Law and Policy of the Eu law Notes

8/17/2019 Law and Policy of the Eu law Notes

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LAW AND POLICY OF THE EU

PART 1: EVOLUTION AND STRUCTURES

Provides an overview as to the manner in which the EU has developed from in its original

inception as the EEC and the EC, as well as the manner it operates and why it is sosignificant, along with the political, economic, social and legal pressures which affect its

evolution. Overarching concept is that the EU is a work-in-progress that is evolving and

changing, as opposed to a fixed project with a specific destination

THE EVOLVING EUROPEAN PROJECT: FROM EEC TO EU AND BEYOND

The EU as an evolving project

The founding treaty was the Treaty of Rome (EEC Treaty) in 1957 which sought peace,stability and economic progress among 6 member states

Since 1957 there has been an expansion:

• Now 27 member states, demonstrating a territorial enlargement

• Has wider political and social goals, such as

o A deepening legal order

o Creation of the European Union 1992 (Maastricht) and new competences

o The Lisbon Treaty settlement in force from 1st December 2009

Evolving Economic Integration

This idea revolves around the notion of whether or not the EU is a constitutional entity; is

it a mere fiscal system of something along the lines of national law?

Purely economic:

• Free trade area (no internal border tariffs)

• Customs union (same as above, plus common external tariff)

EEC:

• Common market (same as above, plus free movement of goods, labour, servicesand capital)

EU and beyond:

• Economic and monetary union (including the common currency)

• Multi-speed? Federal state? Or a break-up?

Legal evolution: Treaty milestones

The formation of the EU and its predecessors was arguably a reaction to the economic

devastation that ensued following WW2. In the EU’s initial founding as the EEC in 1957,the aim was to brings about peace in Europe through stability. Envisaged that through


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•Pillars (2) and(3) were added

so as to lead tothe EU being

treated as an

international corporation whereas pillar (1) was the primary means of giving

citizens enforceable rights

• For this period of arrangement (1993 – Lisbon), the pillar acted as support for theoverarching concept of the EU

Why might member states have wanted such a complicated-looking scheme? And whydismantle?

• Pillars could be seen as mere symptoms of evolving integration

o Pillar (1) more integrated in political and legal terms as it provides forsupranational decision-making, review by courts, individual rights, etc

o Pillars (2) and (3) more intergovernmental in decision-making processes;

greater powers retained by member states; less reviewable

• The Lisbon treaty ended formal pillar divisions

o However the CFSP established through pillar (2) still has special rules

o All elements are now ‘’EU’’ and ‘’EU Law’’; Lisbon encapsulated everything

under this banner of EU law and ended formal structures

o Despite this, some member states have nevertheless secured so-called opt-

outs (and opt-ins) to some controversial areas of activity; eg the protocol

for the UK, Czech republic and Poland in respect to aspects of the Charter

Getting to Lisbon:

• Through political disputes as to the direction of the EU

o Was it in regard to social or market directions?

o Unwieldy decision-making structures after 2004 enlargement

o Conflict over constitutionalising the EU

• The failure of the Draft European constitution in 2004

o Agreed by MSS, defeated by France & Netherlands referenda in ratification

process

The Lisbon treaty:

European Union

(1)European

Community

(2) Common foreign and security policy

(3) Police and judicial

Cooperation in Criminal matters


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• A compromise after the failure of the 2004 draft constitution

o Ratified after original Irish referendum rejection

o Tries to lose (hide?) the constitutional bits

o Last-minute accommodation of Czech Rep alongside Poland and UK ‘opt-outs’ re parts of Charter of Fundamental Rights

• Amends the 1957 EEC treaty and the later ones to form today’s position

Conclusion

• The EU is a work in progress and isn’t a concluded project; no set point for EU to

reach

• Legal changes reflect pace and shape of progress and direction of travel; Lisbon

brought stability

• Is the EU primarily about member states or is it actually about an evolving citizen

project in which the court uses people to implement certain laws and uphold their

rights?

THE EU’S TREATY BASIS: WHAT IS IT FOR? WHAT CAN IT DO?

It must be borne in mind that the EU is not a unitary state and that its powers areconstrained by its treaty foundations which today comprise of the TEU and TFEU who are

given the same legal value.

• It has no inherent powers but it does have legal personality, competences, political

and legal institutions and decision-making processes

• It replaces and succeeds the EC

The treaties must be consulted to determine if the EU has the power to act in a particular

area and how it can act.

• EU is a treaty based entity and is therefore bound by the ambits of the treaties

• It can only carry out functions allowed by the treaties; has no inherent powers or

resemblance to the functions of a state

• The ECJ in Luxembourg takes a substantive view as to the functions of the EU

EU’s legal base since 1st December 2009

(1) TEU:

• Contains the values, principles and CFSP

• Essence of the TEU was in the creation of a new organisation (The EU) which wasfounded on the principle of legally constituted communities and political

cooperation


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(2) TFEU:

• Contains the detailed operational rules

o Such as free movement, citizenship, competition law

(3) EU Charter of Fundamental Rights:

• Same legal value as TEU and TFEU

These treaty arrangement were put into place through the Lisbon treaty which wasessentially an amendment to the founding treaty; the three instruments above are the

major sources of the EU’s legal base and encapsulate the major principles

• They set the parameters within which the EU bodies can act

• However, it is the ECJ which has the exclusive power to determine what the

treaties mean

EU as a legal construct

What is the EU?

• As the EU draws its powers from the treaties themselves, it must be remembered

that the treaties are very loosely drafted and this allows for flexibility; can also be

seen as highly problematic

• Treaties make no claim/objective towards being a state/federal state, but does

share characteristics

• Whilst the EU doesn't have a government in essence, it does nevertheless havegovernance as the policies have impacts. This is a paradoxical institutional

arrangement

• It is not a state or indeed a federal organisation, but is a unique entity

The values of the EU

Article 1 of the TEU says ‘’this treaty marks a new stage in the process of creating an ever

closer union among the peoples of Europe.’’ This answers the question as to whether the

EU is meant to be a union of states or citizens.

• The fact PEOPLES of Europe was inserted was to avoid the notion of a super state

• Reflects diversity

• No notion of a SINGLE European people, but has the objective of creating a space

where there is an opening up between the various PEOPLES which make up Europe

According to Article 2 of the TEU, ‘’the union is founded on the values of respect forhuman dignity, freedom, democracy, equality, the rule of law and respect for human

rights, including the rights of persons belonging to minorities. These values are common to

the member states in a society in which pluralism, non-discrimination, tolerance, justice,

solidarity and equality between women and men prevail.’’


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What kind of EU do these values represent? Advocate General PoiaresMaduro in Rottmann observed that citizenship of the Union, enjoyed by all nationals of member states,

• ‘’Presupposes the existence of a political relationship between European citizens,

although it is not a relationship of belonging to a people. On the contrary, that

political relationship unites the peoples of Europe. It is based on their mutualcommitment to open their respective bodies politic to other European citizens andto construct a new form of civic and political allegiance on a European scale. It

doesn't require the existence of a people. But is founded on the existence of a

European political area from which rights and duties emerge.’’

Goals and Competences

The broad objectives of the EU are contained in Article 3 TEU:

• One of the stated objectives was to maintain in full the ‘’acquiscommunautaire,’’

but the lack of a formal definition of this term leads to uncertainty in its

interpretation

o Tillotson was of the opinion that it entailed the acceptance of ‘’the existing

body of EC law, which includes the contents of the Treaties, includingMaastricht, all legislation adopted in implementation of the Treaties, all

adopted declarations and resolutions and all international agreements.’’

! In other words, it extended beyond the formal acceptance of

community law to include rules that have no binding force,

indicative of the term having more of a political than a legalmeaning.

General principle is that the EU has attributed competence in the sense that the treaties

confer competence upon it:

• Such competences are broad in their outreach as there are few excluded areas of

activity contained in Article 3 TEU

• Articles 3-6 of the TFEU (exclusive and shared competences) are attempts by

member states to limit the amount of influence the EU can exert upon the will of

individual member states

The EU is not omnipotent and cannot do anything if it isn’t in the treaty.

