control under the legislative procedures
TFEU Art 296: Legal acts shall state the reasons on which they are based
TFEU Art 291(1): MSs have an obligation to adopt all measures of national law necessary to
implement legally binding EU acts
Legislative acts adopted under the wrong legal basis are susceptible to annulment (Linguistic
Diversity)
Non-legislative acts
TFEU Art 290: Delegated acts adopted by European Commission under powers specified in
legislative acts for the purposes of supplementing / amending certain “non-essential" elements
of a legislative act
Can be revoked by European Parliament & Council
12. Legislative acts
, Regulations
General application Binding in its entirety & directly applicable in all MSs (requires no
implementation)
Confer rights on individuals which the national courts have a duty to protect (Variola)
Directives
Binding as to the result to be achieved upon each MS to which it is addressed Leave to the
national authorities the choice of form & methods (requires implementation)
TFEU Art 297: Deadline to transpose – Typically 2 years
Where directives are not correctly implemented, national courts are bound, as far as is
possible, to interpret national laws in conformity with EU law (Simmenthal)
Decisions
Binding in its entirety Where specified, binding only on those to whom it is addressed
Recommendations & opinions
No binding force
Soft law: Rules of conduct; Persuasive; Seek to ensure compliance without a binding
obligation
13. Legislative procedures
The applicable procedure depends on the legal basis for the legislative act in question
Ordinary legislative procedure (“co-decision”) The default procedure
TFEU Art 289: The joint adoption of legislative acts by European Parliament and Council on a
proposal from European Commission
TFEU Art 294: 1st reading 2nd reading 3rd reading
Key features: Joint agreement between European Parliament & Council; Doubt veto of
European Parliament; Assent of Council; Conciliation Committee
Special legislative procedures Only used where provided by the Treaties
2 types: Consultation / Assent
14. Representative & participatory democracy
TEU Arts 2 & 3(1): Democracy is 1 of the values of EU & which it has the aim of promoting
TEU Arts 9-12: Democratic principles
Representative democracy: Increasing the involvement of national parliaments
TEU Art 12; Protocol No 1: Empowers national parliaments in pre-legislative & legislative
stages
Participatory democracy: Increasing the participation of the wider civil society
TEU Art 10(3): Every citizen has the right to participate in the democratic life of EU
TEU Art 11(1-2): Achieved through dialogue with representative groups & civil society
TEU Art 11(4): Citizens’ initiative – 1 million signatures to demand European Commission to
propose an EU legal act E-petitions
02 PRIMACY OF EU LAW & FUNDAMENTAL RIGHTS
15. Principle of primacy of EU law
EU law, within the fields where sovereign power has been conferred on EU, is supreme over national
law & penetrates into national legal orders (Costa v ENEL)
Applies even where national constitutions may provide a higher protection of fundamental rights, as
long as the EU rule in question is compatible with CFREU (Melloni)
Duty on MSs to guarantee full & uniform application of an EU rule from its date of entry in force
(Filipak; Kapferer)
Declaration No 17: An “explicit endorsement” of the primacy principle
UK’s approach: Constitutional tolerance
Parliament limited sovereignty voluntarily in ECA 1972 Directly enforceable rules of EU law
override conflicting rules of national law (Factortame)
, 16. Duty of fidelity
TEU Art 4(3): Based on the principle of sincere cooperation / solidarity MSs have a positive duty to
“facilitate the achievement of EU’s tasks & refrain from any measure which could jeopardise the
attainment of EU’s objectives” (Spanish Strawberries)
National courts must ensure that penalties for breaches of EU law are effective, proportionate &
dissuasive (Berlusconi)
Closely related to the duty of mutual trust between MSs based on the principle of equality between
MSs under TEU Art 4(2)
Competences of EU: Conferred powers
17. Doctrine of pre-emption
EU has areas in which it may legislate exclusively (MSs are no longer able to legislate in these fields
once they have joined the EU) / on the basis of competence shared with the MSs
TFEU Arts 3 & 4: Lists of areas of exclusive & shared competence respectively
TFEU Art 2: Once EU wholly occupies a field of competence (exclusive / shared) under its conferred
powers, the MSs are pre-empted from acting in that area To pre-empt conflicts over whether EU
should act alone / whether there is room for separate actions by the MSs
Areas of exclusive competence: Pre-emption applies fully
Areas of shared competence: Pre-emption is not automatic Both EU & the MSs have competence
but “MSs shall exercise their competence to the extent that EU has not exercised its competence”
Most EU legislative acts only provide for minimum harmonisation / can be interpreted as
allowing the MSs some discretion as long as their actions are consistent with the objectives of
the particular EU rule / broader EU objectives (Wild Birds)
18. Limits & use of EU competences
TEU Art 5: Stages of EU competences
(1) Principle of conferral: Establishes the limits of EU’s legal authority to act
(2) Principles of subsidiarity & proportionality: The conditions for the use of that legal authority
commensurate with the objectives of the Treaties
19. Stage (1): Principle of conferral
TEU Art 5: The limits of EU competences are governed by the principle of conferral Under the
principle of conferral, EU shall act only within the limits of the competences conferred upon it by the
MSs in the Treaties to attain the objectives set out
TEU Art 13(2): Each institution shall act within the limits of the powers conferred on it in the Treaties”
TEU Art 4(1): In the absence of an adequate legal basis in the Treaties, competences remain with the
MSs
Treaty provisions that grant such competence are known as “legal basis” provisions
Specific legal basis provisions (e.g. TFEU Art 192 – Protection of the environment)
General legal basis provisions
TFEU Art 114: “Harmonisation clause” – Measures for the approximation of common
standards across the internal market
o TFEU Art 114 is broad but does not create a general power to regulate the
internal market Measures must either genuinely have their objective set on
improving market conditions, / must remove existing / future obstacles to inter-
state trade (Tobacco Advertising I Tobacco Advertising II)
TFEU Art 352: “General powers clause” / “Flexibility clause” – Allows for general
measures but only where necessary for the attainment of the objectives of EU
o Where there is a choice of legal bases, the most specific to attain the
objective must be used Where there is no alternative / more specific legal
basis available the court must determine whether the measure is necessary to
attain 1 of the objectives in the Treaties (Kadi I)
20. Stage (2): Principle of subsidiarity (Protocol No 2)
TEU Art 5(3): Determines whether EU action is to be exercised – In areas which do not fall within its
exclusive competence, EU shall act only if & in so far as the objectives of the proposed action cannot
be sufficiently achieved by the MSs, at central level / at regional & local level, but can rather, due to
the scale / effects of the proposed action, be better achieved at EU level Creates a presumption in
favour of decentralisation & self-government (Working Time)
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