SEBENTA DE DCUE

2024/2025
NOVA SCHOOL OF LAW
Luísa Beja
Maria Luísa Beja DCUE

What is the European Union?

The standard division
Confederation:
- Governed by international law: In a confederation, states are bound by international agreements
rather than a common constitution. Cooperation is voluntary.
- Unanimity in decision-making: All member states must agree on decisions, which gives each state
veto power.
- No independent financial resources: Confederations rely on contributions from member states.
- Sovereignty remains with the states: Member states retain most of their powers and sovereignty.
Federation:
- A union of states ruled by a federal constitution that establishes a central authority.
o Federal Constitution: A federal constitution sets up a country with two levels of
government: a national government and regional governments. Each has its own powers—
national for big issues, regional for local matters. Both levels follow the same basic rules and
protect citizens’ rights.
- Decisions can be made by majority rule, allowing for more efficient governance.
- Possesses independent financial resources, which enables it to raise funds autonomously.
- Sovereignty is shared between the central government and member states, leading to a more unified
and policy framework.
o Sovereignty means the highest authority in a territory. A sovereign government can make its
own decisions without interference. In a country, this usually means the government has full
control over its laws, policies, and borders. Sovereignty allows a state to act independently
and be self-governing.

What is the EU?

- Governed by Treaties, but part of them have a constitutional content (institutions and human
rights)
- Partly governed by unanimity, partly by majority, meaning that decisions in a group or organization
are made using two different voting methods, allowing more flexibility (some sensitive issues
require full agreement (unanimity), while others can move forward with majority support.
- No independent fiscal power, but semi-automatic transfer of money (own resources).
o Independent fiscal power: The ability of a government to collect taxes and decide on public
spending without interference from higher authorities.
- “Diffuse” sovereignty:
o A form of sovereignty where power and authority are distributed across multiple actors
(e.g., states, institutions, organizations) rather than being concentrated in a single entity. In
this arrangement, no one actor holds absolute control, leading to shared decision-making
and governance.

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- Neither federal, nor confederal

Federal System Confederal System

In a federal system, power is divided A confederal system consists of a loose

between a central (national) government alliance of independent states that
and regional (state or provincial) delegate limited powers to a central
governments. The central government authority. In this structure, the central
typically has significant authority and can authority has little power and mainly
enact (constitute, legislate and approve) acts on behalf of the member states.
laws that apply to all regions.
- The US’ government has exclusive
powers, and both levels of government
have authority to legislate.

- The EU operates under a framework of treaties (guided by these treaties), which contain
constitutional elements related to its institutions and fundamental rights. Decision-making
mechanisms are mixed, requiring unanimity in some areas and majority voting in others.
Although it lacks fully independent fiscal power, it benefits from a semi-automatic transfer of
funds through its budgetary system, known as 'own resources'. The concept of 'diffuse sovereignty'
characterizes its governance: member states retain powers in certain areas while ceding others to the
EU. The EU is recognized as a sui generis union, distinct from traditional confederations or
federations, allowing for a blend of shared and self-rule among member states.
- Foundations of EU Law: The EU aims to achieve an 'ever closer union,' focusing on principles
such as equality and sincere cooperation, as outlined in the Treaty on European Union (TEU).
Founding values include respect for human dignity, freedom, democracy, equality, and the rule of
law, creating mutual trust among states and ensuring adherence to EU laws.

A Union of States
- Beyond Federal vs. Confederal Models: The European Union (EU) defies the traditional
"federal" or "confederal" labels. Instead, it is best described as a Union of States and a sui
generis (unique) supranational institution. Unlike a traditional federation, the EU doesn’t have
a single, overarching constitution. Instead, it operates based on treaties agreed upon by its
member states, which contain constitutional elements (like fundamental rights and institutional
structures) that govern the EU.
- Mixed Institutional Structure: The EU has a mixed structure, meaning it has institutions
representing both the interests of the individual member states and the collective interests of the
Union. For example:
- The Council of the European Union represents the governments of each member state,
reflecting national interests.
- The European Parliament represents EU citizens directly, providing a democratic foundation at
the Union level.
- EU Citizenship: Citizenship of the EU grants individuals a special and additional status on
top of their national citizenship. This status allows EU citizens the right to live, work, and travel
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freely across member states and provides additional protections against discrimination based on
nationality. This concept was established to strengthen ties among citizens and ensure that they
benefit directly from the EU.
- Direct Effect and Primacy of EU Law: EU law has direct effect, meaning that it can create
rights and obligations directly enforceable by individuals within the member states, without
needing national legislation. Additionally, the principle of primacy ensures that EU law takes
precedence over conflicting national laws. This principle is crucial for maintaining uniformity
and coherence in EU policies across member states.
o Direct Effect: Direct effect allows individuals to rely on EU law in national courts. For
instance, if an EU regulation grants specific labor rights, a citizen can invoke those rights
in their own country’s courts, even if national law doesn’t explicitly provide for them.
o Primacy: The principle of primacy ensures that EU law overrides national law if the two
conflict. This supports the EU’s goal of creating a cohesive legal framework across
member states.
- Collective vs. Individual Sovereignty: While the EU member states are collectively sovereign,
meaning they exercise significant authority as a group, individual states have limited sovereignty
within the EU framework. They have transferred certain powers to the EU (such as trade and
customs) to enable stronger, unified policies. This collective sovereignty allows the EU to
function as a unified entity in specific areas, like negotiating international trade deals.
- Treaty-Based Constitutional Framework: The EU’s legal structure is built on its founding
treaties (primarily the Treaty on European Union and the Treaty on the Functioning of the
European Union). These treaties form the autonomous basis of EU law and serve as the EU’s
equivalent of a constitution, setting out principles, fundamental rights, and the roles of
institutions.
- Unique Supranational Governance: The EU transcends simple federal and confederal models
by creating a new form of governance. This supranational structure means that EU institutions
can make decisions that are binding on member states, even if some states dissent. This
characteristic is visible in areas like competition law and environmental policy, where the EU
can pass regulations that are directly enforceable in all member states.

EU Constitutional Law
- “A society in which the observance of the law is not assured, nor the separation of powers defined,
has no constitution at all” (Declaration of the rights of man and the citizen, 1789)
o A society lacking the assurance of law enforcement and a clearly defined separation of
powers effectively lacks a constitution
- The “constitution” of the EU encompasses:
o Structure of powers: The distribution of authority among various EU institutions, including
the European Commission, European Parliament, and the Council of the European Union,
each responsible for distinct functions within the legislative and executive branches.
o Fundamental Rights: The Charter of Fundamental Rights of the European Union
enshrines essential rights and freedoms, which are integral to the EU's legal framework.
- The EU operates without a singular, formal constitution; instead, its constitutional identity arises
from multiple treaties, such as the Treaty on European Union (TEU) and the Treaty on the
Functioning of the European Union (TFEU). These treaties define the structure of powers, outline
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institutional roles, and establish the principle of separation of powers, whereby legislative,
executive, and judicial functions are allocated among different institutions. Additionally, the
principles of legal certainty, proportionality, and the rule of law underpin the EU's constitutional
order, ensuring that actions taken by its institutions are legally valid and accountable.

History and Treaty Framework

History: the origins of the European integration
- In the aftermath of World War II, there was a pressing need for stability across the continent,
particularly in the context of rising tensions with the Soviet Union. Winston Churchill’s Zurich
speech in 1946 highlighted the vision for a united Europe as a means of ensuring peace and
countering Soviet influence.
- This vision led to the establishment of the Council of Europe in 1949, which aimed to promote
democracy, human rights, and the rule of law among European nations. Around the same time,
other organizations such as NATO were formed to enhance collective security and foster
cooperation among Western European states.
The Schuman Declaration (9 May 1950)
- On 9 May 1950, French Foreign Minister Robert Schuman delivered a groundbreaking
declaration that marked a pivotal moment in European history. Schuman articulated the
necessity for cooperation between France and Germany as a means to prevent future wars on
the continent. He stated, “A united Europe was not achieved, and we had war. Europe will not
be made all at once, or according to a single plan. It will be built through concrete achievements
that first create a de facto solidarity. The coming together of the nations of Europe requires the
elimination of the age-old opposition of France and Germany.”
- The key proposal of the Schuman Declaration was the pooling of coal and steel production
between France and Germany under a shared authority. This initiative aimed to create common
foundations for economic development, serving as the first step toward the eventual federation
of Europe. Schuman argued that this solidarity in production would make war between the two
nations “not merely unthinkable, but materially impossible.”
- Outcomes and Impact
- The Schuman Declaration led to the creation of the European Coal and Steel Community
(ECSC), which was established in 1951. This initial step laid the groundwork for further
economic and political integration in Europe.
- The EU’s legal framework has since expanded significantly, evolving from the European
Economic Community (EEC) established by the Treaty of Rome in 1957 to the current
European Union, shaped by treaties such as Maastricht, Amsterdam, and Lisbon. These treaties
have redefined the EU’s institutions, powers, and roles, centralizing sovereignty and broadening
the scope of its policies.
- The significance of 9 May is celebrated annually as Europe Day, commemorating the start of
European integration and the ongoing journey toward unity and cooperation among European
nations.
ECSC Treaty, 1951
- The European Coal and Steel Community (ECSC) Treaty, signed in 1951, established a
common market for coal and steel among six founding nations: Belgium, France, West
Germany, Italy, Luxembourg, and the Netherlands, collectively known as the Inner Six. This
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was a significant step toward economic integration in post-war Europe, designed to promote
cooperation and prevent conflict over these vital resources.
- Governance Structure
- The governance of the ECSC was characterized by several key institutions:
o High Authority: This body was responsible for the implementation of the treaty and had
the power to make decisions to ensure the effective functioning of the common market
for coal and steel. It operated independently of national governments to foster
supranational cooperation.
o Council of Ministers: Comprising representatives from the member states, this council
played a crucial role in the decision-making process, particularly in areas requiring
cooperation between governments.
o Assembly: This institution consisted of delegates from the national parliaments of the
member states. Its role was to provide democratic oversight and contribute to the
legislative process, reinforcing the connection between the ECSC and national political
systems.
o Court of Justice: The Court was established to ensure that the provisions of the treaty
were upheld and to adjudicate disputes that arose under its terms, thereby maintaining
the rule of law within the ECSC framework.
- The ECSC Treaty served as a foundational element in the evolution of European integration,
promoting economic cooperation and solidarity among its member states. Although the ECSC
Treaty officially expired in 2002, its legacy continued to influence the development of
subsequent European institutions and laid the groundwork for the establishment of the
European Union.

