European Union Law
Table Of Contents
HISTORY OF EUROPEAN INTEGRATION........................................1
INSTITUTIONS OF THE UNION.....................................................4
COMPETENCES.......................................................................... 7
LAWS AND LAWMAKING...........................................................10
DIRECT EFFECT AND PRIMACY..................................................13
THE DEVELOPMENT OF PRIMACY.............................................15
GENERAL PRINCIPLES OF EU LAW AND FUNDAMENTAL RIGHTS...18
THE APPLICATION OF EU LAW IN NATIONAL LEGAL SYSTEMS.....20
PRELIMINARY REFERENCES......................................................23
INFRINGEMENT PROCEEDINGS..................................................26
ANNULMENT ACTIONS.............................................................29
INTRODUCTION TO THE INTERNAL MARKET AND THE FREE
MOVEMENT OF GOODS............................................................32
ARTICLE 2 AND THE RULE OF LAW CRISIS..................................35
ESTABLISHMENT AND SERVICES...............................................39
FREE MOVEMENT OF WORKERS................................................42
EU Citizenship......................................................................... 45
Accession and Withdrawal.......................................................48
The Law of EU External Relations.............................................49
HISTORY OF EUROPEAN INTEGRATION
What is now the European Union and its legal order (EU law) is part of a wider process called
European Integration, which began in the 1950s. The process of European integration is thought to
encompass the economic, socio-political, and legal domains. These are not mutually exclusive but
rather capture the different stages and dimensions of the EU’s development:
Economic integration: creation of a common market with an area of free trade, and the
establishment of a customs union with common external tariffs. This also requires the adoption of
common rules and extensive coordination over economic policies.
Legal integration: establishment of a system of norms that bind EU institutions and Member States
the progressive adaptation of the national legal systems to the requirements of EU law, favoured
by the reciprocal interaction between legal orders. In EU law, we can distinguish between positive
and negative legal integration:
Positive integration: the harmonisation of legislation with the adoption of positive EU law.
This is often made difficult by the fact that it requires political agreement amongst the
heterogenous Member States, which may come to disagree on policy matters. In recent
years it has been suggested that positive integration has played a much larger role in the
, EU’s development.
Negative integration: has often been regarded as the default mechanism of integration for
most of the EU’s existence, whereby the process of legal integration advances through the
removal of obstacles to trade, free movement, and other aspects of integration.
Political integration: the establishment of forms of political cooperation, the creation of a system of
shared governance and of common institutions for decision-making, and the development of a
common political culture, identity, and sense of social belonging.
These three dimensions have progressively emerged in the EU as a result of its evolution. While the
EU was initially centred around the goal of achieving economic integration, it gradually
incorporated legal and even socio-political elements.
There are many competing theories of how European integration has emerged: neo-functionalism,
intergovernmentalism, multi-level governance, and post-functionalism.
Neo-functionalism
According to this theory, further integration among the Member States is achieved gradually and
incrementally, particularly thanks to the phenomenon of ‘spill-over’: the circumstance in which the
pursuit of an original objective demands further integration.
In the neo-functionalist view, the EU is primarily a creature of elites, and it is assumed that further
integration may be decided without encountering any significant popular opposition, through a
‘permissive consensus’. This is connected to another tenet of thought -- the more a society
progresses, the less ideological it will become, leaving behind political conflicts and old ideologies
such as nationalism.
This theory was particularly influential in the early stages of the process of integration, it
has since received widespread criticism and was largely discounted at the end of the 1960s
for its alleged inability to explain further stages in the process of European integration,
although it still holds some resonance among contemporary scholars.
Intergovernmentalism
Developed in the mid-1960s to explain the process of European integration as the convergence of
national interests and the will of Member States to cooperate. This understanding of the process is
inspired by international relations theories and responds to the logic of international law; to the
extent that it assumes that States determines the outcome and process of integration.
Became especially popular during the 70s and 80s; in the 90s it was developed in its liberal
form, according to which national governments will seek to cooperate at the European level
in order to safeguard and advance their own interests through a process of national
preference formation, interstate bargaining, and institutional choice.
