LECTURE 1: INTRODUCTION + THE TRANSITION IN THE EU INSTITUTIONS
FOLLOWING THE EUROPEAN ELECTIONS
Readings: assigned documents + court case
INTRODUCTION
1. WORKING METHOD AND OBJECTIVES OF COURSE
• Teaching team
• Teaching method, materials (Calendar, Treaties, Readings + Toledo)
• visit ECJ
• objectives of course → approach of final (written, open book) exam
- A combination of essay questions and cases
- Open book (work with all the material) ➔ study like any other course!
2. WHAT IS "CONSTITUTIONAL LAW OF THE EU"?
• Constitution law of EU is a very strange term as it does not exist. If we talk about EU law
o you have legislation made by the EU institutions (Commission, EP, and Council).
o Implementing acts
o Delegated acts/executive acts
▪ This EU law does have primacy above the national law; however, they
cannot be considered as EU Constitution.
▪ CJEU
• Constitutional law of EU does exist! With this course, we’re pretending that CLEU does
exist. That EU itself is based on a constitution.
Is the title descriptive or normative?
• It is both descriptive and normative. There is a body of law that is called the Constitution and
the CJEU has recognized that. But there have been tensions since each MS also has their own
constitution (just a basic foundation; doesn’t necessarily have to be a text).
The EU does not have a constitution with that name…
• There is no EU document with the specific name of a ‘constitution’, although there almost
was one. There was a failed constitutional program in 2003-2004 after the Nice Treaty.
o “The Treaty establishing the Constitution for Europe” which was submitted for
ratification in all the member states and then in some member states there were
referenda and both in the Netherlands and in France you had negative referenda (so
referenda with a negative outcome).
o The aim was to replace the pre-existing treaties (amending the EC and EU treaty)
which formed the basis of EU, to have a text called the Constitution of Europe. A
treaty can only be modified by another treaty.
• There were a lot of referenda held in the MS but in the end a lot of MS said NO to the EU
Constitution. The failed constitutional program led in the end to the adoption of the Lisbon
Treaty.
• A lot of discussions on this front; some MS say the EU can only exist thanks/due to the
(constitutions of the) MS. What is now essential to have a constitution?
o Fundamental rights
1
, o Balance/control between the political parties/rule of law
• Rule of law: ensure that all the authorities obey the law.
o You need an independent authority to check whether other
institution authorities behave within the constitutional
framework.
▪ Legislation
▪ Executive
▪ Judicial
• A lot of discussions about the legal basis, the highest norm and primacy of law. It is difficult
for the EU since it is based on the principle of primacy of EU law and advocates for uniform
application of it in all MS. A clash forms when MS say that their national constitution is the
highest norm. Primacy should be in the treaties, but it’s not expressed in the treaties.
However, it has been conferred in the
but the Treaties have a constitutional function for the EU legal order:
There are perceived as together with the Charter being the constitution of the EU. EU is still working
with the Treaties, new provisions still need to be approved, signed and ratified by all the MS so their
independence is being respected.
1. basic rules for functioning of EU
− law-making “OLP”:
− This is the default decision making process of the EU. The Parliament and
the Council are co-legislators, and they need to agree on a proposal of the
Commission. This procedure has formed the legal basis of most of the
existing EU law.
− Implementation + enforcement of law
− When MS can’t enforce or uniformity is needed, the implementation and
enforcement of law is done by the Commission. Besides, the Commission
has also the discretionary power to make law when needed.
− Role for judicial branch
− EU exercises this role through the Court of Justice of the European Union
(CJEU), together with the national courts. This is the embodiment of the
separation of powers, a concept introduced by Montesquieu.
• Judicial protection
• Infringement actions against MS
• Preliminary ruling procedure
2. Basic rights for ‘legal subjects’
3. Federalism: relationship between EU and Member States
− Although all these basis rules of functioning of the EU exist, we still except more
from a constitution, namely fundamental rights, which can be found in the Charter
and are needed to protect citizens against the State, and shared values, which can
be found in article 2 TEU.