European Defence Community (1952)

- The European Defence Community (EDC) was proposed in 1952 as a response to the need for
a coordinated defense strategy in post-war Europe. The Treaty on Common Defence aimed to
create a supranational military force, pooling resources and defense capabilities among six
member states: Belgium, France, Italy, Luxembourg, the Netherlands, and West Germany.
- However, the EDC faced significant political challenges, most notably when the French
National Assembly rejected the treaty in 1954. This refusal effectively stalled the project,
demonstrating the difficulties of achieving consensus on defense matters among European
nations.
- Compensatory Measures
o In the absence of the EDC, Western European countries sought alternative arrangements
for collective defense. The establishment of NATO (North Atlantic Treaty
Organization) provided a framework for military cooperation and collective security
among Western nations, reinforcing their commitment to mutual defense against
external threats. Additionally, the Western European Union (WEU) was created as a
defense organization to address European security needs, although its relevance
diminished over time.
-
o In 2011, the functions of the WEU were largely taken over by the European Union's
Common Foreign and Security Policy (CFSP), which aimed to enhance the EU's role in
global security and defense matters.

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- Current Status and Trends

o While defense remains primarily a state competence, there has been an increase in
voluntary cooperation among EU member states since 2022, reflecting a growing
recognition of the need for collaborative defense initiatives in response to evolving
security challenges.
o The development of the EDC and its subsequent challenges marked a significant turning
point in European integration, shifting the focus from political and military cooperation
to greater economic integration. The early efforts to create a unified defense structure
highlighted the complexities of security collaboration and the importance of political
will, laying the groundwork for ongoing discussions about defense and security in the
context of the broader EU framework.
EEC Treaty and Euratom (1957)
- European Economic Community (EEC): The Treaty of Rome, signed in 1957, established the
EEC with the main objective of creating a common market. This market aimed to enable the
free movement of goods, services, people, and capital among member states, promoting
economic integration and regional stability.
- Flanking Policies: To support this common market, the EEC introduced additional policies in
trade, agriculture, and transport. These policies helped harmonize regulations across member
states, creating a more unified and cooperative economic environment.
Governance Structure
The European Economic Community (EEC) was organized with several key institutions to ensure
effective governance:
- European commission: served as the executive body, responsible for implementing policies and
ensuring compliance with treaty provisions.
- Council of ministers: made up of representatives from member states, this body was central to
decision making, especially on intergovernmental matters.
- Assembly: consisting of delegates from national parliaments, it provided democrativ oversight
and input itno legislative process.
- Court of justice: tasked with interpretating EEC law, the Court ensured consistent application
across member states, upholding the rule of law.
The EEC’s decisions, issued a regulations and binding decisions, promoted and shared governance
model among members

Euratom
- Alongside the EEC, the European Atomic Energy Community (Euratom) was also founded in
1957 under the Treaty of Rome. Euratom aimed to create a common market for nuclear energy
to support peaceful nuclear technology development. It shared a governance structure similar to
the EEC, with its own Commission, Council and Court of Justice, fostering a coordinated
approach to nuclear energy in Europe.

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Merger Treaty (1965)

- The governance structures of the EEC and Euratom were further streamlined with the Merger
Treaty, also known as the Treaty of Brussels, signed in 1965. This treaty unified the Council and
the Commission of the EEC and Euratom, creating a more cohesive administrative framework
for the two communities. Although the EEC and Euratom shared the Assembly and the Court
of Justice from their inception, the Merger Treaty facilitated closer cooperation and integration
between the two entities, enhancing their efficiency and effectiveness in addressing common
goals.
- Together, the establishment of the EEC and Euratom marked a significant milestone in
European integration, setting the stage for the future development of the European Union.
The Empty Chair Crisis (1965-1966)
In the EEC's early years, substantial progress was made toward economic integration. However,
political challenges emerged over the extent of supranational governance.
- In 1965, French President Charles de Gaulle instructed the French government to boycott EEC
meetings to prevent a shift toward majority voting and supranationalism, which he feared
would erode French sovereignty. This "empty chair" crisis brought EEC decision-making to a
standstill, as France’s absence prevented key actions.
- Blocking the UK and the Luxembourg Compromise
o De Gaulle also blocked the United Kingdom’s membership, arguing that British ties
with the United States conflicted with the EEC’s vision.
- To solve the crisis, the Luxembourg Compromise (1966) established that decisions involving
“vital national interests” would require unanimity rather than majority voting. This
compromise balanced integration with national sovereignty and served as an informal
“constitutional convention,” influencing EEC decision-making and laying the foundations for
the future EU.

The Seventies: slow progress

- Own resources (1970 and 1975): the EEC gained budgetary independence through direct
funding from sources like customs duties, agricultural taxes, and a share of VAT, allowing it to
rely less on rational contributions.
- New members: Denmark, Ireland, and the United Kingdom joined the EEC, expanding the
Community and enhancing its political and economic influence.
- European Council Established: regular meetings between Heads of State and Government
began, formalizing the European Council as a key platform for setting long-term goals and
addressing strategic issues.
- Direct Elections for the Assembly (1976): the decision to hold direct elections for the Assembly
led to its first election in 1979, transforming it into the European Parliament, with increased
democratic legitimacy.
- From Currency Snake to European Monetary System (EMS) (1978): the EEC moved from
loose arrangement of fixed exchange rates (the currency snake) to the European Monetary
System, laying groundwork for future economic and monetary union.

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- The Court of Justice’s influence: through landmark rulings in the 1960s and 70s, the CJ served
as a hidden engine of integration, strengthening the legal foundations of European Law and
expanding its reach.

Single European Act (1986)

- Enlargement: Greece joined the EEC in 1981, followed by Spain and Portugal (1986), further
expanding the Community and integrating Southern Europe, also known as Mediterranean
Europe.
- SEA, signed in 1986, introduced multiple changes to deepen integration:
o Governance: Court of First Instance and a more frequent majority vote in the Council,
facilitating more efficient decision-making.
o New Competences: new powers in areas like environment and research
o Coordination in economic and monetary policies: strengthened cooperation in
economic and monetary policies.
o Social policies and “area without internal frontiers”: advanced social policies and the
creation of an area without internal frontiers to promote the free movement of people,
goods, services, and capital.
o Budgetary Framework: Introduced contributions based on national GDP, leading to the
Multiannual Financial Framework (MFF), with a more decisive role for the European
Parliament in budgetary matters.

The Maastricht Treaty (1993)

- Push for Greater Economic and Monetary Union: growing recognition of the need for
stronger economic ties and monetary coordination amongst member states.
- New Geopolitical Landscape: the fall of the Eastern Bloc and the reunification of Germany
reshaped European priorities, emphasizing stability and unity
- Separate Forms of Integration: the Schengen Agreement (1985) enabled passport-free travel,
and the Dublin Convention (1990) established rules for asylum applications, both advancing
integration outside formal EU structures.
- The Maastricht Treaty (1993): Driven by these factors, the Maastricht Treaty marked a
dramatic leap in integration, setting the framework for:
o Monetary Union and Economic Coordination: Initiated the first stage toward a single
currency.
o EU Citizenship: Established a common European citizenship with shared rights and
freedoms.
o Common Foreign and Security Policy (CFSP) & Justice and Home Affairs (JHA):
Created pillars for joint action in foreign policy and security, along with cooperation in
justice matters.
o Expanded Competences: Gave the EU new areas of authority, such as in the
environment and public health.
- Principles of Subsidiarity and National Identity: Ensured that decisions are made as closely as
possible to citizens, respecting national identity. Opt-outs were provided for countries like the
UK and Denmark.

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- Challenges in Ratification: Ratification faced resistance, with tough approvals in France,

Denmark, the UK, and Germany, highlighting the balancing act between national sovereignty
and deeper integration.
The Greek Temple
- The EC merged the three Communities (from EEC to EC)  mostly supranational method
(qualified majority)
- Pillars 2 and 3 are subject to the intergovernmental method (Council-governance and
unanimity), special regulative instruments
- Source: R. Schuetze, EU Law (OUP 2021)
+imagem por adicionar

From Maastricht to Lisbon: intermediate steps

- Austria, Sweden and Finland join the EU (1995)
- EMU  Stability and Growth Pact and ESCB, ECB (1994, second stage)
- Schengen ratified by all MSs (but UK and Ireland) by 1997
- Dublin Convention ratified by 1997 and incorporated into EU law
- EMU  fixed exchange rated (third stage, 1999)

From Maastricht to Lisbon: Amsterdam (1997)

- Amsterdam Treaty (1997):
o High Representative for Foreign and Security Policy
o The values of the EU and potential institutional implications (Article 7 TEU)
o Co-decision procedure for the First Pillar and vote of confidence in the EU Parliament
for the Commission (towards a supranational executive)
o From JHA to Area of Freedom, Security, and Justice (AFSJ)  asylum and migration,
border controls, and cooperation in civil and criminal proceedings under the first pillar.
Schengen incorporated
o Enhanced cooperation

From Maastricht to Lisbon: Nice and the Charter (1999-2000)

- Nice Treaty added a few technical adjustments (e.g., slight reform of qualified majority in the
Council)
- A Convention had been called to draft a Charter of Fundamental Rights  Representatives of
the national Parliaments, governments, EU Parliament, and Commission
- Charter “proclaimed” at the European Council in Nice (2000)  Not binding for the time being

From Maastricht to Lisbon: the failed Constitutional Treaty (2004-2005)

- Vast enlargement to the East: Cyprus, the Czech Republic, Estonia, Hungary, Latvia,
Lithuania, Malta, Poland, Slovakia, and Slovenia (2004). Bulgaria and Romania in 2007
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- A “constitution” for Europe  Convention to draft a Constitutional Treaty (2002), the text
would be then passed to an intergovernmental conference
o Stronger EP, more involvement of national parliaments, binding Charter, simpler system
of competences, symbolic elements (flag, “constitution”, EU “laws”)
o Rejected at the French and Dutch referenda (2005)

The Lisbon Treaty (2009)

- After 2 years of pause, a new ICG largely elaborates on the previous Constitution Treaty 
Lisbon Treaty (2009). Difficulties in ratification in Ireland and Germany
o Abolition of the three pillars structure and the EC Community  TEU and TFEU
o Binding Charter
o Reform and expansion of competences
o Stronger involvement of national Parliaments
o Ordinary legislative procedure
o European Council as an institution