• On occasions this leads to conflicts arising where it is unclear as to whether it isthe EU or the member state who have the capacity to adjudicate on a certain issue

• Klamert writes in his article

o No hierarchical relationship between the European Court of Justice and

other institutions; all have legislative competences evenly distributed

between them

o When it comes to assessing which competence a measure should fall into, a

wide degree of discretion is left to the council, as well as to the ECJ in

review of its acts; not good for legal certainty


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o The ECJ has a tendency to put the emphasis on the objectives of a measureto determine its legal basis

• The limits of EU competences are governed by the principle of conferral in Article

5(1) TEU

o Essentially if there is no treaty base, there is no EU power to act

o This concept is reinforced by Article 4(1) TEU

The TFEU attempted to categorise competences according to 3 types:

1) Exclusive EU competences (Article 3 TFEU)

o Such as competition law rules, common (external) commercial policy

2) Shared EU/MS competences (Article 4 TFEU)

o Eg internal market, environment, consumer protection, energy

o Anything not specifically listed in Articles 3 or 6

3) EU competences that merely ‘’support, coordinate or supplement’’ the actions of

MSS (article 6 TFEU); EU acts in this category cannot entail harmonisation of MSS’s

laws

o This category compromises 7 areas, including the protection andimprovement of human health, culture, tourism and education

Limits to EU competence

• The meaning of EU treaties is exclusively determined by CJEU (Article 19 TEU)

• Due to the previous difficulty in finding the limits of EU competence, the

boundaries set out in the Lisbon Treaty were crucial.

o The legitimacy of EU action: the power to act

o In terms of supremacy issues: conflict between national and EU law over

competence

o The correct legal base (ie how relevant decisions are to be made, by which

institutions and using which procedure)

• Article 4 of the TFEU makes the point that the union shall share competence with

the member states where the treaties confer on it a competence which does not

relate to the categories referred to in Articles 3 and 6 TFEU which deal with

exclusive competence

Even with the new categories in place, it still may fall to the court to determine whethera particular act falls within the category claimed by an EU institution or member state.

Because of the court’s exclusive role of interpretation the boundaries must be marked

clearly and their functions must be clearly defined. Therefore the approach of the ECJ

must be examined:


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• No EU power, as illustrated in the Tobacco Advertising case. This is the only casewhere the court has ever annulled an EU measure for having no treaty basis.

o Case C-376/98 Germany v E Parliament and Council

o Member states mutually wanted tobacco adverts to be banned

o However there was a specific exclusion of EU competence in relation to the

manner in which the EU wanted to exert their power, and so thought theycould get around it by utilising another provision

! Tried to play it in the sense that despite having public health

effects, they enforced their objective through means of harmonising

the market as it was a single market measure

o (Then) Art 152(4)(c) EC excluded EC power to harmonise national lawsrelating to public health [now Art 168(5) TFEU]

o Art 95 EC [now Art 114 TFEU] authorises harmonising measures for the

establishment and functioning of the internal market

• The court’s reasoning in the above case was that the sidestep wasn’t viable as it

nevertheless achieved the same objective which was prohibited. The ‘’real’’ reasonwas clearly public health protection, but it was expressly excluded by the treaty.

o If there was a specific object which was tried to be banned then it would

succeed under the single market argument, but a backdoor general

legislative capacity couldn’t suffice

o Lack of any legal base under the treaty to ban tobacco advertising; must bea legal treaty base to legitimise the actions

• Not within the EC’s single market competence either

o Art 95 NOT a general legislative power

o Directive too general to satisfy Art 95 conditions (‘establishment and

functioning’)

o Could adopt specific measures (eg banning Formula One tobacco

sponsorship)

o Annuls directive for lack of ANY legal base under Treaty

• Unusual to find something beyond the treaty’s power, but the tobacco advertising

case demonstrates a ‘’rule of law’’ approach in the sense that even the EU is notbeyond the ambit of the powers bestowed upon them

• Makes a significant constitutional point that as there was no legal base for such

powers to be exerted, they had to be curbed

As for avoiding conflict with member states:

• The Grogan case concerned Irish constitutional prohibition against abortion andproviding info about abortion


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o In the case, G and others supplied women with information about where toobtain abortions in UK

o Anaction was brought against Grogan on the terms that they undermined

the Irish constitution, and they proceeded to invoke the ‘’euro defence’’ in

that they argued it was their right under the directives of the EU to providea service in the form of such information

! MUST BE NOTED: for a case to proceed to the ECHR it must firstly

have a place in an EU treaty

! Freedom of expression under ECHR

! Free movement of services under (then)EC Treaty

• The role of the Advocate General is to collect information and recommend asolution to the case at hand; the court is not bound by it however. This is avery

useful function in terms of going into detail and the citation of academicliterature. AG Van Gerven gave his recommendation:

o Information = service

o Thus EC Treaty applies

o But EC allows derogations in Treaty

o Morality = recognised justification for limit to free movement

o Irish rule allowed by EC law

• The court of justice however felt:

o Abortion = service

o Info ! service

o EC Treaty therefore not applicable

o If no EC dimension, no reason to discuss ECHR

o Irish rule not touched by EC law

o Essentially says it is not an EU problem; perhaps a political move to avoidconflict with domestic issues.

The case of Konstantinidis perhaps illustrated visions of Europe:

• In this case, a Greek moves to Germany and sets up business (‘establishment’

under EC Treaty). German law requires transliteration of business names and so his

name ‘Christos K’ turns into ‘Hrestos K’ and the question was whether he couldclaim an infringement of any EC rights?

• AG Jacobs:

o Name is part of identity, a fundamental right


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o ‘’The Union shall have an institutional framework which shall aim topromote its values, advance its objectives, serves its interests, those of its

citizens and those of the member states, and ensure the consistency,

effectiveness and continuity of its policies and actions.’’

o

EU is about the union of citizens and no longer (if ever) was it just a clubfor member states; evolution of the EU

• The above article also listed 7 institutions of the EU, but 5 are of primary

significance

1) European Parliament

2) Council of the EU

3) European Council

4) European Commission

5) Court of Justice of the EU

o The institutions work together, interact and have some shared functions so

as to uphold this idea of a balance of power

• Critical tests to measure the relationships of the different institutions are:

o Supranational/intergovernmental character

o Accountability of institutions to each other and democracy more generally

o Participation in legislative process(es)

! Asks if all the institutions are involved; if they are then how

democratic is their nature?

! Regarding participation, the role of the CJEU must be looked at in

terms of their influence on institutional change; the more you

integrate into the EU the more difficult the achievement of balance

becomes

o Dynamics and factors that influence change

• Many times, the relationship between different institutions is aggravated throughpolitical matters. The law is about the control and exercise of power; power,

politics and accountability

The European Commission

The commission is the most multi-faceted of the institutions. Article17 states:

• (1)’’ The commission shall promote the general interest of the union and take

appropriate initiatives to that end. It shall ensure the application of the treaties

and of measures adopted by the institutions pursuant to them. It shall oversee the

application of union law under the control of the Court of Justice. It shall execute


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the budget and manage programmes. It shall exercise coordinating, executive andmanagement functions, as laid down in the treaties.’’

• (2) ‘’Union legislative acts may only be adopted on the basis of a commission

proposal, except where the treaties otherwise provide.

o This is the fundamental role of the commission

o Places the commission at the forefront of policy development andessentially defines its role as the catalyst for many legislative initiatives’’

• (8) Makes clear that the commission, as a body, is responsible to the European

Parliament

o Shows that whilst it is a very supranational institution, at the same time it

is the least democratically accountable; only responsible to the EuropeanParliament

Whilst being the most multi-faceted of the institutions, it also has the most functions.

Since the Lisbon Treaty, its power had arguably diminished to a certain extent

• Independence of commissioners is a key issue as it reflects the nature of the

commission

• Nevertheless it exercises a great level of inter-institutionalism as it works with the

Council of the EU and the European Parliament demonstrating that despite

maintaining its independence it is committed to integration within an EU

framework.