See CJEU, Case 294/83 Les Verts v European Parliament
Political party that brought an action for annulment against an act of the European Parliament. Les
Verts was even represented in the European Parliament. They brought this case against the Parliament
since they were contesting a decision made by an executive body of the Parliament concerning the
allocation of funds by the Parliament. The executive body had to allocate those funds, and they
therefore had to use certain keys for the repartition, based on criteria. One of these criteria was
being represented in the Parliament before the first direct European elections. There was a
2
,combination of factors which resulted in Les Verts that felt discriminated against other political
parties who were already longer a member of the Parliament. That’s why they wanted to contest the
allocation measure of the Parliament and thus brought an action for annulment for the CJEU. In 1993,
the action for annulment was only foreseen against the Commission or the Council, so the CJEU had
to decide if it was also possible to bring an action for annulment against the Parliament since this
wasn’t mentioned in the Treaty.
The first question that the Court had to answer in this case was the one about admissibility of the
action before the Court. On this issue, the CJEU has written a reasoning that has become famous,
especially §23. This because their reasoning started comparing the EEC Treaty to a Constitutional
Charter. The EEC is described as a community that is ruled by law; the rule of law, that was normally
only applied to States, now also applied to the EU according to the CJEU. The idea behind it was that
within the Union, everyone is under the law that has to be respected; this is a principle that needs to
be respected by the MS but also for the EU institutions themself. They also have to respect the basic,
constitutional rules led down in the Treaties when taking a decision that has legal effects.
§ 23 - “European Economic Community is a community based on the rule of law, inasmuch as neither
its Member States nor its institutions can avoid a review of the question whether the measures
adopted by them are in conformity with the basic constitutional charter, the Treaty.”
• The CJEU calling EEC the basic constitutional charter: you see how daring it was for the CJEU.
The latter explains that whenever there are EU acts, you’re protected against it.
3. THE 2024 EUROPEAN ELECTIONS AND THE TRANSITION PROCESS WITHIN THE
EU INSTITUTIONS
1. Check the composition of the 4 political EU institutions in Articles 13-17 TEU
- who are their political members?
→ European Council (art. 15 TEU)
→ Heads of state or government of the EU member states.
→ President of the European Council.
→ President of the European Commission.
→ High Representative of the Union for Foreign Affairs and
Security Policy (participates but is not a formal member).
→ Council of EU (/Council of Ministers) (art. 16 TEU)
→ Government ministers from each EU member state,
depending on the policy area under discussion (e.g., foreign
ministers, finance ministers, etc.).
→ European Commission (art. 17 TEU)
→ 1 Commissioner from each EU member state (currently 27).
→ The President of the European Commission.
→ High Representative of the Union for Foreign Affairs and
Security Policy (who is also one of the Vice-Presidents of
the Commission).
→ European Parliament (art. 14 TEU)
→ Members of the European Parliament (MEPs), directly
elected by EU citizens every five years.
→ Art. 14(2):
- representatives of the Union's citizens are
not to exceed seven hundred and fifty in
number, plus the President
3
, - that representation is to be degressively
proportional, with a minimum threshold of
six members per Member State and that no
Member State is to be allocated more than
ninety-six seats
- the allocation of seats in the EP is to consider
demographic developments in the MS.
→ Art. 10 TEU: functioning of the EU is to be founded on
representative democracy, with citizens being directly
represented at the Union level in the EP with MS being
represented by their governments themselves being
democratically accountable to their national Parliaments or
citizens, in the Council.
- Who selects their president?
1. European Council: the EC elects its president by a qualified majority
2. Council of EU: the presidency rotates among the member states every six
months.
3. European Commission: Nominated by the European Council, taking into
account the European Parliament elections, and then elected by the
European Parliament.
4. European parliament: elected by MEPs from among their own members.
- How long is their mandate? ➔ when will their composition be renewed?
→ EC: the President of the European Council serves for a term of 2.5 years, renewable once +
The current President, Charles Michel, was re-elected for his second term, which will end in
November 2024.
→ Council of EU: Member states hold the rotating presidency for six months. The current
presidency is held by Belgium (July–December 2023), followed by Hungary (January–June
2024), and Poland (July–December 2024). There is no single "renewal" for the Council as its
composition changes depending on the ministers representing the member states.
→ European Commission: the President and Commissioners serve for a five-year term. The
current Commission, led by President Ursula von der Leyen, took office in December 2019,
so the next renewal would occur after the 2024 European Parliament elections (likely
December 2024).
→ European Parliament: the President of the European Parliament serves for a term of 2.5
years, renewable once. T he current President, Roberta Metsola, was elected in January
2022, so her term will end in mid-2024, around the time of the next European Parliament
elections in June 2024. The Parliament itself will also be renewed at that time.