The Treaties: 2009-current

- Treaty on the European Union (TEU): 55 articles, Six Titles: Common Provisions –
Democratic Principles – Institutions – Enhanced Cooperation – External action and CFSP –
Final Provisions
- Treaty on the Functioning of the EU (TFEU): 358 articles, Seven Parts: Principles –
Citizenship (non-discrimination) – Internal Policies – Overseas Associations – External Action
– Institution and Finances
- The EU operates under a set of exclusive, shared, and supporting competencies. Exclusive
competencies, such as the customs union, are solely under EU control, while shared
competences, like agriculture and environmental policy, are jointly managed. Supporting
competences allow the EU to aid national policies without superseding them.
- The TEU and TFEU, along with the Charter of Fundamental Rights, define the EU’s primary
legal framework. They provide the foundation for EU governance and outline member states'
roles and fundamental rights.
- Charter of Fundamental Rights of the EU: 54 articles, 7 Chapters
- 37 Protocols (see art. 51 TEU), 2 Annexes (lists of products/overseas territories) 65
Declarations

Bottom line: a (more) political Union

- “Ever closer union”  political union: equality, sincere cooperation
- Article 2 TEU: “The Union is founded on the values of respect for human 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
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which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women
and men prevail.”
- Article 6 TEU
- Single market, AFSJ, Schengen, monetary union and economic coordination, Dublin system,
CFSP
- These principles govern the EU’s competences, ensuring that actions are taken at the EU level
only if they are more effective than national measures, preventing overreach.
From Lisbon onwards (2009-2024)
- Several reforms of the economic governance in the face of the financial crisis: ESM stability
mechanism, ECB’s purchasing programs (OMT, PSPP)
- Croatia joined the EU (2013)
- Brexit (2016-2020): UK decided to leave in June 2016, withdrawal became effective in January
2020. A Withdrawal Agreement governs the rights of EU citizens in the UK and of British
citizens in the EU
- Post-pandemic recovery plan  NGEU governance
- Several reforms of migration and asylum to govern migration fluxes from the Mediterranean
and the Balkans (last major reform in 2024)

Enhanced Cooperation
- The Treaties allow for closer integration among States willing to “go ahead” (article 20 TEU)
- At least 9 Member States  all MS participate in “enhance” Council, but only members vote
- Last resort and open to participation from other Member States  Commission will evaluate if
the MS respects the conditions for participation, Council adopts interim measures
- Differentiated integration can also occur outside the framework of the Treaties (e.g., the ESM)

Enhanced cooperation: procedure

- Procedure as in article 329(1) TFEU: proposed by the Commission, approved by QMV in
Council, EP consent
- For CFSP, article 329(2) TFEU: HR (opinion), Commission (opinion), EP (knowledge),
Council (unanimity)

Enhanced cooperation: limits

- EU exclusive competences are excluded from enhanced cooperation
- Enhanced cooperation shall not jeopardize the single market, competition, and territorial
cohesion of the EU
- Not part of the acquis  relevant for accession of other States
- Court of Justice: “only those situations in which it is impossible to adopt such legislation in the
foreseeable future may give rise to the adoption of a decision authorizing enhanced
cooperation” (C-274-5/11, Spain and Italy v. Council)

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Two special regimes

- Two forms of particularly important à la carte integration: Schengen and the Eurozone
- Formally, not enhanced cooperation

Schengen
- Born as a limited treaty of international law in 1985  incorporated into EU law via Protocol
19
- Freedom of movement of people  no border controls via land, sea, and air and common visa
policy (but temporary derogations are possible)
- Bulgaria and Romania still not fully integrated: members since 31 March 2024, but land
controls are still provisionally in place. Ireland and Cyprus are still out. Unique regime for
Denmark.
- Non-EU countries are part of the agreement too (Switzerland, Norway, Iceland, Liechtenstein).
Micro-nations have open borders with Schengen members (Andorra, Monaco, San Marino, and
the Vatican City)

The Eurozone
- Monetary union  Bulgaria, the Czech Republic, Denmark, Hungary, Poland, Romania, and
Sweden are out, but only Denmark (and UK) has an opt out. Some non-EU States use the euro
as their currency (e.g., Kosovo)
- Convergence criteria: price stability, sustainable financial position, two years of EU Monetary
System, cap for long term interests of public bonds
- Eurogroup  informal reunions of the Ministers of Finances of the Eurozone MSs.
Recognized in the Protocol 14 and has a President. Does not have legal powers, but very
influential politically
- Accession to the EU
- The applicant State must respect the criteria set by the European Council (so-called Copenhagen
criteria):
o economic criteria (market economy, ability to join the competitive single market),
o legal criteria (ability to incorporate the acquis)
o political criteria (values of article 2 TEU)
- Article 49 TEU: unanimous decision in the Council, after consulting the Commission and with
consent of EU Parliament (majority of its components)  candidate status
- Current candidates: Albania, Bosnia-Herzegovina, Georgia, Moldova, Montenegro, North
Macedonia, Serbia, Turkey, Ukraine
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- Frequent association agreements

- Negotiations: 35 chapters to be covered (mostly institutional and economic issues)
- Accession Agreement: unanimous Council decision and internal ratification of all MS (article
49 TEU)  value of primary EU law, Act of Accession attached to the Treaties
- Progressive “integration” can be established in the Accession Agreement

Withdrawal from the EU

- British and Commission proposals at the Convention of 2002  compromise solution 
currently codified in the Lisbon Treaty
- Article 50 TEU:
o The Member State must notify the Council based on its internal constitutional rules
o 2 years to reach a withdrawal agreement on the exit  approved by the Council (special
QMV) with consent of EU Parliament
o The term to negotiate can be extended by the European Council by unanimity
- Duty to negotiate an agreement  withdrawal agreement as an ordinary international treaty
between the EU and the withdrawing State
- European Council issues guidelines, Council choses the negotiator
- Once out, the former MS can possibly reapply via article 49 TEU
- Only one case so far: UK (June 2016-January 2020). Withdrawal Agreement: citizens’ rights,
transition provisions, financial provisions, institutional provisions, Protocol on
Ireland/Northern Ireland, Protocol on Sovereign Base in Cyprus, Protocol on Gibraltar

The other projects of European integrations

- European Free Trade Association (EFTA)  comprises Iceland, Liechtenstein, Norway,
Switzerland and promotes a free trade area
- European Economic Area (EEA)  comprises Iceland, Liechtenstein, and Norway and
coordinates EFTA and EU, may incorporate part of EU law (functional to economic
cooperation)
- Council of Europe  international organization to uphold the rule of law and human rights in
Europe (has an Assembly, a Committee of Ministers, a Convention, and a Court)
- European Political Community  intergovernmental forum of political cooperation

Actors: the European Council and the European Parliament

Actors: institutions and others
- Several “actors” play a role in shaping EU law, both supranational and national
- Divide between “institutions” and other actors

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- Article 13 TEU  list of institutions: European Parliament, European Council, the Council, the
European Commission, the Court of Justice, the European Central Bank, the Court of Auditors
- Other actors are generally known as “bodies” and they are of various kinds  other Treaty bodies
and bodies set out in secondary law (agencies)

Principles
- Article 13(2) TEU  Institutional balance: Like a "separation of powers" in the EU, ensuring no
single institution dominates.
o Conferral  Each institution can only act within the limits of powers assigned by the
treaties. It cannot invent new powers or transfer its responsibilities to others.
o Sincere cooperation  Institutions and Member States must work collaboratively. They
cannot undermine each other's work:
 Horizontal cooperation: Among EU institutions (e.g., Parliament and Council).
 Vertical cooperation: Between the EU and Member States (Article 4.3 TEU).
o Procedures  All institutions must follow the rules and laws laid down in the treaties,
ensuring decisions are lawful and fair

The European Parliament

- It’s the EU's only directly elected body, representing the citizens.
- Key for democracy in the EU system, as its members (MEPs) are chosen by universal suffrage.
- Elections:
o Held every 5 years.
o Citizens vote in their state of residence, not necessarily their state of citizenship.
o Rules are partly standardized but allow Member States flexibility in organizing elections:
 Proportional representation: Ensures seats reflect the percentage of votes parties
receive.
 Threshold: Member States can set a maximum limit of 5% to prevent fragmentation.
 No transnational lists yet: National parties run for elections, but they group into
European political families (e.g., Socialists, Conservatives).

Composition
- Principle of degressive proportionality  Countries with larger populations have more seats, but
smaller countries are overrepresented to balance influence.
o Malta (smallest state) has 83,000 people per MEP, while Germany (largest state) has 875,000
per MEP.
- Seat allocation is decided unanimously by the European Council upon proposal of the Parliament
and with its approval
- Upper limit of EU seats in the Treaties is 750 + President

Seats

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- Official seat is in Strasbourg (plenaries, left), but most of the work is done in Brussels (committees,
right). The General Secretariat is in Luxemburg

EP Members
- No binding mandate  MEPs are independent and free to vote as they choose, even against party
instructions.
- EP members cannot be national MPs, members of other EU institutions or bodies, and in general
cannot hold competing offices  independence: MEPs can’t simultaneously hold certain other
offices
- Immune from prosecution and detention for the acts performed and opinion/votes expressed as
MPs. Immunity can be withdrawn by the EP and in any case does not apply if found while
committing a crime
- Accountability for financial interests and meeting with lobbyists  check by the European Anti-
Fraud Office and the EP itself on the use of public money by MPs

Political groups
- MPs are elected in national parties, but these are then merged in European political groups
- Criteria:
o A group needs 25 MEPs from at least 7 Member States.
o MEPs without a group are called non-attached members.
o Political groups influence parliamentary agendas and votes.
The President
- EU Parliament President is elected at the first plenary session  secret ballot and absolute
majority is required for the first three ballots, then run-off between the most voted candidates
- 2.5 years mandate, renewable
- President represents the Parliament externally, especially at the European Council
- The Presidents chairs plenary sessions, declares the adoption of the budget, and directs the
Parliament’s work
- 14 Vice-presidents to support her  representing political, gender, and geographical differences in
the Union

Committees
- Specialized groups focus on specific topics (e.g., foreign affairs, budget).
o Standing committees: permanent ones like LIBE (civil liberties).
o Special committees: temporary groups for specific issues
o Committees prepare reports and appoint rapporteurs (leaders for specific issues)

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Voting arrangements
- Most votes require a simple majority of votes cast (not counting abstentions).
- Quorum: At least 1/3 of MEPs must be present
- Exceptions: Certain votes (e.g., censure motions) require higher thresholds

Functions and powers

- Article 14 TEU:
o The European Parliament shall, jointly with the Council, exercise legislative and budgetary
functions  co-decision (in principle) + approval of expenditure
o It shall exercise functions of political control and consultation as laid down in the Treaties.
o It shall elect the President of the Commission
- Inspective function too  investigating maladministration. See article 226 TFEU (investigation
committee)