It is both a theory of integration and a method of decision-making in the EU’s institutional
architecture.
Multilevel Governance
Emerged during the 90s to make sense of the increasingly central role of regions in the EU’s
governance, alongside Member States and EU institutions. It developed as an alternative to the
dichotomy between neo-functionalism and inter-governmentalism. It challenges the state-centric
approach of the latter by emphasising the role that non-central state authorities and non-
governmental organisations play in the process of European integration.
,Post-functionalism
Developed in the 2010s, according to which the process of European integration has become
increasingly politicised, meaning that it can only be explained by reference to public opinions and
party politics.
In refuting the idea that the process is an elite-driven one, this theory argues that we have moved
from the neo-functionalist permissive consensus to a post-functionalist constraining dissensus, with
the emergence of backlash against integration generated by resilient national identities and even
nationalist and populist ideologies.
Integration so far
Typically understood in terms of a process that tends towards the ultimate objective of an ever-
closer Europe. In doing so, it has often been defined as a necessarily unfinished journey, something
to constantly aspire to and guide the extension of the scope of EU law to new areas and
geographical expansion of the EU through the addition of new Member States.
This process of integration has been found to advance through two main forces:
1. The emergence of crisis: we see from the history of the EU that crises often play a
propelling role in the advancement of EU integration
2. The negotiation of Treaties among the Member States: history of the EU is a story of
successive Treaties.
European integration can be divided up into four historical phases: Paris to Rome; Rome to
Maastricht; Maastricht to Lisbon; and the Poly-crisis.
Paris to Rome: the fear of war in the establishment of the EU project after World War II
emerged in the Schuman Declaration of 1950. This proposed the creation of the
European Coal and Steel Community, which was then established through the Treaty
of Paris (1951). This involved 6 founding Member States and envisioned the creation
of High Authority (the Commission), Assembly (Parliament), Council, and the Court of
Justice.
In 1954 there was an attempt to create a European Defence Community (EDC) with a
European Political Community (EPC), but this was rejected by the French Parliament,
putting a halt on political integration. After 1954, in preparation of the Treaties of
Rome, the emphasis was fully on economic integration -- the sectoral approach gave
way to a far wider ambition: a common market in goods, services, workers, and capital.
o The Rome Treaties established both Euratom (pooling nuclear energy) and the
European Economic Community (EEC)
Rome to Maastricht: this period was characterised by several crises, a series of
economic and political tensions linked to broader global events -- various oil crises,
economic ‘stagflation’, and the Cold War. The Treaties remained relatively stable during
this time, although significant revisions were carried out in both an informal and formal
fashion.
o Luxembourg Compromise (1966) altered the content of the Rome Treaties
without undergoing any formal Treaty change process. It was negotiated
outside of the Treaty framework among the Member States, constituting an
example of intergovernmentalism in action.
o Merger Treaty (1967) merged the executive bodies of the European
Communities into a single Commission and established a single Council of
European Communities, adoption of the 1986 Single European Act. This was
the first major revision of the Community Treaties since 1957 and was largely
, oriented at turning the common market (internal market) into a reality. It
signified a new breakthrough in economic integration.
There were also significant developments in legal integration, largely achieved through
the case law of the Court of Justice of the European Union. The role of the CJEU in
favouring legal integration remained crucial throughout the 70s and 80s, especially
through a series of cases which favoured negative integration in removing obstacles to
the free movements.
Maastricht to Lisbon: world was undergoing a series of transformations and serious
political tensions. Treaty of Maastricht (1992, 1993) officially created the European
Union and was seen as both a response to crisis and a source of crisis for the EU. While
it addresses the crisis of the State, it also creates a wave of Euroscepticism. In
amending the existing institutional framework, the Maastricht Treaty incorporated the
communities into a three-pillar structure (the Communities; Common Foreign and
Security Policy; Justice and Home Affairs, Police and Judicial, Cooperation in Criminal
Matters).
o The Treaties were amended by the Treaty of Amsterdam (1999) and Treaty
of Nice (2001). The basic constitutional architecture remains unchanged
though. The Treaty of Lisbon was then signed, which carried over some of
the key institutional innovations of the Draft Constitutional Treaty (2004)
whilst distancing itself from the more constitutional symbolism.
o There are now two treaties: the Treaty on European Union and the Treaty
on the Functioning of the European Union. The pillar system is formally
collapsed, but endures in the Common Foreign and Security Policy, which is
governed by the TEU.