4
FOLLOWING THE EUROPEAN ELECTIONS
Readings: assigned documents + court case
INTRODUCTION
1. WORKING METHOD AND OBJECTIVES OF COURSE
• Teaching team
• Teaching method, materials (Calendar, Treaties, Readings + Toledo)
• visit ECJ
• objectives of course → approach of final (written, open book) exam
- A combination of essay questions and cases
- Open book (work with all the material) ➔ study like any other course!
2. WHAT IS "CONSTITUTIONAL LAW OF THE EU"?
• Constitution law of EU is a very strange term as it does not exist. If we talk about EU law
o you have legislation made by the EU institutions (Commission, EP, and Council).
o Implementing acts
o Delegated acts/executive acts
▪ This EU law does have primacy above the national law; however, they
cannot be considered as EU Constitution.
▪ CJEU
• Constitutional law of EU does exist! With this course, we’re pretending that CLEU does
exist. That EU itself is based on a constitution.
Is the title descriptive or normative?
• It is both descriptive and normative. There is a body of law that is called the Constitution and
the CJEU has recognized that. But there have been tensions since each MS also has their own
constitution (just a basic foundation; doesn’t necessarily have to be a text).
The EU does not have a constitution with that name…
• There is no EU document with the specific name of a ‘constitution’, although there almost
was one. There was a failed constitutional program in 2003-2004 after the Nice Treaty.
o “The Treaty establishing the Constitution for Europe” which was submitted for
ratification in all the member states and then in some member states there were
referenda and both in the Netherlands and in France you had negative referenda (so
referenda with a negative outcome).
o The aim was to replace the pre-existing treaties (amending the EC and EU treaty)
which formed the basis of EU, to have a text called the Constitution of Europe. A
treaty can only be modified by another treaty.
• There were a lot of referenda held in the MS but in the end a lot of MS said NO to the EU
Constitution. The failed constitutional program led in the end to the adoption of the Lisbon
Treaty.
• A lot of discussions on this front; some MS say the EU can only exist thanks/due to the
(constitutions of the) MS. What is now essential to have a constitution?
o Fundamental rights
1
, o Balance/control between the political parties/rule of law
• Rule of law: ensure that all the authorities obey the law.
o You need an independent authority to check whether other
institution authorities behave within the constitutional
framework.
▪ Legislation
▪ Executive
▪ Judicial
• A lot of discussions about the legal basis, the highest norm and primacy of law. It is difficult
for the EU since it is based on the principle of primacy of EU law and advocates for uniform
application of it in all MS. A clash forms when MS say that their national constitution is the
highest norm. Primacy should be in the treaties, but it’s not expressed in the treaties.
However, it has been conferred in the
but the Treaties have a constitutional function for the EU legal order:
There are perceived as together with the Charter being the constitution of the EU. EU is still working
with the Treaties, new provisions still need to be approved, signed and ratified by all the MS so their
independence is being respected.
1. basic rules for functioning of EU
− law-making “OLP”:
− This is the default decision making process of the EU. The Parliament and
the Council are co-legislators, and they need to agree on a proposal of the
Commission. This procedure has formed the legal basis of most of the
existing EU law.
− Implementation + enforcement of law
− When MS can’t enforce or uniformity is needed, the implementation and
enforcement of law is done by the Commission. Besides, the Commission
has also the discretionary power to make law when needed.
− Role for judicial branch
− EU exercises this role through the Court of Justice of the European Union
(CJEU), together with the national courts. This is the embodiment of the
separation of powers, a concept introduced by Montesquieu.
• Judicial protection
• Infringement actions against MS
• Preliminary ruling procedure
2. Basic rights for ‘legal subjects’
3. Federalism: relationship between EU and Member States
− Although all these basis rules of functioning of the EU exist, we still except more
from a constitution, namely fundamental rights, which can be found in the Charter
and are needed to protect citizens against the State, and shared values, which can
be found in article 2 TEU.