Watchdog of the Commission

- Oversight on the Commission  vote on the Presidency, confirmation hearings
- Motion of censure with high threshold  2/3 of the votes cast. Censure is collective, not
individual
o Forces the Commission to resign  mere threat was enough to force resignation of the
Santer Commission in 1999
- Commission reports on the budget approved yearly and on its general activity. State of the Union
speech once a year.
- Other figures too report to the Parliament (e.g., President of the European Council, President of
the ECB). Power to question them (230 TFEU)

The European Council

- Periodical reunions of the Heads of State or government of the MS since the Seventies
- The Treaty of Lisbon officially recognized this as an institution  article 15 TEU
- Body of political direction  impetus for policy development and priority setting
- No legislative function

Composition
- Heads of State and government of the Member States (up to national constitutional law)
- President of the European Council  elected by qualified majority for 2.5 years, renewable
(traditionally, a former head of State or government)
- President of the Commission (member)
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- High Representative of the Union for Foreign Affairs and Security Policy (takes part to the work)
- The President of the Parliament may be invited when needed
- Only Heads of State and government have voting right

The President
- Conveys the EuCo  chairs sessions and tries to mediate disputes
- Meetings every 6 months minimum, but can be conveyed whenever necessary for political reasons
(often, monthly or bimonthly summits)
- Coordinates with the Commission and the Council  EuCo uses the administrative and physical
facilities of the Council
- The President reports to the EU Parliament after each meeting
- The President has the external representation of the EU, together with the High Representative
(and at times the President of the Commission)

Decision-making
- Usually, decisions are taken by unanimity (consensus)  international rather than federal
institution
- The Treaties may explicitly state differently (qualified majority, simple majority)
- When deciding by QMV, Council rules apply
- Abstention does not preclude adoption
- The European Council occasionally adopts formal “decisions” (e.g., composition of the EU
Parliament), but often merely issues informal “conclusions”  conclusions can be extremely
detailed and then followed by the Commission or EU legislator very closely
- Decisions are reviewable, conclusions are not (but their “implementing acts” are)

Appointments
- Proposal of the Commission’s President to the Parliament
- Appoints the High Representative for CFSP
- Approval of the final list of Commissioners
- Council’s rotating presidency
- ECB President

Other functions
- Composition of EU Parliament and configurations of the Council
- QMV decisions on vital interests of the States like CFSP or criminal matters may be referred to the
European Council (emergency break) or mediation in cases of unanimous decision missing in the
Council (9 MS must request)
- Passerelle clauses  decision-making from unanimity to QMV or from special to ordinary
legislative procedure
- Impetus on Treaty reform ex article 48 TEU
- Decisive role on article 7 TEU
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EU Actors: The Council, the Commission, the High Representative

The Council
- The Council of the EU or Council of Ministers is composed of representatives of the MS’s
executives  ministerial level
- Key actor in the legislative process together with the Parliament
- Indirect democratic legitimacy  accountable to the national parliaments
- Executive powers in specific areas
- Adopts binding legal acts
- See article 16 TEU

The “federal chamber”

- Council of the EU as the “federal chamber” within the Union legislature  institution in which
the national ministers represent their Member State
- Examples from comparative law:
o US Senate: equal representation of States, (almost) same powers as the House of
Representatives, senate model
o German Bundesrat: weighted representation, unequal powers, council model
- The Council of the EU is close to the German model

Composition
- Composition: a representative of each MS at ministerial level (Commission is invited to take part
in the meetings)
- Up to the MS to decide who is sent  complex in federal States
- Single institution with different “configurations”: any act is taken on behalf of the Council as a
single institution
- Two configurations expressly defined in the Treaties:
o General Affairs Council – ensuring consistency and continuity in the work of the different
Council configurations
o Foreign Affairs Council – elaborating the EU’s external action, on the basis of the strategic
guidelines of the European Council, and ensuring its consistency

Configurations (source Schuetze, 2021)

Colar imagem

Rotating Presidency

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- Rotating basis: The presidency of the Council of the European Union rotates every six months,
following a pre-agreed schedule. This rotation is decided by the European Council and further
implemented through a Council decision.
- Pre-established groups of three Member States (trios):
o To ensure continuity, countries work in groups of three, called trios, for an 18-month
period.
o These trios create a common program for their combined term, respecting:
 The equality of Member States.
 Their cultural and political diversity.
 Geographical balance within the EU.
- Functions of the Presidency:
o Drafting Council programs: Each presidency contributes to preparing an agenda for
Council activities.
o Managing discussions: It ensures that meetings and negotiations among EU Member States
are well-organized and productive.
o External representation: The presidency represents the Council in external affairs and
diplomatic interactions (except for foreign policy, which is led by the High Representative
for Foreign Affairs).
- Exception: The Foreign Affairs Council is not chaired by the rotating presidency but instead by
the High Representative of the Union for Foreign Affairs and Security Policy. This ensures
consistency in EU foreign policy.
- Current Trio: The trio currently includes Spain, Belgium, and Hungary.
o Hungary's presidency: 1 July – 31 December 2024.
o Next presidency: Poland will assume the rotating presidency on 1 January 2025.
- The rotating presidency ensures that all Member States have an equal chance to shape the EU’s
agenda and policies.
- By working in trios, the EU maintains stability and long-term planning, even as leadership changes
every six months.

Meetings
- The Presidency will prepare the agenda for each meeting of the Council  must be approved before
each meeting
o Legislative deliberations  A-items (approval without discussion)/B-items (approval with
discussion)
o Non-legislative deliberations  A-items (approval without discussion)/B-items (approval
with discussion)
- Vote called by the President  diplomatic culture (hidden disagreements)
o deliberation and votes on legislative acts: duty to meet in public and to publish results of
votes
o deliberation and votes on non-legislative activities: in principle not public

Coreper
- Meetings must be prepared:

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o The Committee of Permanent Representatives (Coreper, Article 240 TFEU) prepares the
work of the Council of the European Union.
o It is made up of diplomatic personnel from the Member States (MSs) who work at the
Permanent Representations of their countries in Brussels.
o Coreper ensures decisions are well-prepared before reaching the Council for final approval,
making its role both procedural and political as it seeks to resolve disagreements among
Member States.
- Coreper II:
o Handles sensitive and strategic files, including areas like foreign policy, economic matters,
and justice.
o Meetings involve Permanent Representatives, who are senior diplomats and serve as the
primary links between the EU institutions and their national governments.
o This level of Coreper addresses issues with significant political or economic implications.
- Coreper I:
o Deals with less sensitive or technical files, such as agriculture, fisheries, or environmental
policies.
o Meetings are attended by deputy Permanent Representatives, who focus on more
specialized or technical matters.
o This division allows Coreper to handle the large volume and complexity of EU legislative
and policy files efficiently.
- If Coreper reaches an agreement:
o Files agreed upon by Coreper are labeled as “A items”, meaning they can be approved by
the Council without further discussion.
o “B items” are files on which no consensus has been reached, requiring discussion at the
ministerial level within the Council.
o This distinction streamlines Council meetings by focusing only on unresolved or critical
issues.
Procedure
- Preparation of the Council’s meetings:
o Working parties/committees:
 These groups handle the technical and day-to-day work for the Council.
 Made up of civil servants from national ministries, they are sometimes referred to
as the “parliamentary” committees of the Council.
 Their role is to analyze proposals, draft recommendations, and resolve technical
issues before they reach higher levels of discussion.
o Coreper II:
 Prepares meetings related to General Affairs, Foreign Affairs, Economic and
Financial Affairs (EcoFin), and Justice and Home Affairs (JHA).
 Handles more politically sensitive Council configurations.
o Coreper I:
 Prepares meetings for other Council configurations, including topics like
agriculture, environment, education, and social policy.
 Focuses on technical and sector-specific matters.
o Council’s meetings:
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 Once prepared by working parties and Coreper, the Council’s meetings bring together
the relevant ministers from Member States to make final decisions, often relying on
the groundwork already done to streamline the process.
 Ministers in the Council focus on resolving B items (unresolved issues) and formally
approving A items (agreed upon beforehand).

Decision-making
- Three voting systems:
o Qualified Majority Voting (QMV)
 Most common system for decision-making in the Council of the EU.
 Requires:
 At least 55% of Member States (MS) (15 out of 27).
 Those states must represent at least 65% of the EU’s total population.
 This ensures both a broad geographical agreement and representation of the majority
of the EU population.
o Simple majority
 Requires a majority of 14 Member States to pass a decision.
 Used for procedural matters.
o Unanimity
 All Member States must agree.
 Used for highly sensitive issues, such as EU membership, foreign policy, or taxation.
o Quorum:
 All Member States must agree.
 Used for highly sensitive issues, such as EU membership, foreign policy, or taxation.

Qualified majority: special rules

- Blocking minority  at least 4 States are necessary to block a decision
- Ioannina compromise  the Council will keep deliberating if ¼ of the States, representing 1/5 of
the EU’s population opposes a decision (self-restrain, not in the Treaty)
- “Emergency break”: limited version of the Luxemburg compromise  treaty clauses allowing each
State to ask that the question is referred to the European Council in vital areas of national interest
 EuCo by unanimity

Exempli gratia: article 82 TFEU

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The European Parliament and the Council, acting in accordance with the ordinary legislative
procedure, shall adopt measures to:
(a) lay down rules and procedures for ensuring recognition throughout the Union of all forms of
judgments and judicial decisions;
(b) prevent and settle conflicts of jurisdiction between Member States;
(c) support the training of the judiciary and judicial staff;
(d) facilitate cooperation between judicial or equivalent authorities of the Member States in relation to
proceedings in criminal matters and the enforcement of decisions
3. Where a member of the Council considers that a draft directive as referred to in paragraph 2 would
affect fundamental aspects of its criminal justice system, it may request that the draft directive be
referred to the European Council. In that case, the ordinary legislative procedure shall be suspended.
After discussion, and in case of a consensus, the European Council shall, within four months of this
suspension, refer the draft back to the Council, which shall terminate the suspension of the ordinary
legislative procedure
- Establishes EU-wide rules to enhance judicial cooperation in criminal matters, including
recognizing judicial decisions, resolving jurisdiction conflicts, training judicial staff, and fostering
cross-border collaboration, while allowing Member States to pause legislation that might affect
fundamental aspects of their criminal justice systems for further discussion at the European
Council.

