B3B3 European Law Summary
Week 1
Sources of European Law
Treaties:
o Treaty on the European Union (TEU): the foundation
o Treaty on the Functioning of the European Union (TFEU): elaboration on the TEU
o Charter of Fundamental Rights (CFR): this is not the same as the ECHR!
Legislation:
o Regulation: (= verordening), general application and directly applicable (no
transposition needed)
o Directive: (= richtlijn), general application, transposition into national law needed
(before directly effective)
Case law: The Court of Justice of the European Union (CJEU) can make law by interpreting the
treaties and legislation. Sometimes, they also review legislation
The treaties are implemented in the member states through the legislation, and the legislation gets
its legality through the treaties.
As mentioned, directives need transposition to become part of national law. This can have advantages
over regulations that are already applicable in the member states without transposition. These
advantages are that the directives can be implemented in the member states in a way that benefit
the member states specifically (per member state). It also ensures that the integrity of the national
law remains intact, because it becomes easier for citizens to understand all the rules. Instead of them
being all over the places (think of criminal law -> 1 book is easier than all different kinds of
documents).
The CJEU is very powerful, because they can annul legislation through their interpretations. Since the
constitutional treaties of the EU are very extensive, the CJEU can attach a lot of legal consequences to
the norms in these constitutional treaties.
Positive and negative integration
There are 2 ways in which the envisioned result of the EU treaties can be accomplished. Which one is
applicable is dependent on the situation. Often a combination of the 2 are needed.
Negative integration: passive, new legislation is not needed, because the treaty already
provides enough to get the desired result
Positive integration: the (EU) law maker needs to make legislation in addition to the treaties
to get the desired result
E.g. When a Dutch lawyer is refused by the Belgian bar, because of his nationality, this does not need
new legislation to solve. In the TFEU already gives the right to not be judged based on nationality ->
negative integration.
When Dutch lawyer is not accepted to the Belgian bar because of his Dutch diploma, there needs to
be more legislation about the weighting of diplomas to solve this -> positive integration.
Harmonization
Harmonization is (mostly) about directives (because regulations are directly applicable in member
states, so there is no question about how much room member states have to make their own
legislation about the topic of the EU legislation). Harmonization is about how uniform the
1
,implementation of a directive is in all the member states or in how much they are allowed to differ
according to the directive itself.
Harmonization is tested on 2 scales:
Minimum vs. Maximum: the discretion of the member state, is there freedom to make their
own policy? Less discretion = maximum harmonization
Partial vs. Exhaustive: does it cover the whole topic or only part of it? The more of the topic is
covered = exhaustive
This is all measured on a scale, so most legislation is not definitive on how what type of
harmonization is applicable. But it can lean more to one side than another. You have to be able to
argue where on the scale a specific directive lies.
You can recognize the applicable harmonization method by looking at the following things:
The legal basis: some treaties only allow one type of harmonization for the directives that are
based on that treaty
Text: what wording is used and how specific is this?
Aim/system of the legislative act: what is the directive trying to accomplish? (e.g. Gallaher
case)
Application of a directive in national law (when in conflict with each other)
There are cases where the directive is in conflict with a national law. How should the national judge
deal with this problem?
1. Indirect effect (consistent interpretation
This is the least invasive measure and should always be tested first, because it protects both the EU
and national legal systems.
With consistent interpretation the national law will be interpreted in a way that is in line with the EU
directive.
There are a few exceptions that make consistent interpretation impossible:
There is no national law to interpret
Contra legem: the interpretation would go completely against the national norm
Principle of legality: The interpretation is not allowed to lead to criminal sanctions
No retroactivity (legal certainty): the national law is newer than the directive and the case
was in a time the directive was there already, but the national was not. (You are not allowed
to go back in time, because then people cannot know the law)
2. Direct effect
EU laws have primacy, so this means that in a conflict between a provision of EU law and national law,
the EU provision prevails. This always goes for the treaties and regulations, and by exception
directives.
There are a few conditions:
Clear and precise: the provision must be concrete
Unconditional: there should not be any delegation of power or task to the Commission or
member states to do something before the provision works (in cause of a directive; can be
implemented)
The time for implementation has elapsed (only for directive): this is often 2 years after the
directive has been made (this condition is from the case Dominguez par. 33)
2
, The directive has not been implemented (or not correctly)(only for directive): this condition
is from the case Dominguez par. 33
Even if all these conditions are met, can direct effect sometimes not be applicable. This for the reason
that direct effect is only allowed to be applied in case with a vertical relation, so between citizen and
state. When the case is between 2 citizen’s (horizontal relation) direct effect cannot be applied. This
comes from the case Faccini Dori.