Overall, the developments since the Maastricht Treaty mark a distinct move
towards the goal of political integration.
Poly-crisis: EU has recently become subject to crisis-events (financial and sovereign
debt, 2015 refugee crisis, Brexit, Covid, emergence of security threats). As such, the
last 15 years have often been discussed in terms of an EU poly-crisis, but no major
Treaty revisions have been carried out in response.
The EU’s legal and political development has increasingly been carried out through processes of
informal change or constitutional mutation, intergovernmental agreement, and legal engineering.
There has been the emergence of talks of EU dis-integration, partially in response to the first case
of withdrawal from the EU on the part of a Member State. The threat of disintegration has often
been raised in relation to cases of implicit withdrawal, where Member States fail to comply with
and uphold EU law and its founding values.
INSTITUTIONS OF THE UNION
The institutions of the EU are listed in Article 13 of the Treaty of the European Union. The
division of powers and competences among EU institutions are not the same as the separation of
powers we see in the nation-State tradition. In the context of the EU, the expression ‘institutional
balance’ is preferred.
Separation of Powers: popular doctrine typically associated with political theorists that
public power should be distributed among three principle branches: the executive, the
judicial, and the legislative, and that there should be very little/no overlap between
members, functions, and powers of each branch. This system is thought to create a
series of checks and balances that prevent tyranny and avoid the concentration of
power in the hands of the few.
Institutional Balance: traditional separation of powers doctrine does not help us
understand the role and functioning of EU institutions. Many duties are shared between
Table Of Contents
HISTORY OF EUROPEAN INTEGRATION........................................1
INSTITUTIONS OF THE UNION.....................................................4
COMPETENCES.......................................................................... 7
LAWS AND LAWMAKING...........................................................10
DIRECT EFFECT AND PRIMACY..................................................13
THE DEVELOPMENT OF PRIMACY.............................................15
GENERAL PRINCIPLES OF EU LAW AND FUNDAMENTAL RIGHTS...18
THE APPLICATION OF EU LAW IN NATIONAL LEGAL SYSTEMS.....20
PRELIMINARY REFERENCES......................................................23
INFRINGEMENT PROCEEDINGS..................................................26
ANNULMENT ACTIONS.............................................................29
INTRODUCTION TO THE INTERNAL MARKET AND THE FREE
MOVEMENT OF GOODS............................................................32
ARTICLE 2 AND THE RULE OF LAW CRISIS..................................35
ESTABLISHMENT AND SERVICES...............................................39
FREE MOVEMENT OF WORKERS................................................42
EU Citizenship......................................................................... 45
Accession and Withdrawal.......................................................48
The Law of EU External Relations.............................................49
HISTORY OF EUROPEAN INTEGRATION
What is now the European Union and its legal order (EU law) is part of a wider process called
European Integration, which began in the 1950s. The process of European integration is thought to
encompass the economic, socio-political, and legal domains. These are not mutually exclusive but
rather capture the different stages and dimensions of the EU’s development:
Economic integration: creation of a common market with an area of free trade, and the
establishment of a customs union with common external tariffs. This also requires the adoption of
common rules and extensive coordination over economic policies.
Legal integration: establishment of a system of norms that bind EU institutions and Member States
the progressive adaptation of the national legal systems to the requirements of EU law, favoured
by the reciprocal interaction between legal orders. In EU law, we can distinguish between positive
and negative legal integration:
Positive integration: the harmonisation of legislation with the adoption of positive EU law.