Simple majority and Unanimity

- Simple majority (14 MS out of 27) – used for procedural matters (e.g. adoption of the Rules of
Procedure)
- Unanimity – applied in a reduced number of sensitive policy areas (e.g. foreign policy, taxation,
energy), fundamental decisions under the Treaties (e.g. opening accession negotiations)

Functions and Powers

- Legislative powers:
o Acts as a co-legislator with the European Parliament in the ordinary legislative procedure (the
most common way laws are passed in the EU).
o Serves as the main legislator in certain special legislative procedures where the Council has a
leading role.
- Main decision-maker in international agreements:
o The Council plays a key role in negotiating and concluding international agreements on
behalf of the EU, ensuring alignment with EU policies and interests.
- Budget approval:
o Shares responsibility with the European Parliament to approve the EU budget, ensuring that
funding aligns with EU priorities and policies.
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- Appointments to other institutions:

o Works in common accord with the President-elect of the European Commission to propose a
list of candidates for the Commission.
o Influences appointments to other key EU institutions, ensuring they reflect the Council’s
consensus.
- Impact on the fundamental structure of the EU:
o Authorizes enhanced cooperation among Member States when unanimous agreement isn’t
possible, allowing a subset of countries to move forward with closer integration in specific areas.
o Plays a central role in shaping the institutional and procedural framework of the EU.

Seat
- Seat and Places of Work
o The official seat of the Council of the European Union is in Brussels, where most meetings
are held.
o The Council also meets in Luxembourg during the months of April, June, and October, as
part of its arrangements to accommodate different locations.

The European Commission

- The European Commission pursues the “general interest” of the EU, making it an independent
body that represents the overall goal of the Union, not individual Member States.
- Article 17 TEU
o Article 17 of the Treaty on European Union (TEU) outlines the role and powers of the
Commission, including its responsibilities in governance and policy development.
- Several functions:
o Legislative initiative  The Commission is the motor of EU integration and plays a key
role in policy-setting by proposing new legislation to the Council and Parliament.
o The “executive power” of the Union  The Commission holds the executive power,
implementing laws and policies by issuing delegated or implementing acts. It also executes
the EU budget, managing how the EU’s financial resources are spent.
o Guardian of the Treaties  The Commission ensures that EU laws and treaties are upheld
across Member States. It can take infringement actions against Member States that fail to
comply with EU law, and it has recommendative, investigative, and sanctioning powers in
specific areas.
o External representation  The Commission is delegated by the Council to represent the
EU externally, particularly in negotiations with non-EU countries or international
organizations.

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Composition
- Members of the Commission are chosen for their personal competence and independence,
ensuring they do not have any conflicting roles:
o Public independence: Commissioners must act independently of their Member States
(MSs) and not represent national interests.
o Private independence: Commissioners must relinquish any positions in the private
sector to avoid conflicts of interest.
- The Commission currently consists of 27 Commissioners, one from each MS, including the
President and the High Representative (HR) for Foreign Affairs and Security Policy.
- Although the Treaties envisaged reducing the number of Commissioners to two-thirds of
Member States (18 members) by 2014, this reduction has not occurred due to a European
Council Decision in 2013 maintaining one Commissioner per MS.
- Commissioners serve a 5-year term, aligned with the European Parliament’s legislature.
Appointment of the President
- The President of the European Commission is proposed by the European Council, which uses
Qualified Majority Voting (QMV) and takes into account the results of the European
Parliament elections.
- During the electoral campaign, European political parties nominate a candidate for President
(known as the Spitzenkandidat system), but the European Council is not legally bound to
select the leading candidate.
- The President-elect (President in pectore) must gain the approval of the European Parliament,
requiring a majority of its members in a secret ballot.
- If the candidate is rejected, the European Council has one month to propose another candidate.
Appointment of the Commission
- The newly elected President of the Commission negotiates with Member States to determine
the names and portfolios of the incoming Commissioners.
- The Council of the EU formally adopts the list of proposed Commissioners, including their
assigned portfolios.
- The European Parliament (EP) holds individual hearings for each proposed Commissioner to
assess their suitability for the role.
- After the hearings, the EP votes on the entire Commission in a confidence vote; approval is
required for the Commission to take office.
- The European Council (EuCo) formally appoints the Commission using Qualified Majority
Voting (QMV).
Life of the Commission
- The President of the Commission has significant internal control and can:
o Force the resignation of a Commissioner (though this is very rare).

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o Appoint Vice-Presidents and high-level officers, and reshuffle portfolios when

necessary.
- The Court of Justice can enforce the retirement of Commissioners for violating their duty of
independence or engaging in serious misconduct.
- The European Parliament can pass a motion of censure with a two-thirds majority of votes
cast (representing the majority of EP members), which would force the entire Commission to
resign.
- A Commission that takes office after censure serves only until the end of the EP’s legislative
term.
Decision-making
- The President convenes the College of Commissioners, typically once a week, and sets the
meeting agenda.
- Decisions are usually made by consensus, but if necessary, a vote can be called, requiring a
majority of at least 14 Commissioners for approval.
- Meetings are not public, ensuring private deliberations.
- While discussions are typically oral, written drafts of proposals or decisions may also be
circulated to streamline the process
Organization
- The Commission is structured into Directorates-General (DGs), which function like ministries
focused on specific policy areas (e.g., trade, environment, competition).
- Each DG is further divided into units for specialized tasks.
- Every DG is assigned to a Commissioner, who oversees its operations and policy
implementation.
- Civil servants within the DGs support the Commissioners in their work, while each
Commissioner also has a personally appointed cabinet to provide direct advice and assistance.
- The President of the Commission has extensive authority in determining the organization and
responsibilities of the DGs.
- A General Secretariat assists the President in coordinating the Commission’s activities and
ensuring smooth operations.
- A Legal Service supports the entire Commission, providing legal advice and ensuring
compliance with EU law.
The High Representative of the Union for Foreign Affairs and Security Policy
- The High Representative ensures the coherence of the EU’s external actions, covering both
external competences (e.g., trade agreements, global partnerships) and the Common Foreign
and Security Policy (CFSP).
- This role is enshrined in Article 18 TEU of the Treaty on European Union.

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- The High Representative acts as the EU’s "head of diplomacy", representing the Union on the
global stage and in relations with third countries and international organizations.

One person, two hats

- The High Representative serves a dual role:
o Council role: Presides over the Foreign Affairs Council and participates in the work of
the European Council (EuCo) as a member of the Council.
o Commission role: Acts as a Vice-President of the Commission, aligning external
relations and foreign policy across EU institutions.
- Appointed by the EuCo using Qualified Majority Voting (QMV) and must receive a vote of
confidence as part of the Commission by the European Parliament (EP).
- Can be removed by the EuCo or censured by the EP along with the entire Commission.
- If the President of the Commission requests the resignation of the High Representative, it must
be agreed upon by the EuCo.
European External Action Service
- The EEAS is a bureaucratic structure that supports the High Representative in performing her
duties.
- Operates similarly to a Directorate-General (DG) but focuses specifically on external action.
- Provides assistance not only to the High Representative but also to the President of the EuCo
and the Commission in matters of external relations.
- Staffed by officials from the Council’s General Secretariat and the Commission, as well as
personnel seconded from national Foreign Affairs Ministries of the Member States, ensuring
diverse expertise and cooperation.

Actors: The Court of Justice, Court of Auditors, the ECB, Advisory Bodies
and Agencies
The Court of Justice
- Operates as part of a dual judiciary, functioning independently from national courts to form a
unique EU system of courts.
- Governed by Article 19 TEU and Articles 251–281 TFEU, which outline its role and structure.
- Ensures the uniform interpretation and application of EU law, resolves disputes between EU
institutions and Member States (MS), and addresses legal challenges involving EU law.

The Two Courts

- Court of of Justice of the European Union (CJEU) consists of two distinct courts:
- Court of Justice: Handles constitutional and precedent-setting cases, deciding on about 1,000
cases annually, which often have significant legal implications.
- General Court: Deals with more routine and specialized matters, addressing approximately
1,500 cases annually.

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Composition – Court of Justice

- Judges are selected based on their status as legal experts eligible for the highest judicial
positions in their respective countries or individuals with recognized legal standing.
- Each Member State provides one judge (27 total), ensuring equal representation across the EU.
- Judges must be independent, free from other professional or political appointments.
- Appointed by the common accord of the governments of Member States for a 6-year
renewable term, after consulting Panel 255.
o Panel 255 consists of seven members, including former members of the Court of Justice,
members of national supreme courts, and lawyers of recognized competence. One
member is proposed by the European Parliament, and appointments are finalized by a
Council decision.
- The President and Vice-President of the Court are elected by the other judges for a 3-year
term.
The Advocate Generals
- Expert lawyers appointed to assist the Court of Justice in interpreting complex legal matters.
- Selected based on the same criteria as judges of the Court (high qualifications and
independence).
- Initially limited to 8 AGs by treaty, but the number can be increased upon request by the Court;
currently, there are 11 AGs:
o Permanent AGs for Germany, France, Italy, Spain, and Poland.
o The remaining AG positions rotate among the other Member States.
- AGs issue “Opinions” on intricate cases to provide legal guidance, though they are not
involved in every case.
- A First Advocate General oversees the AGs and assigns cases among them.

Stylistic Differences
- The Court of Justice and the Advocate Generals adopt contrasting styles in their legal reasoning
and documentation:
o Court of Justice:
• Judgments, orders, and opinions are relatively concise and formal.
• Employs deductive and magisterial reasoning, presenting conclusions without
overt discussion of external legal sources.
• Refers extensively to prior case law, but avoids references to academic scholarship
or non-legal sources.
• Written in the third person, portraying the Court as a collective, authoritative
body.
o Advocate Generals:
• Opinions are lengthier and often dialogical in tone, aiming to persuade and
thoroughly analyze the issues at hand.
• The AG speaks in the first person, providing a personal perspective on the legal
matter.
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• Incorporates references to scholarship, external sources, and comparative law to

support their arguments.

Examples
- Court of Justice (para. 80): It is moreover open to individuals who may have been harmed by
the infringement of their right to an effective remedy as a result of a decision of a court
adjudicating at last instance to hold that Member State liable, provided that the conditions
relating to the sufficiently serious nature of the breach and to the existence of a direct causal
link between that breach and the loss or damage sustained by the injured party are satisfied (see,
to that effect, in particular, judgments of 30 September 2003, Köbler, C-224/01, EU:C:2003:513,
paragraph 59; of 24 October 2018, XC and Others, C-234/17, EU:C:2018:853, paragraph 58; and
of 4 March 2020, Telecom Italia, C-34/19, EU:C:2020:148, paragraphs 67 to 69).
- AG Hogan, para. 82: “All of this calls to mind the case of the Sherlock Holmes story regarding
the dog which did not bark […] Yet Francovich is, so to speak, a dog which must be allowed to
bark for it is that very barking which should serve to warn us that the rights which EU law
intended to vouchsafe and protect are being compromised – sometimes silently – by national
judicial error”.
- They use extrajudicial shit!!

