LEGAL BASIS
Centre of Gravity:
• Determines predominant purpose of the measure, derived from Parliament v.
Council case.
Two or more legal bases
• Two different aims are inseparably linked without one being secondary, Recovery of
indirect taxes
• Conditions:
o No hierarchy between norms (specific norms takes precedence over general
norm, example: 192(2) and 114 TFEU)
§ 114 TFEU (internal market harmonisation) has precedence over 192(2)
TFEU and 115 TFEU (“without prejudice to Art. 114 TFEU).
§ Last resort: 352 TFEU (flexibility provision), when no other specific
legal basis can be applied + conditions are fulfilled.
o Not incompatible with each other (example ordinary v. special legislative
procedure are not compatible)
§ Unanimity v. QMV voting Council, Recovery of indirect taxes.
o No harmonisation prohibited (one does not allow harmonising measures,
example 167 para 5 TFEU)
Important legal base: 114 TFEU (internal market + health, safety, environmental and
consumer protection). But use of 114 is limited:
- Tobacco Advertising
- Vodafone
114 TFEU can be applied when there is a concrete or likely obstruction:
- Difference between national law and EU aw obstructs the fundamental freedoms and
this have a direct impact of the function of the internal market or cause significant
distortions of competition
- Aim is to prevent the emergence of such obstacles to trade resulting from divergent
development of national laws (must be likely and measure must be designed to
prevent them)
Not when:
- Disparities between national rules and abstract risk of infringements of fundamental
freedoms or distortion of competition
352 TFEU:
Limits:
- Built in subsidiarity check and role of national parliaments (para 2)
- No harmonisation where it is excluded (para 3)
- No use for CFSP measures (para 4)
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, DIRECT EFFECT
Direct effect primary law:
- Van Gend & Loos, à Direct effect of primary law
- Costa v. ENEL à Supremacy of EU law
Direct effect secondary law:
- Van Duyn à both primary and secondary law produce direct effect. Depending on
nature, scheme and wording of the provision. Directives can be invoked by
individuals in national courts.
- Becker à CJEU ruled that MS has the duty to adopt directives:
o Clear, precise and unconditional
o Absence of implementing measures/ time-limit of implementation expired
(288 TFEU and 4(3)TEU)
o Vertical relation (rights claimed by individual against MS)
Horizontal direct effect secondary law:
- Faccini Dori à No horizontal direct effect.
Horizontal indirect effect secondary law:
- Marleasing (and Colson case) à directives can have horizontal indirect effect
o National court is obliged to interpret national law as far as possible in the light
of the Directive
o Adenaler à Duty to interpret national law as far as possible in the light of the
Directive starts when the transposition period of the Directive has expired
o Interpret national law in conformity with EU law, but only when:
§ Legal certaintyà There is national law on it
§ Not contra legemà No contradiction between national and EU law
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Centre of Gravity:
• Determines predominant purpose of the measure, derived from Parliament v.
Council case.
Two or more legal bases
• Two different aims are inseparably linked without one being secondary, Recovery of
indirect taxes
• Conditions:
o No hierarchy between norms (specific norms takes precedence over general
norm, example: 192(2) and 114 TFEU)
§ 114 TFEU (internal market harmonisation) has precedence over 192(2)
TFEU and 115 TFEU (“without prejudice to Art. 114 TFEU).
§ Last resort: 352 TFEU (flexibility provision), when no other specific
legal basis can be applied + conditions are fulfilled.
o Not incompatible with each other (example ordinary v. special legislative
procedure are not compatible)
§ Unanimity v. QMV voting Council, Recovery of indirect taxes.
o No harmonisation prohibited (one does not allow harmonising measures,
example 167 para 5 TFEU)
Important legal base: 114 TFEU (internal market + health, safety, environmental and
consumer protection). But use of 114 is limited:
- Tobacco Advertising
- Vodafone
114 TFEU can be applied when there is a concrete or likely obstruction:
- Difference between national law and EU aw obstructs the fundamental freedoms and
this have a direct impact of the function of the internal market or cause significant
distortions of competition
- Aim is to prevent the emergence of such obstacles to trade resulting from divergent
development of national laws (must be likely and measure must be designed to
prevent them)
Not when:
- Disparities between national rules and abstract risk of infringements of fundamental
freedoms or distortion of competition
352 TFEU:
Limits:
- Built in subsidiarity check and role of national parliaments (para 2)
- No harmonisation where it is excluded (para 3)
- No use for CFSP measures (para 4)
1
, DIRECT EFFECT
Direct effect primary law:
- Van Gend & Loos, à Direct effect of primary law
- Costa v. ENEL à Supremacy of EU law
Direct effect secondary law:
- Van Duyn à both primary and secondary law produce direct effect. Depending on
nature, scheme and wording of the provision. Directives can be invoked by
individuals in national courts.
- Becker à CJEU ruled that MS has the duty to adopt directives:
o Clear, precise and unconditional
o Absence of implementing measures/ time-limit of implementation expired
(288 TFEU and 4(3)TEU)
o Vertical relation (rights claimed by individual against MS)
Horizontal direct effect secondary law:
- Faccini Dori à No horizontal direct effect.
Horizontal indirect effect secondary law:
- Marleasing (and Colson case) à directives can have horizontal indirect effect
o National court is obliged to interpret national law as far as possible in the light
of the Directive
o Adenaler à Duty to interpret national law as far as possible in the light of the
Directive starts when the transposition period of the Directive has expired
o Interpret national law in conformity with EU law, but only when:
§ Legal certaintyà There is national law on it
§ Not contra legemà No contradiction between national and EU law
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