3. State liability
A citizen can sue the state for damages created by violating EU law. So, when a state does not
implement a directive correctly and a citizen has a horizontal conflict (with another citizen) because
of this, he can sue the state.
Conditions:
The rule of law infringed must be intended to confer rights on individuals
Breach must be sufficiently serious: when the breach is failing to (correctly) implement a
directive, this is seen as a sufficiently serious breach by case law
Causal link between the breach of the obligation of the State and the damage
Gallaher
This case is about an EU directive on the labelling of tobacco products.
It said that there should be an indication of tar and nicotine on "at least 4% of the surface" + free
movement provision: no restriction for products that comply with the labelling requirements
UK: at least 6% for domestic producers
Articles 3(3) and 4(4) of Directive 89/622 on the labelling of tobacco products provide respectively
that the indications of tar and nicotine yields and the general and specific health warnings that
cigarette packets must carry shall cover at least 4% of the surfaces for which they are intended. Those
provisions must be interpreted as meaning that, if they consider it to be necessary, Member States
are at liberty to decide, so far as domestic production is concerned, that those indications and
warnings should cover a greater surface area in view of the level of public awareness of the health
risks associated with tobacco consumption.
In so far as those Member States cannot make subject to the same requirement products imported
from the other Member States which comply with the minimum requirements of the directive, there
is a risk of less favourable treatment for national products and of inequality in conditions of
competition, although this is inherent in harmonization which confines itself to laying down minimum
requirements.
In the UK this happened, because they made the requirement of at least 6% for domestic producers,
which meant a disadvantage for the domestic producers (they sued), but the UK was allowed to this.
CJEU: "MS are free, in order to increase the consciousness on the risks of smoking, to choose the
require producers to have a bigger percentage of the surface for the indications of tar and nicotine"
-> minimum harmonisation
Compassion in World Farming Ltd.
The validity of Directive 91/629 laying down minimum standards for the protection of calves cannot
be affected by the fact that it is inconsistent with the 1976 European Convention on the Protection of
Animals Kept for Farming Purposes, approved on behalf of the Community by Decision 78/923, and
3
Week 1
Sources of European Law
Treaties:
o Treaty on the European Union (TEU): the foundation
o Treaty on the Functioning of the European Union (TFEU): elaboration on the TEU
o Charter of Fundamental Rights (CFR): this is not the same as the ECHR!
Legislation:
o Regulation: (= verordening), general application and directly applicable (no
transposition needed)
o Directive: (= richtlijn), general application, transposition into national law needed
(before directly effective)
Case law: The Court of Justice of the European Union (CJEU) can make law by interpreting the
treaties and legislation. Sometimes, they also review legislation
The treaties are implemented in the member states through the legislation, and the legislation gets
its legality through the treaties.
As mentioned, directives need transposition to become part of national law. This can have advantages
over regulations that are already applicable in the member states without transposition. These
advantages are that the directives can be implemented in the member states in a way that benefit
the member states specifically (per member state). It also ensures that the integrity of the national
law remains intact, because it becomes easier for citizens to understand all the rules. Instead of them
being all over the places (think of criminal law -> 1 book is easier than all different kinds of
documents).
The CJEU is very powerful, because they can annul legislation through their interpretations. Since the
constitutional treaties of the EU are very extensive, the CJEU can attach a lot of legal consequences to
the norms in these constitutional treaties.
Positive and negative integration
There are 2 ways in which the envisioned result of the EU treaties can be accomplished. Which one is
applicable is dependent on the situation. Often a combination of the 2 are needed.
Negative integration: passive, new legislation is not needed, because the treaty already
provides enough to get the desired result
Positive integration: the (EU) law maker needs to make legislation in addition to the treaties
to get the desired result
E.g. When a Dutch lawyer is refused by the Belgian bar, because of his nationality, this does not need
new legislation to solve. In the TFEU already gives the right to not be judged based on nationality ->
negative integration.
When Dutch lawyer is not accepted to the Belgian bar because of his Dutch diploma, there needs to
be more legislation about the weighting of diplomas to solve this -> positive integration.
Harmonization
Harmonization is (mostly) about directives (because regulations are directly applicable in member
states, so there is no question about how much room member states have to make their own
legislation about the topic of the EU legislation). Harmonization is about how uniform the
1
,implementation of a directive is in all the member states or in how much they are allowed to differ
according to the directive itself.