Composition: The General Court

- Judges meet similar qualifications as those of the Court of Justice, ensuring high legal expertise
and independence.
- Governed by Article 254 TFEU, stating that provisions related to the Court of Justice also
apply to the General Court unless specified otherwise.
- Currently consists of two judges per Member State (total 54 judges).
- There are no Advocate Generals (AGs) in principle, but in exceptional cases, a judge not
involved in the matter may act as an AG.

The shadow court: the réferéndaires

- Both judges and AGs are supported by a cabinet of assistants, referred to as référendaires.
- Référendaires often remain in office longer than judges, accumulating significant institutional
knowledge and expertise.
- Their linguistic and legal skills or long tenure can provide substantial influence on a judge's
decisions, especially in complex cases.

Chambers
- Both the Court of Justice and the General Court primarily operate in panels of 3-5 judges,
depending on the complexity of the case.
- One-judge panels handle simpler cases, while the Grand Chamber handles more significant or
sensitive matters.

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- The Full Court (all 27 judges) convenes on rare occasions for ceremonial purposes or to address
critical matters, such as the dismissal of high-ranking officials (e.g., Commissioners).
Procedure
- Each court has a Registrar tasked with receiving and transmitting documents and managing
case-related administration.
- The process is typically written, with hearings conducted in Luxembourg.
- The Court primarily operates in French, but its decisions are translated and available in all 24
official EU languages.
- Member States and EU institutions can intervene in cases, with Member States and the
Commission frequently doing so.
- The President of the Court appoints a judge rapporteur to manage the case and may fast-track
proceedings when necessary.
- Decisions are delivered through judgments or reasoned orders, with interim measures issued by
order when urgent action is required.

Rulings

- The judge rapporteur drafts the initial decision, which is subsequently revised based on the
feedback and suggestions of the other judges involved.
- The Court does not allow dissenting or concurring opinions—all decisions are presented as the
voice of “the Court.”
- Example Case:
o Case C-497/20, Randstad Italia SpA v. Umana SpA and others, Judgment of the Court
(Grand Chamber), 21 December 2021, EU:C:2021:1037.

- Acronyms commonly used:

o P: Procedure initiated directly by the parties.
o R: Request for a preliminary ruling by a national court.
o PPU: Urgent preliminary ruling procedure.
- Joined cases are possible when multiple cases are related and need to be decided together.

Jurisdiction

- Court of Justice exercises both original and appellate jurisdiction:

o Original Jurisdiction:
 Ensures the interpretation and validity of EU law (limited to specific areas
from 2024 onward).
 Handles actions for infringement of EU law by Member States.
 Issues opinions on international treaties involving the EU.
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 Resolves disputes between EU institutions.

o Appellate Jurisdiction:
o Reviews the legality of EU acts (often administrative in nature).
o May either quash and refer cases back to lower courts or review decisions directly,
acting as both a cassation court and an appellate court.
o CFSP Jurisdiction:
 Limited to specific areas of the Common Foreign and Security Policy.
- The General Court primarily holds original jurisdiction in areas not reserved for the Court
of Justice:
o For example, cases concerning State aid or competition law.
o As of 2024, the General Court also has jurisdiction over preliminary references.
o Additionally, it has appellate jurisdiction over cases from lower courts (though there
are none currently).

The European Central Bank

- Responsible for monetary policy in the Eurozone.

- Operates within the European System of Central Banks (ESCB), which includes the ECB and
the central banks of all EU Member States.

- Eurosystem refers specifically to the ECB and the central banks of the Eurozone Member
States.
- Mandate:
o Primary: Maintain price stability in the Eurozone.
o Secondary: Support the general economic policies of the EU.
- The ECB has taken a creative approach to its mandate during economic crises, with the Court
of Justice of the EU (CJEU) showing deference to its actions.
Governance

- The ESCB is governed by the ECB’s main governing bodies:

o Governing Council: President, Vice-President and governors of the central banks of the
system  decides on monetary policy (simple majority, but at times weighted vote)
o Executive Body: President, Vice-President, and other four members chosen by EuCo
among figures with adequate experience and independence (QMV).  Decides how to
implement the GC’s decisions. Appointed for 9 years

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Accountability

- The President of the ECB may be invited to address the European Parliament (EP) and
participates in meetings of specialized committees.
- The ECB submits regular reports to the EP, the Council, the Commission, and the EuCo to
ensure transparency.
- Acts of the ECB are subject to judicial review before the Court of Justice of the European
Union (CJEU).
Functions

- Oversees the monetary policy of the Eurozone, implemented through national central banks.
- Ensures the issuance of the euro as legal tender.
- Manages the foreign currency reserves of Member States (MSs).
- Issues binding regulations, decisions, and non-binding recommendations and opinions.
- Supervises credit institutions to ensure financial stability, focusing on major banks while
leaving lesser institutions to national central banks.
- Has the power to impose specific decisions and financial penalties for non-compliance.
Court of Auditors

- Provides an external audit on EU finances but is not a judicial body.

- Members are appointed by the Council after consulting the EP, with a term of six years,
renewable.
- Composed of independent experts from MSs with backgrounds in external auditing.
Functions
- Verifies the legality and soundness of EU budget usage.
- Accesses documents and premises of EU bodies, national institutions, and private recipients of
EU funds, often in collaboration with national audit authorities.
- Issues an Annual Report on the EU budget, critical for the EP and Council to approve the
Commission’s implementation (Statement of Assurance).
- Prepares special reports on the efficiency of EU spending in specific sectors.
- Reports irregularities to the European Anti-Fraud Office (OLAF), which investigates
administratively and can recommend sanctions.
- Reports criminal conduct to the European Public Prosecutor’s Office (EPPO), which prosecutes
fraud affecting EU finances in national criminal courts.

OLAF and EPPO

- In case of irregularities, the Court of Auditors will report to the European Anti-Fraud Office
(OLAF)
- OLAF will initiate investigations (administrative procedure)  possible recommendation of
disciplinary or administrative sanctions to the EU or national responsible authorities

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- Criminal conducts can be reported to the European Public Prosecutor’s Office (EPPO) 
enhanced cooperation to bring fraudulent conduct damaging the EU’s financial interests in front
of national criminal courts

Advisory Bodies

- Provide opinions to the EU legislator (Parliament, Council, Commission), often during

mandatory consultations.
- Rarely issue autonomous opinions.
- Economic and Social Committee: Represents economic sectors, including employers and
employees (up to 350 members).
- Committee of the Regions: Represents subnational governments (e.g., regions, cities).

Agencies

- Established by secondary EU law, not the Treaties.

- Assist the Commission in implementing EU law as part of the EU’s “administrative state.”
o Direct implementation: Issue binding decisions and sanctions (e.g., European Aviation
Safety Agency).
o Research and study: Provide technical reports for the Commission (e.g., Fundamental
Rights Agency).
o Coordination: Facilitate national administrative tasks (e.g., Frontex).
o Draft legislation: Offer technical expertise and recommendations (e.g., European
Medicines Agency).

Agencies: Governance

- Executive agencies: directly under the Commission’s control, limited timespan  Steering
Committee and a Director both appointed by the Commission. The latter has a power of
review/suspension of acts
- Independent Agencies: independent from the Commission  Management Board with
representatives of the MS and of the Commission. Executive Director to represent the agency

Example: Frontex

- Supports EU and Schengen states in managing borders, especially under Regulation (EU)
2019/1896.
o Risk analysis: Evaluates migration patterns and shares data with MSs and the
Commission. Coordinates research on migration issues and technologies.
o Joint operations: Coordinates joint actions by national forces for border surveillance.
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o Special cases: Deploys Border Guard Teams during crises or increased migration
pressure.
o Returns: Develops standards for joint return operations to address migration
challenges.

Footnote: National Parliaments

- National Parliaments are recalled at article 12 TEU (before the EU institutions) 

involvement in the EU law-making process in several ways:
o Draft legislative acts sent to the European Parliament and to the Council shall be
forwarded to national Parliaments (Protocol 1)
o Can veto the adoption of EU legislation on some areas such as family law (article 81.3
TFEU)
o Protocol 2 (see competences)

EU Competences: types and principles

Conferral Principle

- State actions are in principle justified→ the State as an institution with plenary powers.
- EU law as a derivate law → need for justification
- Principle of conferral → article 5(2) TEU: “the Union shall act only within the limits of the
competences conferred upon it by the MS in the Treaties to attain objectives set out therein.
Competences not conferred upon the Union in the Treaties remain with the Member States”
- Competences are conferred in various sections of the Treaty → Policy by policy approach
- The conferral principle is a fundamental concept that governs the division of competences
between the EU and its Member States. It ensures that the EU only acts within the limits of
powers explicitly conferred upon it by the Member States through treaties.

A federal principle

- The principle of the conferral mirrors the formal structure of competences in federalism
- US X amendment: “The powers not delegated to the US by the Constitution (…) are reserved to
the States respectively, or to the people”
Types of EU Competences

- Competence: material field within which an authority is entitled to legislate

- EU competences: exclusive or shared?
- Article 2 TFEU: exclusive, shared, coordinating, complementary competences + CFSP

1. Exclusive Competences
- Article 2(1) TFEU → only the EU can regulate the field, MSs must be empowered by the EU
- Court of justice (in the Seventies):

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o “[a shared competence] would compromise the effective defence of the common interest
of the [Union]” (Opinion 1/75 on common commercial policy)
o “[the Member States] would no longer be entitled to exercise any power of their own in
the matter of conservation measures in the waters under their jurisdiction” (C-804/79,
Commission v. UK)
- Article 3 TFEU: customs union, competition, monetary policy, conservation of marine
biological resources, common commercial policy.