• Most important function is the power of legislative initiative, however throughpolitical pressure they can be led to introduce/not introduce regulations or

directives

• The commission also develops the overall legislative plan for any single year as well

as the development of general policy strategies

• A certain degree of delegated power is also exercised by the commission; Article290 of the TFEU elaborates on this idea in that the Council of the EU and European

Parliament delegate power to the commission to make further regulations in

particular areas

• They have limited unilateral decision-making (eg fining companies for breaches ofcompetition law)

• Commission are the ‘’Guardian of Treaties’’ (eg bring enforcement actions against

MSS in the Court of Justice)

o The commission brings actions against member states for breaching treaties

and is the institution with the power to take matters to court

The commission is made up of one commissioner from each member state, but therearen’t representatives of the member states as they operate independently


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• The Irish for example voted in favour of the Lisbon treaty the second time round onthe basis that they would have a commissioner, regardless of the fact that such a

commissioner was not their representative

• Appointments last for 5 years, and the current commission is for 2009-14. It was

originally agreed that after 2014, the number of commissioners would be reducedbelow that of the Member states. However, the European Council in pre-Lisbonagreed that once the Lisbon Treaty took effect it would secure the maintenance of

the system of the commission having one national from each member state. This in

effect was part of the price of Ireland agreeing to hold a second referendum on

Lisbon

The president of the commission plays a very important role as it is he who lay down theguidelines within which the commission is to work, and decides on the internal

organisation of the commission and fire individual commissioners. Lisbon treaty provides

for the president to be indirectly elected meaning they must essentially secure the

support of the majority of the European Parliament• Guidelines as to the working of the commission are laid down by the president

(Barroso)

• Plays a vital role in the shaping of overall commission policy, negotiations with the

Council of the European Union and determining the future direction of the EU

The Council of the EU

Previously known as the Council of Minister, this is the forum which consists of governmentrepresentatives from the member states at ministerial level meeting in different

configurations according to policy areas• General affairs council as coordinator

o The GAC deals with matters affecting more than one EU policy and prepares

the agenda for the European Council; ministers are sent to such meetingsaccording to the issue at hand

• Foreign Affairs Council for external actions, chaired by High Rep for FA

o The Foreign affairs council deals with external relations and matters

pertaining to common, foreign and security policy.

The Council is intensely political, and also occupies the key co-legislator role with theEuropean Parliament under the ‘’ordinary legislative procedure’’ of Article 294 TEU.

• Under Article 16(1) TEU, ‘’The Council shall, jointly with the European Parliament,

exercise legislative and budgetary functions. It shall carry out policy-making and

coordinating functions as laid down in the Treaties.’’

• Voting varies: simple, unanimous or qualified majority (QMV) depending on Treatybasis. Under Article 16(4) TEU, ‘’The Council shall act by a qualified majority

except where the Treaties otherwise provide.’’


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o By QMV it refers to the weighted votes allocated to member states. Suchweighted votes represent the population size and economic power of a

member state

o However it if is clear that something is going to be approved then individual

QMV will not be utilised

o Such voting systems (especially unanimity) are a means of analysing howintegrated the EU truly is; unusual to find situations where member states

exercise a veto except in matters of foreign affairs

In terms of the composition of The Council, Article 16(2) of the TEU states how a

representative of each member state who is of ministerial level will make up such a

council

• This factor demonstrates how the council does, and always has, represented

national interests

• The presidency of the Council rotates among the member states on a six-monthly

basis. Currently it is Cyprus.

• Council meetings (like the GAC and FAC above) are arranged on the basis of subjectmatter with different ministers attending from the member states.

Whilst it is indeed the commission which takes the first step in recommending and

proposing the legislation which is to be enacted, it is the Council of the EU which enact

such recommendations

• The council can also delegate power to the commission thus enabling them to pass

further regulations within a particular area

• Council must vote approval on virtually all commission legislative initiatives before

they become law; depending on the treaty basis voting is done by means of

unanimity, qualified majority vote (QMV) or simple majority.

European Council

Not to be confused with The Council of the EU. This is a recognised EU institution which

began as informal meetings between Heads of Government to thrash out the thorniest

dilemmas of EU policy. Existed since the 1960s but the Lisbon changed enhanced the

formal position and legal base of the European Council• Its functions set out in Article 15 TEU

• Made up of Heads of Govt plus its own President and Commission President

(Barroso)

• In cases revolving around tricky questions, such as budgeting issues, they can only

be resolved through the heads of government attending meetings; hence the

recognition of the European Council was a long time coming

The Council has no legislative powers but is entrusted with defining general political

objectives and directions of the EU


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• Nevertheless despite lacking any such legislative powers, if the heads of memberstates want a certain outcome then the commission will have no choice but to

enact their will

• No important internal or external developments can take place without being

considered first by the European Council• It also has a permanent and stable president who each have terms of 2 and a half

years, renewable once

Some Vague rules are set out under Article 15 TEU:

• ‘’Shall provide the Union with the necessary impetus for its development.’’

• Decisions are to be taken by ‘’consensus’’

• President to ‘’chair it and drive forward its work’’

European Council plays a fundamental role in the integration of member states, and whilstshaping EU policy also sets out the ambits within which other institutions can operate

• The role has evolved; initially looked upon with disdain and suspicion by members

of the Commission however the Council now has the means by which the

commission can secure broad agreement from member states on a number of itsinitiatives

The fact that the European Council is now recognised leads to the question being asked as

to whether or not other institutions are undermined as a result; the political make up of

the council means the legislative process can be influenced.

• Can also be seen as shackling the Council of the EU

• European Council shows how Lisbon was a very euro-sceptic treaty. The recognition

of sovereignty and the express authority given to the European Council shows how

member states actually run the scene as opposed to the EU as a united and

integrated entity.

Must also be noted that Article 263 TFEU gives Court of Justice power to review decisionsof the European Council intended to produce legal effects regarding 3rd parties

The European Parliament

This is the only directly elected body of the EU, adding a certain degree of democracy and

legitimacy to the institutions.

• Consists currently of 754 MEPs

• Nevertheless its legitimacy are still scrutinised on the basis of low turnouts in MEP

elections, the lack of pan-European political parties, and whether it plays same

role as a national parliament

• Still has problems as to whether or not it is compatible; in 2009 the German

constitutional court said due to the electoral deficits, the EP was not in a position

to make decisions on the supranational balance of states interests


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• 8 impartial Advocates General who give (non-binding) Opinions as to the legalposition and recommended outcome relevant to a particular case

o AG is a full member of the court and participates at the oral stage of the

judicial hearing

o Most important task of the AG is to produce a written opinion, which is the‘’reasoned submissions’’ mentioned in Article 252 TFEU

o Because the court only issues single judgements, the Advocate General sets

out particular issues which should be covered by the court; opinions of the

AG are vital but distinct to the courts

o Opinions of the AG aren’t binding on the court but are very influential

nevertheless; supposed to constitute impartial and independent advice andwill often shed light on a CJEU judgement that is difficult to interpret

• Both judges and advocate generals of the CJEU must have independence which isbeyond doubt and have held the highest judicial office in their respective countries

• The court provides a single collegiate judgment, with no dissents

• Sit in Chambers (3 or 5) or as Grand Chamber (13)

• Lower division = General Court (formerly the Court of First Instance)

Any member state has a right to appear/intervene in court and if a lot of member states

have turned up it means it is a major issue

Main jurisdictions of the Court of Justice are:

• Infringement proceedings against Member states, brought (usually) by the

Commission or by a Member state (Articles 258-259 TFEU)

• Actions for annulment of EU acts/failures to act (Articles 263 and 265 TFEU)

• Cases referred by national courts under Article 267 TFEU (preliminary hearings)

o Provides a vital bridge between national and EU law; cases will always besent for interpretation and much of the preliminary decisions are made

through this process

• Art 340 actions against EU institutions for damages

• Appeals against decisions of the General Court

The CJEU examines the whole context within which a provision can be found and gives aninterpretation most likely to further what the court felt the provision sought to achieve.