This is often made difficult by the fact that it requires political agreement amongst the
heterogenous Member States, which may come to disagree on policy matters. In recent
years it has been suggested that positive integration has played a much larger role in the
, EU’s development.
Negative integration: has often been regarded as the default mechanism of integration for
most of the EU’s existence, whereby the process of legal integration advances through the
removal of obstacles to trade, free movement, and other aspects of integration.
Political integration: the establishment of forms of political cooperation, the creation of a system of
shared governance and of common institutions for decision-making, and the development of a
common political culture, identity, and sense of social belonging.
These three dimensions have progressively emerged in the EU as a result of its evolution. While the
EU was initially centred around the goal of achieving economic integration, it gradually
incorporated legal and even socio-political elements.
There are many competing theories of how European integration has emerged: neo-functionalism,
intergovernmentalism, multi-level governance, and post-functionalism.
Neo-functionalism
According to this theory, further integration among the Member States is achieved gradually and
incrementally, particularly thanks to the phenomenon of ‘spill-over’: the circumstance in which the
pursuit of an original objective demands further integration.
In the neo-functionalist view, the EU is primarily a creature of elites, and it is assumed that further
integration may be decided without encountering any significant popular opposition, through a
‘permissive consensus’. This is connected to another tenet of thought -- the more a society
progresses, the less ideological it will become, leaving behind political conflicts and old ideologies
such as nationalism.
This theory was particularly influential in the early stages of the process of integration, it
has since received widespread criticism and was largely discounted at the end of the 1960s
for its alleged inability to explain further stages in the process of European integration,
although it still holds some resonance among contemporary scholars.
Intergovernmentalism
Developed in the mid-1960s to explain the process of European integration as the convergence of
national interests and the will of Member States to cooperate. This understanding of the process is
inspired by international relations theories and responds to the logic of international law; to the
extent that it assumes that States determines the outcome and process of integration.
Became especially popular during the 70s and 80s; in the 90s it was developed in its liberal
form, according to which national governments will seek to cooperate at the European level
in order to safeguard and advance their own interests through a process of national
preference formation, interstate bargaining, and institutional choice.
It is both a theory of integration and a method of decision-making in the EU’s institutional
architecture.
Multilevel Governance
Emerged during the 90s to make sense of the increasingly central role of regions in the EU’s
governance, alongside Member States and EU institutions. It developed as an alternative to the
dichotomy between neo-functionalism and inter-governmentalism. It challenges the state-centric
approach of the latter by emphasising the role that non-central state authorities and non-
governmental organisations play in the process of European integration.
,Post-functionalism
Developed in the 2010s, according to which the process of European integration has become
increasingly politicised, meaning that it can only be explained by reference to public opinions and
party politics.
In refuting the idea that the process is an elite-driven one, this theory argues that we have moved
from the neo-functionalist permissive consensus to a post-functionalist constraining dissensus, with
the emergence of backlash against integration generated by resilient national identities and even
nationalist and populist ideologies.
Integration so far
Typically understood in terms of a process that tends towards the ultimate objective of an ever-
closer Europe. In doing so, it has often been defined as a necessarily unfinished journey, something
to constantly aspire to and guide the extension of the scope of EU law to new areas and
geographical expansion of the EU through the addition of new Member States.
This process of integration has been found to advance through two main forces:
1. The emergence of crisis: we see from the history of the EU that crises often play a
propelling role in the advancement of EU integration
2. The negotiation of Treaties among the Member States: history of the EU is a story of
successive Treaties.
European integration can be divided up into four historical phases: Paris to Rome; Rome to
Maastricht; Maastricht to Lisbon; and the Poly-crisis.
Paris to Rome: the fear of war in the establishment of the EU project after World War II
emerged in the Schuman Declaration of 1950. This proposed the creation of the
European Coal and Steel Community, which was then established through the Treaty
of Paris (1951). This involved 6 founding Member States and envisioned the creation
of High Authority (the Commission), Assembly (Parliament), Council, and the Court of
Justice.