2. Shared Competences
- Article 2(2) TFEU: “The Member States shall exercise their competence to the extent that the
Union has not exercised its competence”
- Model: article 72 of the German Constitution → “on matters within the concurrent legislative
power, the Lander shall have powers to legislate so long as and to the extent that the Federation
has not exercised its legislative power by enacting a law
- Shared but mutually exclusive → either the EU or the MS can act: so called field pre-emption
(national legislation is excluded if the EU has regulated, reemerges if EU law is repealed.
- Shared competences as the ordinary EU competence → article 4 TFEU: “[EU competences will
be shared] where the Treaties confer on the Union a competence which does not relate to the
areas referred to in Articles 3 and 6”
- Shared competences  article 4(2) TFEU (not exhaustive): internal market, social policy,
cohesion, agriculture and fishery, environment, consumer protection, transport, trans-European
networks, energy, AFSJ, common safety in public health
- Shared competences are often of minimum harmonization  the EU adopts minimum
standards, but MSs are free to go “beyond” and adopt more protective measures  shared
competence, yet no pre-emption
- Article 4(3-4)  research, technological development and, space; development cooperation;
humanitarian aid  exercise of competences on these areas “shall not result in Member States
being prevented from exercising theirs”  still a shared competence?

3. Coordinating competences
- Article 2(3) TFEU  the EU can only adopt guidelines or initiatives to ensure coordination,
the field remains in the hands of the MS
- Born out of disagreement in the Convention: some wanted shared competences, others wanted
complementary  “coordinating” competences as a compromise
- Article 5 TFEU  economic policy, social policy, employment policy
4. Complementary Competences
- Doctrinal etiquette for the “actions to support, coordinate or supplement the actions of the
MSs” in article 2(5) TFEU
- Article 6 TFEU: human health; industry; culture; tourism; education; vocational training; youth
and sport; civil protection and administrative cooperation
- EU acts adopted in these fields cannot determine harmonization of national law

External relations/CFSP

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- Article 24 TEU → general competence “in matters of common foreign and security policy”
- Article 37 TEU → general power to conclude agreements in the area of CFSP
- Specific competences → external agreements and legislative acts on trade, development
cooperation, humanitarian aid
- Specific competences → external agreements and legislative acts on trade, development
cooperation, humanitarian aid.
- Article 216 TFEU → residual power to conclude international agreements functional to the
objectives set out in the Treaties

Subsidiarity

- Article 5(3) TEU: The subsidiarity principle is a fundamental concept in EU law, which ensures
that the EU only acts when objectives cannot be achieved at the national or regional level. It
promotes decision-making at the closest level to citizens and only allows the EU to intervene
when necessary.
- Two key elements:
o National Insufficiency: National, regional, or local authorities cannot effectively achieve
a policy objective on their own.
o Comparative Efficiency: The EU is more likely to succeed in achieving the objective due
to the scale and scope of its actions, which may be more effective than national efforts.
- Exception: The subsidiarity principle does not apply to areas of exclusive EU competences,
where the EU has the sole authority to act.
Subsidiarity: political review

- Protocol 2 on Subsidiarity and Proportionality: This protocol outlines a system for monitoring
the subsidiarity principle in draft legislative acts. It provides a mechanism for national
parliaments to review whether the EU is respecting subsidiarity in its proposed actions.
- Requirements: The European Commission must justify why EU action is needed in areas where
Member States might be able to act on their own. This is particularly important for ensuring the
legitimacy of EU intervention.
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- National Parliaments’ Role:

o National parliaments have eight weeks to issue a reasoned opinion on whether a
proposal respects subsidiarity.
o Yellow Card: If one-third of national parliaments disagree with the proposal, the
Commission must review it. The Commission may choose to keep the proposal, but it
must explain its reasoning.
o Orange Card: If half of the national parliaments disagree, the EU legislator (the
Parliament and Council) must reconsider the proposal. This affects only the ordinary
legislative procedure.

Subsidiarity: judicial review

- Judicial Review: National or regional authorities, as well as individuals, may challenge EU acts
on the grounds of subsidiarity before the Court of Justice of the European Union (CJEU).
- Low Bar for Review: The EU legislator is only required to disclose the essential objectives of a
proposed act. There is no need for an extensive justification regarding the subsidiarity of the
action (as seen in C-508/13, Estonia v. Parliament and Council).
- Emphasis on National Insufficiency: The CJEU focuses on whether the national level is unable
to achieve the objective. If national action is deemed insufficient, the EU may intervene.
- Discretion of the EU Legislator: The EU legislator (e.g., European Commission, Council, and
Parliament) has wide discretion in deciding whether EU action is needed. Judicial review is
therefore limited to ensuring that there has been no manifest error, misuse of powers, or
excessive discretion.
o Case Example: In C-84/94, the Court ruled that subsidiarity is a political question—the
EU has considerable flexibility in determining whether action is necessary.

Competence creep

- General principle: the European Union is bound by the principle of conferral, meaning that it
can only act within the competences conferred upon it by the Member States through the
Treaties.
- Qualifications: expansion of EU competences beyond the original limits, often using various
interpretative techniques to justify such actions (competence creep):
o Teleological interpretation
 Teleological interpretation involves interpreting EU law in a way that aligns with
the purpose (or telos) of the competence at hand. This method allows for an
extensive interpretation of the competences conferred by the Treaties, permitting
EU action in areas beyond the explicit wording of the Treaties.
 This is often used to enable the EU to act in ways that align with the broader
objectives of the Union, even when not explicitly foreseen in the Treaties.
 Example 1: Working Time Directive (C-84/94, UK v. Council)
 The Treaty’s competence allowed the EU only to encourage improvements in
workers' health and safety. However, the Court of Justice interpreted this
competence teleologically, permitting the EU to adopt regulations on minimum
rest periods for workers. This was seen as part of the broader aim of improving
working conditions.
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Example 2: Free Movement of Workers (C-9/74, Casagrande v.


Landeshauptstadt München)
 The Court interpreted the right to free movement of workers to include not just
access to education for the children of workers in the host State, but also access
to educational benefits like grants. The teleological approach helped extend the
scope of the competence beyond what was originally anticipated in the Treaties.
o Doctrine of implied powers
 The doctrine of implied powers suggests that the EU can adopt actions that are
necessary and appropriate for the achievement of its explicit competences, even if
they are not expressly stated in the Treaties.
 This doctrine allows the EU to act in areas not directly mentioned in the Treaties
but which are closely linked to achieving its goals.
 Example: If the EU is tasked with implementing a common policy in a particular
sector, the Court may justify the exercise of powers that are necessary to give
effect to that policy, even if those powers are not specifically conferred.
o Horizontal competences: articles 114 TFEU and 352 TFEU
 Article 114 TFEU: This article allows the EU to act to establish or ensure the
functioning of the internal market, including harmonizing legislation across
Member States. It has been used to justify extensive EU action, often by
employing a broad interpretation of what is necessary to achieve the internal
market objectives.
 Article 352 TFEU (the flexibility clause): This article allows the EU to adopt
actions in areas not covered by existing competences if such actions are necessary
to achieve the EU's objectives. It has been used in various contexts to justify
actions that would otherwise exceed the EU's formal competences.

A Comparative Perspective

- In 1816, Congress chartered the Second Bank of the USA

- Maryland taxed the Second Bank, but the cashier refused to pay
- Maryland held that the Bank was unconstitutional for lack of an explicit federal power in the
Constitution
- “[The Congress shall have Power . . .] To make all Laws which shall be necessary and proper for
carrying into Execution the foregoing Powers” (Art. I, Section 8)
- McCulloch v. Maryland (1819): the Necessary and Proper Clause gave Congress implicit
powers to reach its objectives
o The McCulloch v. Maryland case serves as a foundational example of how implied
powers are used in U.S. constitutional law to allow for the effective functioning of the
federal system. Similarly, the European Union uses interpretative mechanisms (such as
teleological interpretation and implied powers) to allow its institutions to expand their
competences and adapt to new challenges, despite the principle of conferral. Both
systems rely on the idea that governance in complex entities (like federal states or
supranational unions) requires a certain level of flexibility and practicality in interpreting
the law.

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Horizontal clauses: article 114 TFEU and article 352 TFEU

Horizontal clauses

- General clauses useful to go beyond the limits of the principle of conferral

o Article 114 TFEU → The Internal Market Competence
o Article 352 TFEU → the Residual Powers Competence

Article 114(1) TFEU

- “Save where otherwise provided in the Treaties, the following provisions shall apply for the
achievement of the objectives set out in Article 26. The European Parliament and the Council
shall, acting in accordance with the ordinary legislative procedure and after consulting the
Economic and Social Committee, adopt the measures for the approximation of the provisions
laid down by law, regulation or administrative action in Member States which have as their
object the establishment and functioning of the internal market”
- Measures for the approximation laws functional to the internal market

Internal market and EU integration

- After the failure of the European Defense Community (1954), economic integration as the
driver of EU integration.
- Legal developments regarding the internal market have produced/clarified concepts which are
central to our more general understanding of EU integration.

Common and regulation

- Optimal Allocation of Resources: The common market is designed to ensure that resources are
used efficiently across the EU. This includes:
o Goods: Allowing goods to move freely to where they are most needed, making it easier
for consumers to access products.
o Workers: Enabling workers to move across Member States to find jobs where they are
most valued, improving employment opportunities.
o Services: Allowing businesses to offer services across borders, promoting competition
and better services.
o Capital: Making it easier for businesses and individuals to invest money across the EU,
which helps finance growth and innovation.
- Role of EU Law: EU law plays a crucial role in ensuring a common set of rules and standards
across Member States. These laws help create a level playing field, making sure that trade, labor,
services, and investment can flow freely without national barriers getting in the way.

The tools of internal market

- To create a true common market, the EU uses two main approaches: negative integration and
positive integration.
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o Negative Integration (Deregulation):

 This approach focuses on removing barriers that prevent free trade across
Member States. If a national rule makes it harder for goods, services, or people to
move across borders, EU law can step in to stop it.
 The idea is to eliminate discriminatory national regulations that give domestic
businesses an advantage over foreign ones or restrict cross-border movement.
 Examples:
 C-8/74 Dassonville Case: The EU Court ruled that any national rules
that hinder trade between Member States, whether directly or indirectly,
are considered equivalent to trade barriers and must be removed.
 C-120/78 Cassis de Dijon Case: Germany had a rule that required
liqueurs to have a minimum alcohol content. This rule hindered the
import of French Cassis de Dijon. The Court decided that, in the absence
of a good reason (e.g., public health), Germany must accept the French
product, which reflects the principle of mutual recognition. If a product
is legally sold in one Member State, it should generally be accepted in
others.
o Positive Integration (Regulation):
o Unlike negative integration, positive integration focuses on creating common rules
across Member States, which helps harmonize national laws.
o The EU establishes common standards or regulations that Member States must follow,
ensuring consistency and cooperation.
o Examples:
 C-350/92 Spain v. Council Case: Spain challenged the EU's regulation on
supplementary protection certificates for pharmaceutical patents. The Court ruled
that the EU could establish additional rules to harmonize protection for
pharmaceutical patents across Member States, ensuring that patents received the
same protection level throughout the EU.
 Article 114 TFEU: This article enables the EU to pass laws that harmonize
national rules in areas where differences create barriers to trade, like product
safety standards, environmental laws, or consumer protection, helping to create a
unified market.