Article 19(1) TEU goes on to state how the court will ensure ‘’that in the interpretation

and application of the treaties the law is observed’’

•It is the CJEU which adjudicates on the limits of EU competence as against memberstates


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Summary

• Balance, not separation, of powers between EU institutions

• Different institutions exhibit different degrees of supranationality, inter-

governmentalism or democratic accountability

• Who wins (European Council/European Parliament?) who loses (Commission?) as a

result of the Lisbon settlement

• A system of governance, not government

LAW-MAKING IN THE EU

The basic concept is that the EU only acts if the Treaties allow it to; conforming to the

conferral of powers doctrine. As for the actual making of legislation, this is a co-legislativeeffort carried out by The Council of Europe and the European Parliament

Legislative Procedures

Post-Lisbon there is a default procedure for law-making known in Article 289 TFEU as the

‘’ordinary legislative procedure’’, previously known as the co-decision procedure. This

consists of a proposal from the commission which goes to the EP and Council foramendment/approval as co-legislators, with a joint conciliation committee to try and

resolve conflict.

Institutional relations post-Lisbon:

• Winners (As a result of the reconfiguration of the EU through the Lisbon treaty

some institutions were better off):

o European Council


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! The fact the European Council was recognised and now has aplatform through which it can voice opinions to the commission who

would have little choice but to enact their will

! Elevated legal status even though no legislative power

! Initiatives for future Treaty change

o European Parliament

! Expansion of OLP role

! The Parliament were given more responsibilities and more of a voice

in issues pertaining to the legislative process; been given a genuine

co-legislative function. Different areas of policy are transferred to

the OLP to which the Parliament has a stake in. The EU Parliamentwas given an increased role in the legislative process meaning the

commission now had little choice but to ensure inter-institutionalcooperation. Whereas it’s power was previously an unconstructive

one of delay, following the Lisbon treaty they were bestowed with a

stronger and more constructive role in the drafting of legislation

o Court of Justice

! Gains jurisdictions

! Result of Lisbon for the Court is that they acquire an extra

jurisdiction and the monumental jurisdiction of giving the Charter

the same rights as the treaty; opens up possibilities for the court to

use it in a manner of interpretation to assist the other treaties

• Losers:

o Commission

! Formal power of initiative but increasingly told what to initiate

(from EP and European Council)

! The commission’s former power of initiative has decreased; lack of

democratic credibility has come home to roost. The political shift

couples with other legal dynamics point to a decrease of power

o Council of EU

! Rotating State presidency overshadowed by permanent President ofEuropean Council

• Overall, the question is whether or not the EU has given more power back to

individual member states and thus made the EU less supranational. Potentially a

move towards a greater more integrated EU

Challenges in evolving relations:

• Framework Agreement on relations between the EP and Commission (see Art 295TFEU)


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o Article 295 authorises a practice that used to happen but now provides itwith a legal basis. The commission’s power of initiative has been diluted as

the link demonstrates

! Commission not to announce publically any initiative or proposal

without the authority of the EP

! In the link you can see how the commission is bound politically tothe EP

! Euro sceptics will argue the EP and commission produce legislation

which furthers integration

• The identity problem of the new High Rep for FA (Baroness Ashton)

o Vice-Pres of Commission AND Chair of Foreign Affairs Council: so who doesshe work for?

o Common view is that Baroness Ashton is working for the Council of the EU as

opposed to the commission

• European Council/Council relations

o Relations are strained between European Council and the council of the EUas sometimes the Council presidency is held by a smaller state who’s will

can be undermined by the council of the EU

• Little in Lisbon re connection(s) between European Council and European

Parliament

o Vacuum in treaties between connections of the European Council andEuropean Parliament

Institutions in EU law-making:

• Historically been a labyrinth in the sense that there are a vast amount of processes

which need to be undertaken before law is made in the EU. More than one EU

decision-making procedure

o Over time, the number of procedures has begun to converge

o Ordinary Legislative Procedure (OLP) now default system, but others(‘special procedures’) still exist

! Within the OLP the Council of the EU will exercise QMV

o Variations in terms of which institutions participate, what type of vote isrequired

! ‘’Turf wars’’ break out between institutions

o Existence of different procedures > disputes over which one is the ‘right’

one under the Treaties (‘turf wars’)

• OLP (pre-Lisbon co-decision) extended by Lisbon to new policy areas


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o The Lisbon treaty simplified legislative matters especially those surroundingaspects of democracy

o Article 14(1) of the TEU states how the EU Parliament shall exercise

legislative and budgetary functions jointly with the council of the EU, whilst

Article 16(1) says the exact same from the Council of the EU’s point of view.

o Articles 289 and 294 of the TFEU demonstrates how the co-decisionprocedure is the OLP; consists of the joint adoption by the EU Parliament

and Council of the EU of a regulation, direction or decision on a proposal by

the Commission

• A particular treaty article must always be looked at as it is through such articles

that the legislative procedure applicable in certain areas will be specified

The OLP under Article 294 TFEU:

• Essence of OLP is that the Commission will draft up a proposal and then send it tothe Council of the EU and the EP. Any conflict between Council and the EP will be

eased through a committee trying to reconcile the various amendments

• Stages set out within Article 294 of the TFEU

o First Reading à Second Reading à Conciliation (in event of conflict) à Third

Reading à Special Provisions

• Output of legislation is EU secondary legislation in the form of Regulations and

Directives

The EP perspective on OLP:

• Legally this is genuine co-legislation and both institutions are legal, but politically

however you can see how both institutions are eager to demonstrate a convergence

of interests and want to be seen as being integrated and united in the cause

• In terms of the practical operation of the OLP, it has been successful in that it has

accommodated the differing interests through each being given a stake in thelegislative process.

• The procedure emphasises compromise and dialogue so as to ensure the passage of

the legislative act

• Double veto opportunity for EP

o After 2nd reading, reject Council’s ‘common position’

o Or, if conciliation committee report has been required, reject this (3rd

reading)

o EU Parliament uses its power to veto under Article 294 cautiously and in

moderation; despite the rare use of the veto, the fact is that the EP must

accept the measure if it is to become law

o However, less than 1% of co-decision procedures pre-Lisbon were vetoed byEP


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! contrary to legal certainty to take into account political relationsbetween institutions (unlike its Titanium Dioxide reasoning)

! Agriculture the proper (sole) base

o They did so not because of a lack of sympathy for the EU Parliament, but

because they now had new powers conferred upon them the court felt noneed to politically intervene on Parliament’s behalf and so didn’t follow inthe Titanium Dioxide case

• Latest example was in Case c-130/10 EP v Council (Al-Qaida Network) which

concerned an attempt by the EU to put economic sanctions in place against

specific terrorists

o Only rule regarding EU Parliament in Article 215 TFEU is that they should beinformed

o However, the EU Parliament felt it would have been better handled ifpursued under Article 75 TFEU so that they too could assert their voice. Also

argued that the OLP was the only procedure which protected fundamental

rights

o So essentially the Council adopted sanctions under Article 215 TFEU

! Restrictive measures under CFSP against individuals

! Council to act by QMV

! E Parl to be informed

o But EP claimed wrong base and advocates use of Article 75 TFEU

! EU Area of Freedom, Security and Justice

! Anti-terrorism measures

! Council and E Parl to act jointly under OLP

o Grand Chamber ruled on 19th July 2012:

! Arts 75 and 215 irreconcilable, so one must prevail

! Framers of Treaties deliberate choice of limited role of E Parl underCFSP

! Rejects E Parl claim that fundamental rights protection requires use

of OLP

! All EU institutions bound by EU Charter of FRs in making decisionsanyway

! Proper basis = Art 215 and so the Council was held to be right

Legal acts of the EU


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There are explicitly mentioned forms of secondary legislation under Article 288 TFEU, andare instruments used by the EU and provisions through which EU law is upheld

• Regulations:

o General measures which are directly applicable (ie binding in all MSS

without any further enactment)

! ‘’directly applicable’’ signifies that regulations are part of thenational legal systems without the need for separate national legal

measures

o Regulations are applied generally and will be binding in its entirety and

directly applicable in all member states; common to think of them as

legislation made by member states themselves. This is also done so as tosave time and ensure the survival of the EU; due to the thousands of

regulations that are enacted by the EU, if they had to separately

incorporate into every individual legal system of member states so as to belegally effective, the EU would seize to function effectively.