Harmonization is tested on 2 scales:
Minimum vs. Maximum: the discretion of the member state, is there freedom to make their
own policy? Less discretion = maximum harmonization
Partial vs. Exhaustive: does it cover the whole topic or only part of it? The more of the topic is
covered = exhaustive
This is all measured on a scale, so most legislation is not definitive on how what type of
harmonization is applicable. But it can lean more to one side than another. You have to be able to
argue where on the scale a specific directive lies.
You can recognize the applicable harmonization method by looking at the following things:
The legal basis: some treaties only allow one type of harmonization for the directives that are
based on that treaty
Text: what wording is used and how specific is this?
Aim/system of the legislative act: what is the directive trying to accomplish? (e.g. Gallaher
case)
Application of a directive in national law (when in conflict with each other)
There are cases where the directive is in conflict with a national law. How should the national judge
deal with this problem?
1. Indirect effect (consistent interpretation
This is the least invasive measure and should always be tested first, because it protects both the EU
and national legal systems.
With consistent interpretation the national law will be interpreted in a way that is in line with the EU
directive.
There are a few exceptions that make consistent interpretation impossible:
There is no national law to interpret
Contra legem: the interpretation would go completely against the national norm
Principle of legality: The interpretation is not allowed to lead to criminal sanctions
No retroactivity (legal certainty): the national law is newer than the directive and the case
was in a time the directive was there already, but the national was not. (You are not allowed
to go back in time, because then people cannot know the law)
2. Direct effect
EU laws have primacy, so this means that in a conflict between a provision of EU law and national law,
the EU provision prevails. This always goes for the treaties and regulations, and by exception
directives.
There are a few conditions:
Clear and precise: the provision must be concrete
Unconditional: there should not be any delegation of power or task to the Commission or
member states to do something before the provision works (in cause of a directive; can be
implemented)
The time for implementation has elapsed (only for directive): this is often 2 years after the
directive has been made (this condition is from the case Dominguez par. 33)
2
, The directive has not been implemented (or not correctly)(only for directive): this condition
is from the case Dominguez par. 33
Even if all these conditions are met, can direct effect sometimes not be applicable. This for the reason
that direct effect is only allowed to be applied in case with a vertical relation, so between citizen and
state. When the case is between 2 citizen’s (horizontal relation) direct effect cannot be applied. This
comes from the case Faccini Dori.
3. State liability
A citizen can sue the state for damages created by violating EU law. So, when a state does not
implement a directive correctly and a citizen has a horizontal conflict (with another citizen) because
of this, he can sue the state.
Conditions:
The rule of law infringed must be intended to confer rights on individuals
Breach must be sufficiently serious: when the breach is failing to (correctly) implement a
directive, this is seen as a sufficiently serious breach by case law
Causal link between the breach of the obligation of the State and the damage
Gallaher
This case is about an EU directive on the labelling of tobacco products.
It said that there should be an indication of tar and nicotine on "at least 4% of the surface" + free
movement provision: no restriction for products that comply with the labelling requirements
UK: at least 6% for domestic producers
Articles 3(3) and 4(4) of Directive 89/622 on the labelling of tobacco products provide respectively
that the indications of tar and nicotine yields and the general and specific health warnings that
cigarette packets must carry shall cover at least 4% of the surfaces for which they are intended. Those
provisions must be interpreted as meaning that, if they consider it to be necessary, Member States
are at liberty to decide, so far as domestic production is concerned, that those indications and
warnings should cover a greater surface area in view of the level of public awareness of the health
risks associated with tobacco consumption.
In so far as those Member States cannot make subject to the same requirement products imported
from the other Member States which comply with the minimum requirements of the directive, there
is a risk of less favourable treatment for national products and of inequality in conditions of
competition, although this is inherent in harmonization which confines itself to laying down minimum
requirements.
In the UK this happened, because they made the requirement of at least 6% for domestic producers,
which meant a disadvantage for the domestic producers (they sued), but the UK was allowed to this.
CJEU: "MS are free, in order to increase the consciousness on the risks of smoking, to choose the
require producers to have a bigger percentage of the surface for the indications of tar and nicotine"
-> minimum harmonisation
Compassion in World Farming Ltd.
The validity of Directive 91/629 laying down minimum standards for the protection of calves cannot
be affected by the fact that it is inconsistent with the 1976 European Convention on the Protection of
Animals Kept for Farming Purposes, approved on behalf of the Community by Decision 78/923, and
3