See CJEU, Case 294/83 Les Verts v European Parliament
Political party that brought an action for annulment against an act of the European Parliament. Les
Verts was even represented in the European Parliament. They brought this case against the Parliament
since they were contesting a decision made by an executive body of the Parliament concerning the
allocation of funds by the Parliament. The executive body had to allocate those funds, and they
therefore had to use certain keys for the repartition, based on criteria. One of these criteria was
being represented in the Parliament before the first direct European elections. There was a
2
,combination of factors which resulted in Les Verts that felt discriminated against other political
parties who were already longer a member of the Parliament. That’s why they wanted to contest the
allocation measure of the Parliament and thus brought an action for annulment for the CJEU. In 1993,
the action for annulment was only foreseen against the Commission or the Council, so the CJEU had
to decide if it was also possible to bring an action for annulment against the Parliament since this
wasn’t mentioned in the Treaty.
The first question that the Court had to answer in this case was the one about admissibility of the
action before the Court. On this issue, the CJEU has written a reasoning that has become famous,
especially §23. This because their reasoning started comparing the EEC Treaty to a Constitutional
Charter. The EEC is described as a community that is ruled by law; the rule of law, that was normally
only applied to States, now also applied to the EU according to the CJEU. The idea behind it was that
within the Union, everyone is under the law that has to be respected; this is a principle that needs to
be respected by the MS but also for the EU institutions themself. They also have to respect the basic,
constitutional rules led down in the Treaties when taking a decision that has legal effects.
§ 23 - “European Economic Community is a community based on the rule of law, inasmuch as neither
its Member States nor its institutions can avoid a review of the question whether the measures
adopted by them are in conformity with the basic constitutional charter, the Treaty.”
• The CJEU calling EEC the basic constitutional charter: you see how daring it was for the CJEU.
The latter explains that whenever there are EU acts, you’re protected against it.
3. THE 2024 EUROPEAN ELECTIONS AND THE TRANSITION PROCESS WITHIN THE
EU INSTITUTIONS
1. Check the composition of the 4 political EU institutions in Articles 13-17 TEU
- who are their political members?
→ European Council (art. 15 TEU)
→ Heads of state or government of the EU member states.
→ President of the European Council.
→ President of the European Commission.
→ High Representative of the Union for Foreign Affairs and
Security Policy (participates but is not a formal member).
→ Council of EU (/Council of Ministers) (art. 16 TEU)
→ Government ministers from each EU member state,
depending on the policy area under discussion (e.g., foreign
ministers, finance ministers, etc.).
→ European Commission (art. 17 TEU)
→ 1 Commissioner from each EU member state (currently 27).
→ The President of the European Commission.
→ High Representative of the Union for Foreign Affairs and
Security Policy (who is also one of the Vice-Presidents of
the Commission).
→ European Parliament (art. 14 TEU)
→ Members of the European Parliament (MEPs), directly
elected by EU citizens every five years.
→ Art. 14(2):
- representatives of the Union's citizens are
not to exceed seven hundred and fifty in
number, plus the President
3
, - that representation is to be degressively
proportional, with a minimum threshold of
six members per Member State and that no
Member State is to be allocated more than
ninety-six seats
- the allocation of seats in the EP is to consider
demographic developments in the MS.
→ Art. 10 TEU: functioning of the EU is to be founded on
representative democracy, with citizens being directly
represented at the Union level in the EP with MS being
represented by their governments themselves being
democratically accountable to their national Parliaments or
citizens, in the Council.
- Who selects their president?
1. European Council: the EC elects its president by a qualified majority
2. Council of EU: the presidency rotates among the member states every six
months.
3. European Commission: Nominated by the European Council, taking into
account the European Parliament elections, and then elected by the
European Parliament.
4. European parliament: elected by MEPs from among their own members.
- How long is their mandate? ➔ when will their composition be renewed?
→ EC: the President of the European Council serves for a term of 2.5 years, renewable once +
The current President, Charles Michel, was re-elected for his second term, which will end in
November 2024.
→ Council of EU: Member states hold the rotating presidency for six months. The current
presidency is held by Belgium (July–December 2023), followed by Hungary (January–June
2024), and Poland (July–December 2024). There is no single "renewal" for the Council as its
composition changes depending on the ministers representing the member states.
→ European Commission: the President and Commissioners serve for a five-year term. The
current Commission, led by President Ursula von der Leyen, took office in December 2019,
so the next renewal would occur after the 2024 European Parliament elections (likely
December 2024).
→ European Parliament: the President of the European Parliament serves for a term of 2.5
years, renewable once. T he current President, Roberta Metsola, was elected in January
2022, so her term will end in mid-2024, around the time of the next European Parliament
elections in June 2024. The Parliament itself will also be renewed at that time.
4