• Directives:

o Binding as to result to be achieved by a specified implementation date, but

leaving MSS to achieve via national measures

o Leave to the national authorities the choice of form and method as to how

to achieve the desired result

o Directives also uphold effectiveness of the EU in that they need not be

addressed to each individual member state but are nevertheless binding interms of the desired result which is to be achieved by the respective

member state; gives the EU valuable flexibility

o The ends which a member state is required to achieve are set out in

considerable detail

o Directives lead to a variety of problems in terms of the domestic courts

view on how the result should be achieved

Problems with directives and compliance by member states:

• An example is the Product Liability Directive 85/374

o MSS compromise over approaches to liability of manufacturers for dangerousproducts

o Permitted a ‘development risks defence’ to be available to MSS

! Enacted by UK in Consumer Protection Act 1987

o Commission infringement action against UK for failure to implement

directive properly


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o Commercial agenda in this case through the notion that UK wantedcorporate entities to remain in the UK and this decision was agreed only

due to a compromise by council

• In Case C-300/95 Commission v UK

o The directive said ‘’that the state of knowledge was not such as to enablethe defect to be detected’’

o The UK consumer protection act said ‘’state of knowledge not such that a

producer of products of the same description might be expected to have

discovered the defect’’

o Commission took the UK to the Court for incorrect implementation of the

directive – is it?

! A reasonableness defence and so the court held that because

national courts are obliged to read the UK defence in a waycompatible with the directive. This meant that if the UK court

doesn’t do so and provides a reasonableness answer then they aren’t

in breach

‘’Soft law’’ and the Open Method of Coordination (OMC)

‘’Soft law’’ is an umbrella term describing a number of decision-making models which

seeks to avoid the perceived weaknesses of ‘’hard’’, ‘’top down’’, EU level legislation

(such as what used to be called orthodox ‘’community method’’).

• MSS Objections to ‘hard’ law (Regs and Directives); preference for non-binding

‘soft law’

o Encapsulates recommendations and opinions which do not have binding

force; national courts can however still make reference to these measures

by the EU

• Soft law is a means of promoting consensus and convergence by information andcommunication

o For example, seeking models of best practice across member states and

establishing consultive and review mechanisms for their dissemination

• Eg Open Method of Co-Ordination (OMC)

o Recognised as a working method since 2000 and applied to employmentstrategy and various social policies

o Informal, sharing (good) practices, consensus, guidelines for common action

etc; development of convergence by learning from others’ experiences

o BUT, problems of accountability/predictability despite purporting to allow

and acknowledge diversity in different member states

Summary & Conclusions


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• Law-making procedures clearer post-Lisbon with OLP and QMV now the defaultrules

• More supranational? More EP power?

o Turf wars still possible – preferably solved by inter-institutional agreement

but otherwise end up before the Court

• Court applies ‘objective criteria’ test• Output of law-making as EU Regulations and Directives, but with increasing use of

‘soft law’ in form of negotiated/agreed targets and best practice arrangements.

EXERCISING POWERS: THE PRINCIPLE OF SUBSIDIARITY

Subsidiarity is meant to address the question in regard to who acts in a situation and who

is in a better position to act. Examines the question of whether it should be the EU or

Member States that act in a particular situation.

The question as to who can act is often problematic in the political sense as it assesses

who has control in regard to making decisions:


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• EU doesn’t possess exclusive competence, but often has shared competencebetween itself and member states

o The EU has competence (power) to adopt policies and legislation only in the

areas specified in the treaties.

o EU and national governments retain joint competence in other areas, suchas consumer protection

o Nevertheless national governments do retain some areas of exclusive

competence such as industry, culture and tourism

• The Lisbon treaty attempted to categorise EU powers

Bulk of Subsidiarity questions arise when dealing with issues of shared competences

• If both Member states and EU have the power to act, then the question as to whichinstitution should act is answered in Article 5(3) TEU, through the principle of

Subsidiarity

• According to Article 5(3)

o ‘’Under the principle of Subsidiarity, in areas which don’t fall within its

exclusive competence, the union shall act only if and in so far as theobjectives of the proposed action cannot be sufficiently achieved by the

member states, either at central level or at regional and local level, but

can rather, by reason of the scale or efforts of the proposed action, be

better achieved at union level.’’

o ‘’The institutions of the union shall apply the principle of Subsidiarity aslaid down in the protocol on the application of the principles of Subsidiarity

and proportionality. National Parliaments ensure compliance with the

principles of Subsidiarity in accordance with the procedure set out in that

protocol.’’

• The Lisbon treaty acknowledged that Subsidiarity should extend across vastspectrum of decision making questions

o EU can only act where objectives of the action would be better achieved

through their action; presumption that things should be left to the member

states unless the EU can do it bettero Subsidiarity requires that decisions be taken as closely as possible to the

citizen and that if action is taken at EU level as opposed to national/

regional/local level then it needs to be justified

o This is only in regard to the exercising of competence as opposed to the

allocation of such competence

o Political evaluation of legal principle when talking about ‘’application’’ ofSubsidiarity

Origins of Subsidiarity as a concept


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Has a strongly moral and religious tradition, much of which emanates from Catholicism. Asa secular political concept it is something which governs relationships between federal

and local level; the core and subsidiary

• Means of balancing roles of different levels of government

• Basic rule is that decisions should be taken as local a level as possible, such is thepresumption of Subsidiarity

In the specific context of the EU, it was introduced by the Maastricht Treaty. It is said that

there would never have been a treaty if Subsidiarity had not been included in the

Maastricht treaty. As the treaty was a big step in the development of the EU, the fact

Subsidiarity played a crucial role demonstrates its crucial nature

• Were considerable issues as to the member states signing up to EU provisions,however this doctrine provided some degree of reassurance

• Was it ‘A Treaty too far’? Expansion of EU competences into new fields

o But subsidiarity regulates exercise of already determined powers

• Said by some that Subsidiarity = ‘the word that saved Maastricht’

No repatriation of powers actually occurred under Subsidiarity as it was not aboutallocation of powers but rather the exercise; nevertheless the treaty allowed politicians to

say and act in the manner of John Major in political context

• The concept played a very useful role in political acts

•There is an omnipresent tension between the desire to make Subsidiarity a realityand the need to address problems at a European level so as to achieve EUobjectives; President Barroso of the commission made this point himself.

In regard to EU institutional application, the new protocol (Protocol (no 2) on the

application of the principles of Subsidiarity and proportionality) adopted by the Lisbon

treaty replaced 1997 version:

• Protocols have the same legal value as treaties and represent what the memberstates saw/see the manner in which Subsidiarity should apply; develops the detail

• Article 1 of the Protocol: ‘Each [EU] institution shall ensure constant respect of the

principles of Subsidiarity and proportionality’

• Art 5 draft EU legislation to contain detailed statement making it possible to

appraise compliance with Subsidiarity

o Including reasons substantiated by qualitative and, wherever possible,

quantitative indicators

! Theory is that there should be some impact assessment based on

quantitative terms

! Member states want this due to their political ambitions and

reassertion of their power


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o Max 40 hours working week

o Rest day=Sunday

o Court rejects claims of Subsidiarity infringement

o So, if Council thinks EU action warranted then it is?

o Court set aside one part of the directive (rest day being Sunday) but for a

different reason; excessive use of power to name Sunday. Breach ofproportionality not Subsidiarity.