In 1954 there was an attempt to create a European Defence Community (EDC) with a
European Political Community (EPC), but this was rejected by the French Parliament,
putting a halt on political integration. After 1954, in preparation of the Treaties of
Rome, the emphasis was fully on economic integration -- the sectoral approach gave
way to a far wider ambition: a common market in goods, services, workers, and capital.
o The Rome Treaties established both Euratom (pooling nuclear energy) and the
European Economic Community (EEC)
Rome to Maastricht: this period was characterised by several crises, a series of
economic and political tensions linked to broader global events -- various oil crises,
economic ‘stagflation’, and the Cold War. The Treaties remained relatively stable during
this time, although significant revisions were carried out in both an informal and formal
fashion.
o Luxembourg Compromise (1966) altered the content of the Rome Treaties
without undergoing any formal Treaty change process. It was negotiated
outside of the Treaty framework among the Member States, constituting an
example of intergovernmentalism in action.
o Merger Treaty (1967) merged the executive bodies of the European
Communities into a single Commission and established a single Council of
European Communities, adoption of the 1986 Single European Act. This was
the first major revision of the Community Treaties since 1957 and was largely
, oriented at turning the common market (internal market) into a reality. It
signified a new breakthrough in economic integration.
There were also significant developments in legal integration, largely achieved through
the case law of the Court of Justice of the European Union. The role of the CJEU in
favouring legal integration remained crucial throughout the 70s and 80s, especially
through a series of cases which favoured negative integration in removing obstacles to
the free movements.
Maastricht to Lisbon: world was undergoing a series of transformations and serious
political tensions. Treaty of Maastricht (1992, 1993) officially created the European
Union and was seen as both a response to crisis and a source of crisis for the EU. While
it addresses the crisis of the State, it also creates a wave of Euroscepticism. In
amending the existing institutional framework, the Maastricht Treaty incorporated the
communities into a three-pillar structure (the Communities; Common Foreign and
Security Policy; Justice and Home Affairs, Police and Judicial, Cooperation in Criminal
Matters).
o The Treaties were amended by the Treaty of Amsterdam (1999) and Treaty
of Nice (2001). The basic constitutional architecture remains unchanged
though. The Treaty of Lisbon was then signed, which carried over some of
the key institutional innovations of the Draft Constitutional Treaty (2004)
whilst distancing itself from the more constitutional symbolism.
o There are now two treaties: the Treaty on European Union and the Treaty
on the Functioning of the European Union. The pillar system is formally
collapsed, but endures in the Common Foreign and Security Policy, which is
governed by the TEU.
Overall, the developments since the Maastricht Treaty mark a distinct move
towards the goal of political integration.
Poly-crisis: EU has recently become subject to crisis-events (financial and sovereign
debt, 2015 refugee crisis, Brexit, Covid, emergence of security threats). As such, the
last 15 years have often been discussed in terms of an EU poly-crisis, but no major
Treaty revisions have been carried out in response.
The EU’s legal and political development has increasingly been carried out through processes of
informal change or constitutional mutation, intergovernmental agreement, and legal engineering.
There has been the emergence of talks of EU dis-integration, partially in response to the first case
of withdrawal from the EU on the part of a Member State. The threat of disintegration has often
been raised in relation to cases of implicit withdrawal, where Member States fail to comply with
and uphold EU law and its founding values.
INSTITUTIONS OF THE UNION
The institutions of the EU are listed in Article 13 of the Treaty of the European Union. The
division of powers and competences among EU institutions are not the same as the separation of
powers we see in the nation-State tradition. In the context of the EU, the expression ‘institutional
balance’ is preferred.
Separation of Powers: popular doctrine typically associated with political theorists that
public power should be distributed among three principle branches: the executive, the
judicial, and the legislative, and that there should be very little/no overlap between
members, functions, and powers of each branch. This system is thought to create a
series of checks and balances that prevent tyranny and avoid the concentration of
power in the hands of the few.
Institutional Balance: traditional separation of powers doctrine does not help us
understand the role and functioning of EU institutions. Many duties are shared between