• Case C-491/01R v Sec State Health ex parte BAT

o Eliminating barriers between MSS ‘cannot be sufficiently achieved by MSS

individually’

o Held that a single market couldn’t be enforced if member states could do

their own thing

• Most recent example is Case C-58/08 Vodafone and others v Sec State for

Business(Grand Chamber 8 June 2010)

o Key case on retail and wholesale charges.

o EU legislation on retail and wholesale charges for roaming mobile phonenetworks

o Arguments attempted to be made by Vodafone were that retail and

wholesale were different and retail intervention shouldn’t have happened;

inclusion of retail framework was breach of Subsidiarity

o Felt courts should have and could have left retail provisions to memberstates

o Judgment given in the case:

! Subsidiarity does not call into question the powers of the EU as

interpreted by the Court

! Recitals of the EU Reg clearly show interdependence of retail andwholesale charges for roaming services

! ‘That interdependence means that the [EU] legislature could

legitimately take the view that it had to intervene... Thus, by reason

of the effects of the common approach...the objective pursued by

that Reg could best be achieved at [Union] level.’

• Once again clarified this is about regulating powers already in

place

• Court simply asks question as to whether EU institutions

thought about decision

• Still demonstrates the same soft touch!


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The post-Lisbon rules

• New Protocol

o The Subsidiarity protocol contained in Protocol (no 2) of the Lisbon Treaty

applies only to draft legislative acts and doesn’t cover delegated or

implementing acts; provides no measure for national parliaments to checkdelegated acts even if it is possible that it may infringe Subsidiarity

o Distinguished between existence of competence and the utilisation of such

competence

o Can be seen as an acknowledgment that Subsidiarity works and has an

impact in a political context before legislation as opposed to after it has

been adopted

• New procedure, involving national Parliaments in the drafting stage of EU

legislation

o Lisbon treaty upgrades national parliamentary role in the legislative process

o In effect, national parliaments are given a role of scrutiny (not a formal

legislative role). At the same time as the commission proposes matters tothe parliament, it refers matters to national parliaments to see whether or

not there are any recommendations

o Aim is to give more recognition to the functioning of national parliaments

! Commission must send all legislative proposals on the outset to the

national parliaments at the same time as to the union institutions

! Article 4 of the Subsidiarity and Proportionality Protocol (n 94)

makes it clear how national parliaments must also be provided with

legislative resolutions of the European Parliament and positions

adopted by the Council of the EU

• Specific reference to national Parls in Art 12 TEU (Lisbon)

o ‘National Parliaments contribute actively to the good functioning of the

Union

o (b) by seeing to it that the principle of Subsidiarity is respected inaccordance with the procedures provided for in the protocol’’

National Parliaments in the Protocol:

• With Subsidiarity a big limitation is that the only thing national parliaments can do

is assert their opinions as to why they feel matters should be left to a national

jurisdiction

o National parliaments can therefore scrutinise and put forward opinions on

proposed EU legislation ensuring that Subsidiarity is applied

• All EU bodies must do is take note and account of national parliament’s views


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o The protocol imposes an obligation on the commission to consult widelybefore proposing legislative acts

o Commission must provide a detailed statement concerning proposed

legislation. Such a statement must contain financial implications of the

proposals and there should be qualitative indicators to show that theobjectives would be better reached through the EU as opposed to nationalparliaments.

• Article 4: Commission to send draft EU acts to national Parliaments at same time as

to Union legislator

• Art 6: Nat Parliaments have 8 weeks to send reasoned opinions why draft

legislation does not comply with Subsidiarity

• Nat Parls have 2 votes each (eg in UK one for HC, one for HL)

• Art 7 Protocol: EParl, Commission and Council‘shall take account of’ opinions ofnatParls

Impact of the votes of National Parliaments:

• The commission isnt politically in a position to disregard votes approved in thismanner; if there is a majority of some sort then they will undoubtedly be forced

into acting in some manner or another

• ‘’Yellow card’’

o Under Art 7(2) if a third of national votes are against legislation, the draft

must be reviewed by its initiator (the commission)

o After such a review it may decide to maintain, amend or withdraw the

proposal and reasons for such a decision must be given

• ‘’Orange card’’

o For OLP proposals, Art 7(3) states how a simple majority of natParl votes

will require Commission to produce reasoned opinion response

o 55% of Council or simple majority of E Parl can drop the measure

Empirical evidence post-Lisbon:

• Picture is created that national parliament’s aren’t making use of their scrutinising

functions:

• Lack of use is down to Lack of co-ordination by national Parliaments

o Insufficient to trigger yellow and orange cards

o Some natParls not engaging at all (eg Nordic Parls)

! On a number of occasions, Subsidiarity challenges were opposed byother member states who felt the legislation consistent with the


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o But lack of coordination among natParls; Often takes mutual disdain of anissue to bring people together; perhaps this is the master framework behind

unity of the EU and member states

• Will changes force more Court involvement or is Vodafone a clue to continued

reticence?

PART 2: THE EU LEGAL ORDER

Having established what the broad objectives of the EU are, and the structure of itsinstitutional framework, it is time to examine the special features which make the Union

its own legal order (Sui Generis). At least according to the court

It has been left to the CJEU to develop a raft of concepts and principles with which to

flesh out the character, application and accessibility of EU law; courts do so in ‘’the name

of effectiveness’’

SOURCES OF EU LAW

Primary sources of EU law are the EU treaties as amended:

• TEU

• TFEU

• Protocols

• (Charter of Fundamental Rights, which have same legal values as the treaties)

Secondary legislation• Regulations and directives as a result of EU institutional law-making, such as the

OLP for example

The court of Justice has also ‘’discovered’’ (by which it is meant they have essentially

invented) through its role as exclusive interpreter of the Treaties, a number of General

Principles of EU law

• Done this through its power as interpreter of EU Treaties which are the primary

sources of law

THE EU’S LEGAL ORDER AND SUPREMACY

Two primary questions to be asked:

1) Is the EU a legal system?

2) What is its relationship with national legal systems?

Is the EU a legal order?

• The Treaties are silent on this question

o Too controversial a question for the member states to want the EU to

address on political grounds


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• The Court of Justice has always taken the view that EEC/EC/EU law is distinctive

o Neither international law nor national law

o But a ‘sui generis’ legal order

o Why would the Court take this view?

• International law by large is about law applicable to member states and its

comparably unusual for international law to be exercised by individuals and EU lawis predominantly exercised increasingly by individuals

o Member states find it easier to opt in and out of international treaties than

EU law

• Legal theorists may differ: how many legal systems are there in the EU?

o Court has never wavered from its position that EU law is unique, however

legal theorists such as Julie Dixon do not share that view as that such ananalysis is correct and advocate the possibility of a plurality of legal

systems

• Extent of conflict is a significant and continuing problem

o Conflict is rare and national and EU court go out of their way to diffuseconflicts and come up with a resolution to the conflict

o Without coming to a theoretical solution, the two courts comes to a

pragmatic compromise

What is the court’s perspective regarding the EU as a legal order?

• The court has consistently maintained since the outset the uniqueness ofcommunity (now Union) law and its supremacy over conflicting national provisions.

• Court gets bolder in its language as development ensues and mentions the essential

signing away of sovereignty regarding adjudicationof EU matters

• In the case of Costa v ENEL

o Court makes strategic decision in this case in that EU law isn’t internationallaw as EU law creates rights for people

o Member states courts are bound to apply the legal decisions of the EU on

matters regarding EU

o Member states have limited their sovereign rights, ‘’albeit within limited

fields’’, and have therefore created a body of law which binds both theirnationals and themselves

• In Simmenthalthe court stated how in the advent of conflict between national and

EU law, EU law will prevail and national courts must set aside any provisions which

conflict

o EU law is a primary source of law


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o This is a neat trick by the CJEU in the sense that national courts must setaside their own laws. Not claiming jurisdiction but asserting EU supremacy

by imposing an obligation on national courts to conform

• In Opinion 1/91 Re the draft Treaty on a European Economic Area

o It was said how the community treaties established a new legal order forthe benefit of which the states have limited their sovereign rights, in everwider fields, and the subjects of which comprise not only member states

but also their nationals

• It was stated in Courage v Crehanhow the treaty created its own legal order which

was integrated into the member states

o Idea to note is that the EU is a legal system within which individuals haverights

o Best way to make treaty work is not to leave it in the hands of memberstates but to empower them to assert their rights individually

• The joint cases of Kadi and Al Barakaat International Foundation v Council and

Commission arose due to the way in which the EU implemented a UN sanctionwhich was challenged by the applicant on the basis that it violated his fundamental

rights

o CJEU upheld Kadi’s claim stating how whilst the EU was simply trying to

transpose UN sanctions, an individual’s human rights were governed by the

human rights provisions protecting an individual in the EU

o Court accepts international law but they have the right to challengedecisions which do not meet their standards of human rights protection

o The EU was heralded as a complete system of remedies

• A new European Patents court was proposed to be set up for the whole of Europe

(not just the EU), and this was the matter at hand in Opinion 1/09 On the Draft Agreement on the European and Community Patents Court, and such a court would

have exclusive rights over patent law and any associated matters

o CJEU and the courts of member states are held to be the conjunctive

guardians of the legal order of the EUo Court of justice is ensuring that national courts are the guardians of the EU

through binding them into the EU legal system

• They key elements in building the EU legal order are therefore:

o Limitation of Member State sovereignty

o Supremacy of EU law over conflicting national law

o Individual EU rights protected by national courts

o Establishment of EU remedies


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o Entrenchment of EU fundamental rights protection

Reception in Member States – parallel universes or worlds that collide?

The (failed) Constitutional Treaty 2004 would have acknowledged primacy of EU law;

however Declaration 17, attached to the EU Treaties, provides:

• ‘In accordance with well settled case law of the Court of Justice, the Treaties and

the law of the Union have primacy over the law of the Member States under theconditions laid down by the said case law’

• Not binding, but politically significant?

Must also be remembered that Art 19 TEU states how ‘Member States shall provide

remedies sufficient to ensure effective legal protection in the fields covered by Union law’

National legal systems deal with the reception of EU law through different methods, forexample in the UK this is done through section 2-3 of the European Communities Act 1972

as amended, and this is now restated in European Union Act 2011, part 3 section 18.

• Fiction of parliamentary sovereignty is essentially retained on the basis that EU law

only has supremacy because a national statute permits it to do so.

• States with written constitutions adopt techniques to accommodate EU law

• This has the effect however, that whenever there is a new treaty reform at EU

level clashes occur leading to litigation

o Typically, fundamental rights protection clashing with national constitutions

or when new Treaties to be ratified (eg Maastricht 1992, CT 2004 and Lisbon2009)

o German court for example, has a tendency to say that individuals are better

off under their constitution as opposed to EU law

A classic illustration of acceptance of the Court’s perspective of the supremacy of EU law

is in the Factortame saga:

• Merchant Shipping Act enacted in UK – nationality restrictions applied to boats

entitled to fish• (Then) EC Treaty included free movement rules, including freedom of

establishment, but the enactment of the Merchant Shipping Act had the effect that

Spanish Fishermen were prevented from fishing

• There were 3 different cases, each concerning different topics

o Compatibility: Did Merchant Shipping Act infringe free movement rules of

EC Treaty?

! Court of Justice: MSA blatant violation of a fundamental principle of

the Treaty which stated non-discrimination on grounds of nationality


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! HoLdisapply Act (no power to repeal it), ie Act remains English lawbut HoL to disregard it

! Thus HoL applying supremacy doctrine; in accordance with

Simmenthal

o Interim relief: No interim relief against the Crown in English law

! English law: no interim relief possible against the Crown

! Court of Justice: fishermen entitled to effective protection of their

[EU] rights of freedom of establishment (self-employed)

• CJEW felt the HoL should find a way to protect EU rights of

fishermen; HoLdisapply the bar on interim relief

• In effect, a new English remedy brought about from EUobligation to protect EU rights

o Damages: Action by Spanish fishermen against UK for serious breach of EC

law

! Court of Justice – conditions of EU principle of state liability

satisfied (see later work), ie an EU remedy.HoL award damages

• As a result of this case law, clear you can sue a state which falls short of its treaty

obligation

• EU law permeates through a variety of channels such as the invention of a new

national remedy as well as an EU remedy of damages which is accessible directlyby the persons concerned; complete assimilation of the supreme court’s view andthe CJEU’s ambitions for a legal order

Challenges from national courts:

• Major challenges made by the German Constitutional Court

o In Brunner the German court effectively stated how whilst the Maastricht

Treaty was compatible with the German constitution, they reserved theright to rule out any EU provisions deemed to not be

o This was softened in the T Port case whereby no challenge unlessestablished body of Court of Justice case law offending protection of

fundamental rights

• A major judgment was made in relation to the compatibility of the Lisbon treatywith German basic law in Gauweiler

o Subjects Lisbon Treaty to scathing criticism for lack of democracy

o Rejects idea of ‘absolute primacy’ of Union law, which would be

‘constitutionally objectionable’ under the Basic Law


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! Said it merely confirms the legal situation in regard to the absoluteprimacy of application of Union law, as interpreted by the Federal

Constitutional Court, but doesn't recognise it.

! ‘The Basic Law aims to integrate Germany into the legal community

of peaceful and free states, but does not waive the sovereigntycontained in the last instance in the German constitution...’

o It is no contradiction to the objective of openness towards European law if

exceptionally, and under special and narrow conditions, the Federal

Constitutional court declares EU law inapplicable in Germany.

! Justifies its right to rule out EU law in the future, despite finding

that once again the Lisbon treaty is compatible; once again politicalmotives to appease the domestic population

o But ultimately the BvG declared the Lisbon Treaty compatible

o CJEU does respond and invented fundamental rights so as to put away

threats coming from the likes of the BvG

Is such conflict between national courts and the CJEU healthy?

• Supremacy resistance not confined to Germany!

o Polish courts had a lot to say in relation to the 2004 constitutional treaty

• Conflict is relatively healthy as it is an effective form of negotiation; contrast

between HoL attitude and the BvG one. Demonstrates how the court of justice

modifies its own position in accordance with contemporary domestic views

• Putting pressure on the Court of Justice: a good thing for the EU legal order?

o Still remains that the CJEU and national supreme courts are eager to avoid

conflict as well, Grogan is a prime example of where a concession was

made for the domestic court by the CJEU; reciprocal relationship whereby

the CJEU reconciled its own view with that of the Irish

• Do these worlds collide or are they parallel universes?

o Who has kompetenzkompetenz ?? Can there be a theoretical solution?

Nobody wants to answer the question so as to avoid conflict

! Very little ACTUAL disobedience by national courts, who still refer

questions under Art 267 TFEU for interpretations of EU law by theCourt of Justice

Summary and Conclusions

• The Court of Justice has deliberately embarked on creating a distinctive EU legal

order, supreme over conflicting national law

• National supreme courts occupy key position in accommodating supremacy doctrine

within own constitutional terms and arrangements


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o Easiest way to kill off EU law is if national courts stopped using it andstopped sending questions for clarity to the CJEU

• But judicial disobedience is comparatively rare: Court of Justice and national

supreme courts rationalise their own positions to avoid conflict situations

o Matter of mutual compromise

ACCESS TO AND ENJOYMENT OF EU LAW: THE COURT’S PRINCIPLES FOR

INDIVIDUAL PROTECTION

It is now time to examine the particular devices used by the Court of Justice to allow

individuals access and enjoyment of EU law. The following principles aren’t conferredexplicitly through the treaties but have been developed by the Court to make the treaties

work and remain effective.

The principles have evolved over a period of time, and are: Direct effect, incidental/

exclusionary effect, general principles and indirect effect

1) Direct effect

The broad definition given to Direct effect is that it refers to provisions of binding EU lawwhich if found to be sufficiently clear, precise and unconditional, they would be

considered justiciable and can be invoked and relied on by individuals before national

courts

• This doctrine endows EU provisions with the characteristic that they may be

enforced by individuals in their national courts

• If a provision has direct effect, it means individuals (natural persons andbusinesses) can enforce it in the national court

How to make the treaties work at ground level:

• Allow individuals to access and enjoy EU rights

• Private enforcement through national courts to supplement and strengthen Treatymodel of actions by the Commission against defaulting MSS

• Embedding EU law in national legal systems

Problems facing the court:

• Consistency and legitimacy when creating set of principles not explicitly contained

in the Treaties

o Court isn’t always consistent in what it tries to do or how it goes about

achieving its objectives

• The special nature of EU Directives as legal instruments

o Regarding directives, the court is constrained in terms of what the

definition of a directive is; contextual problem with the treaties in doingwhat the court wishes it to do


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Establishing direct effect

The notion of direct effect follows the idea that if something is directly effective it means

an individual can rely on it in a national court. Under Article 258 of the TFEU the

commission is able to sue member states before the European Court of Justice for breach

of EU law• The earliest principle established by the Court

• The ECJ held that treaty articles could on certain conditions have direct effect to

the extent that individuals could rely on them before their national courts and

challenge the actions of their nation for violation of community law

Only the Court as the interpreter of EU law may declare a provision to have direct effect.

The standard test is derived from Van Gend en Loos

• Concerned a treaty provision (Art 12 EC (now Art 30 TFEU)) which said there should

be no border taxes between states; negative obligation

• A private firm said they should not have to pay such taxes and the AG essentially

said that in terms of an enforcement basis policies are addressed to member states

as opposed to individuals

• Court followed the approach that individuals are the beneficiaries of the treaties;

essentially direct effect is the capacity of a provision of EU law to be invoked

before a national court

• The ECJ felt that the ratification of the treaty is an acknowledgement that

community law has an authority that it can be relied upon by nationals before their

courts and tribunals; community law was intended to confer rights upon individualswhich were to become part of their legal framework.

• Classical definition of direct effect is that it essentially provides for a provision of

EU law to confer rights on individuals which they may enforce before national

courts

• It was felt that Article 267 of the TFEU had the idea in mind that parties before

national courts could plead and rely on points of community law; Article 267

supported the notion that individuals could invoke community law so as to

challenge inconsistent national actions

o The ECJ read the text of the Article in such a way so as to further what itfeels to be an underlying and evolving aim of the community

• Requires a provision to demonstrate the following elements in order to be directly

effective

o Clear and unambiguous

o Unconditional

o Not dependent on further action by commission or national authorities

Later application of VGL criteria:


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• The case of Defrenne v Sabena concerned equal pay issues and the question waswhether or not an employee could sue her employer on the treaty itself (then

Article 119 EC, now Article 157 TFEU) which stated ‘‘Each MS shall ensure the

application of the principle that men and women should receive equal pay for

equal work’’.

o She and other female cabin crew were paid less than males

o Horizontal relationship between employer and employee

o Fact it included ‘’men and woman’’ showed how it applied equally,

‘’principle’’ shows how it is of the utmost importance; assesses whether

obligation to secure equal pay is clear and unconditional

o Held that the provision is directly effective from the point of the case andnot retrospectively

• Therefore a treaty article will be accorded direct effect for as long as it isintended to confer rights on individuals and that it is sufficiently clear, precise and

unconditional:

o By unconditional it means it must set out an obligation that isn’t qualifiedby any condition or subject to the taking of any measure either by the EU

institutions or by the member states

o By sufficiently precise it means it must be relied on by an individual and

applied by a court where it sets out an obligation in unequivocal terms

• For example would Article 19 TFEU satisfy VGL criteria for direct effect? It states

‘’the Council, acting unanimously in accordance with a special legislativeprocedure and after obtaining the consent of the European Parliament, may take

appropriate action to combat discrimination based on sex, racial or ethnic origin,

religion or belief, disability, age or sexual orientation”

o Word ‘’may’’ shows how it isn’t directly effective

• Not all provisions will be treated as directly effective however. Article 4(3) TEU

states ‘’Member States shall take any appropriate measure…to ensure fulfilment of

the obligations arising out of the Treaties. The Member States shall facilitate the

achievement of the Community’s tasks and refrain from any measure which could

jeopardise the attainment of the Union’s objectives.”

o To give direct effect to this provision would mean to give direct effect to all

the obligations contained within

o So-called ‘’loyalty clause’’

Direct effect applied to secondary legislation: the problem with directives

Under article 288 TFEU, directives are defined a binding regarding the result to beachieved by the member states and provides a set time period for implementation, but

leaves implementation to the member states


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• One of the main instruments of harmonisation used by the EU to coordinate thelaws of member states

• Implementation doesn’t need to follow a uniformed approach but nevertheless the

result/aim of the directive must be secured

In the case of Van Duyn it was essentially stated how the nature of directives would beundermined if individuals were not allowed to rely on them before their national courts;directives would be more effectively enforced if individuals were in a position to rely upon

them as this would essentially strengthen the overall effectiveness of EU law. Court made

clear in this case that directives would only have direct effect where it satisfied VGL

criteria (being clear, precise and unconditional). Further conditions were later applied:

• Implementation period must have passed (as shown in Ratti)

o In the Ratti case it was held that a member state had committed a wrong

by not implementing the directive on time, and therefore could not use this

wrong to deny the binding effect of the directive after the date forimplementation.

• The relationship is a ‘’vertical’’ one (as shown in Marshall)

o The courts made a distinction between vertical and horizontal relationships

in the sense that involvement with the state or organ of the state (vertical)

is supported as opposed to a horizontal involvement

o The case of Marshall made it very clear that direct effect of a directive

could be pleaded against the state but not against an individual; individualsaren’t obliged to fulfil directives

! Case concerned the Equal Treatment Directive 76/207 which

prohibits sex discrimination in dismissal cases

! The applicant was employed by Area Health Authority and state

pensions at 65 for men, 60 for women. She was sacked when she was62; relies on Directive to claim unfair dismissal

! Court felt the directive could be relied upon. Distinction between

vertical and horizontal; the employers were held to be organs of the

state therefore vertical relationship

! AG Slynn in the case felt that to give ‘’horizontal effect’’ todirectives in the sense of allowing them to impose obligations upon

an individual would blur the line between directives and regulations

o The ECJ felt that a directive cannot impose obligations on an individual and

cannot be relied against an individual

Dividing line between vertical and horizontal:

• Follows the argument that since the duty to implement only falls upon the member

state, the only individuals in a relationship with the state should be able to rely on

an (unimplemented) directive


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• If something can be considered as an ‘’organ of the state’’ this will regard it asbeing in a vertical relationship with an individual

o The notion of ‘’organ of the state’’ is a very wide test and the court has

said that they will try and get as many people into the ‘’vertical bag’’ as

they can• In Foster v British Gas the court stated who they would regard as being an organ of

the state

o Covers bodies made responsible by the State for providing a public service

under the control of the State and having special powers for that purpose (2

LIMBS TEST)

o Not whether you are state owned but rather if the service is of the state

o Broad test allows for privatised industries to be regarded as organs of the

state due to the service they provide being under the control of the state

o Organ of the state concept is quite wide and vertical positions aren’t

limited to the state in a narrow sense

o This case indicates that a body which has been made responsible, under thecontrol of the state, for the provision of a public service is included in the

EU definition of a public body

• In the case of Vasallo concerning an Italian Hospital which was independent but

funded by the state; regarded as an organ of the state under the 2 limb test from

Foster

• Sussex could be regarded as a state entity due to the fact it was founded by the

powers of the crown, however private universities are not organs of the state

Is this an indefensible distinction?

• Does the bar on horizontal direct effect of directives discriminate against parties in

private relationships?

• Why should ‘accident’ of who employs you make a difference to your legal rights?

o Inequitable treatment of individuals

• AG Lenz in Dori led the critique of such a distinction and the refusal to not allow

horizontal direct effect of directives

o Widespread use of directives, esp

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