Pre-SEA
- Pre-1986 (Single European Act), tools for the approximation of laws (positive integration):
o Article 100 EEC (Treaty of Rome): “The Council, acting by means of a unanimous vote
on a proposal of the Commission, shall issue directives for the approximation of such
legislative and administrative provisions of the Member States as have a direct incidence
on the establishment or functioning of the Common Market”
o Article 101 EEC: issuing directives where differences in national legislation were
distorting the competition in the common market
- Article 100 unworkable (unanimity), article 101 too narrow

The SEA

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- Single European Act (signed Feb 1986 – in force July 1987)

- Obligation to establish/ensure the functioning of the internal market (now in article 26 TFEU):
“1. The Union shall adopt measures with the aim of establishing or ensuring the functioning of
the internal market, in accordance with the relevant provisions of the Treaties 2. The internal
market shall comprise an area without internal frontiers in which the free movement of goods,
persons, services and capital is ensured in accordance with the provisions of the Treaties (…)”
- (Today’s) article 114(1) TFEU as a general “internal market competence”
o Residual (not used where more specific legal bases exist)
o Drops unanimity  Council (QMV) and EU Parliament
o Horizontal competence: not tied to a policy area but tied to objectives
o Both establishment (circulation of goods/services) and functioning (distortion of
competition) of the common market
o Spain v. Council  even future rules (no previous disparities required)
- Major exception to the principle of conferral

Exempli Gratia
- Examples of EU acts based on article 114(1) TFEU:
o Data Protection (Directive 95/46)
o Unfair Commercial Practices (Directive 2005/99)
o European Security and Market Authority (Regulation 1095/2010)
o Consumer Rights (Directive 2011/83)
o Novel Foods and Food Ingredients (Regulation 2015/2283)
o Digital Services Act (Regulation 2022/2065)
o Artificial Intelligence Act

Limits to article 114 TFEU

- It could easily become an all-encompassing tool to disrupt the principle of conferral →

limitations to its scope
o Explicit – article 114 (2-5) TFEU
o Implicit – legal interpretation

Explicit limits
- There are clear, explicit limits to Article 114 TFEU that prevent it from being used excessively:
o Article 114(2) TFEU:
• Excludes certain areas from the application of Article 114, including:
• Fiscal provisions (tax laws)
• Free movement of people

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• Rights and interests of employed people (which fall under Article 115
TFEU)
o Article 114(4) TFEU:
• National exceptions: Member States (MSs) can maintain their own laws for
important public concerns like:
• Public morality
• Security
• Health
• Artistic heritage
• These exceptions are also subject to Article 36 TFEU, which outlines general
public policy exceptions (e.g., protecting health or security).
o Article 114(5) TFEU:
• Allows Member States to introduce their own national provisions but requires the
Commission’s approval before implementation.
• Expedited infringement procedure: If these national measures are considered to
violate EU law, they can be swiftly reviewed by the Court of Justice.

Implicit Limits
- There are also implicit limits that stem from legal interpretation. These limits are often
developed through the EU’s case law:
o Tobacco Advertising Case (Germany v. Parliament and Council, C-376/98):
• In this case, the Court of Justice reviewed the Tobacco Advertising Directive,
which banned all tobacco advertising in media other than television. The Court
pointed out that:
• Article 114 must be used to address obstacles to trade or prevent
distortions in competition between Member States.
• The Court laid down three criteria for using Article 114 TFEU:
1. Future obstacles must be likely to arise in the market.
2. Distortions in competition must be appreciable (significant
enough to affect the market).
3. Measures adopted under Article 114 must be effective in
addressing both the establishment and functioning of the internal
market.

Follow-up
- The first Tobacco Directive was invalidated by the Court of Justice (CJEU) because it did not
meet the legal requirements set out by Article 114 TFEU. The Directive was too broad and did
not sufficiently focus on cross-border concerns within the EU internal market.
- A new Tobacco Directive replaced the initial one, with a more limited scope. This new
Directive focused specifically on cross-border aspects of tobacco marketing, addressing the
internal market's needs without overreaching into areas that were outside the scope of market
integration.

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- In this case, the CJEU ruled that the new Tobacco Directive was valid under Article 114
TFEU. It confirmed that the Directive could pursue public health goals as long as they were
ancillary to genuine market harmonization.
- The Court ruled that it was possible to harmonize public health regulations under Article 114
as long as the secondary objectives (such as public health) were linked to the main aim of
improving the internal market.

A comparative perspective: the Commerce Clause

The U.S. Commerce Clause has long been used as a basis for regulating national economic matters
that affect interstate commerce. This is an important comparative perspective when thinking about the
EU's legal powers.

- Schechter v. US (1935):
o The U.S. Supreme Court ruled that the Commerce Clause only applied to commerce
that involved the flow of goods across state lines. Commerce, in this sense, required an
actual movement of commodities from one state to another.
- F.D. Roosevelt’s Court-Packing Plan:
o In response to limitations on federal power, President Franklin D. Roosevelt proposed
a plan to expand the number of Supreme Court justices, hoping to shift the Court’s
approach on interstate commerce.
- NLRB v. Jones (1938):
o The Court began to interpret the Commerce Clause more broadly. Now, it was not only
about direct interstate trade but also about any activity that affected interstate
commerce. The effect on commerce was the key factor.
- Wickard v. Filburn (1942):
o The Supreme Court extended federal authority even further. It ruled that any activity,
even if it occurred entirely within one state and did not involve direct interstate trade,
could be regulated if it had some effect on interstate commerce. For example, Wickard
v. Filburn involved a farmer growing wheat for personal use, which still had an impact
on interstate trade.
- Heart of Atlanta Motel v. US (1964):
o In this case, the Civil Rights Act of 1964 was upheld, and the Court reinforced the idea
that federal powers could regulate activities that had a substantial effect on interstate
commerce, including discrimination in places of public accommodation.

Article 352 TFEU

- The other horizontal clause lies in article 352(1) TFEU: “If action by the Union should prove
necessary, within the framework of the policies defined in the Treaties, to attain one of the
objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the
Council, acting unanimously on a proposal from the Commission and after obtaining the
consent of the European Parliament, shall adopt the appropriate measures. Where the
measures in question are adopted by the Council in accordance with a special legislative
procedure, it shall also act unanimously on a proposal from the Commission and after obtaining
the consent of the European Parliament”

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Bridging a Gap
- Article 352(1) TFEU is aimed at filling in a gap of competence – a power is necessary to reach
an EU objective, but a competence is missing
- Two scenarios:
o It is an EU policy, but a specific legal basis is missing
o It is not an EU policy, but it is still deemed necessary
- A residual competence clause, to be used when an action is necessary, but the tools are missing

Limits to article 352(1)

- Unanimity in the Council, EP’s consent
o For the Council to adopt measures under Article 352(1), unanimity among Member
States is required.
o Additionally, the European Parliament must give its consent for the proposed measures.
o This ensures that any action taken under this provision is carefully scrutinized and
agreed upon by both the Member States and the EU Parliament.
- Cannot entail harmonization of the laws of the MSs – article 352(3) TFEU
o Article 352(3) TFEU restricts the use of Article 352(1) for measures that involve the
harmonization of national laws. This means that the EU cannot use this provision to
force Member States to align their national legislation in areas where the Treaties do not
grant the necessary competences
- Cannot be used for CFSP – article 352(4) TFEU
o Article 352(4) TFEU makes it clear that Article 352 cannot be used for matters related
to the Common Foreign and Security Policy (CFSP). The CFSP has its own set of
specific rules and competences, and Article 352 cannot be applied to fill gaps in this area.
- Cannot be used for major institutional reforms – opinion 2/94
o Article 352(4) TFEU makes it clear that Article 352 cannot be used for matters related
to the Common Foreign and Security Policy (CFSP). The CFSP has its own set of
specific rules and competences, and Article 352 cannot be applied to fill gaps in this area.

Treaty revision, legislative procedures, international agreements and the

Budget

Reforming EU Law
- Reform of the primary law: treaty revision
o The process of revising the EU's foundational treaties involves amending primary law to
adapt the Union to new challenges or objectives. This is governed by Article 48 of the
Treaty on European Union (TEU), which provides for two distinct procedures:
• Ordinary Revision Procedure:
• Used for major institutional or policy changes.
• Requires a Conference of Member State representatives, often initiated
by the European Council.
• Amendments must be ratified by all Member States according to their
constitutional requirements (e.g., parliamentary approval or referenda).
• Simplified Revision Procedure:
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• Used for amendments that do not increase the competences of the EU.
• Allows for changes through decisions of the European Council, bypassing
the need for a full conference.
• Still requires unanimous approval and ratification by all Member States.
- Reform of derivate EU law: legislative procedures
o Derivate law refers to legislation adopted under the framework of the EU treaties. The
two main legislative procedures for enacting or amending such laws are:
• Ordinary Legislative Procedure (Article 294 TFEU):
• The default procedure for most policy areas.
• Ensures a balanced role for both the European Parliament (co-legislator)
and the Council of the EU.
• Involves multiple readings, amendments, and potential conciliation
committees.
• Special Legislative Procedures:
• Apply in areas where Member States retain greater control (e.g., taxation,
foreign policy).
• Typically give the Council a dominant role, with the Parliament having a
consultative or consent-based function.
- International agreements
o The EU’s competence to conclude international agreements is outlined in Articles 216–
218 TFEU:
• Scope: Agreements cover trade, cooperation, security, and other fields where the
EU has competence.
• Negotiation and Conclusion:
• Negotiations are conducted by the Commission (or the High
Representative for CFSP) under a mandate from the Council.
• Agreements require approval by both the Council and, often, the
European Parliament.
• Mixed Agreements:
• When the agreement touches on both EU and Member State competences,
it requires ratification by all Member States.
• This ensures respect for national sovereignty while allowing coordinated
external action.
- The budget
o The EU budget is governed by Articles 310–325 TFEU, focusing on revenue (resources)
and expenditure (programs):
• Revenue:
• The EU is funded by contributions from Member States (GNI-based,
VAT-based), customs duties, and other sources.
• Expenditure:
• Allocated to policies such as cohesion, agriculture, research, and external
relations.
• Adoption Process:
• The Multiannual Financial Framework (MFF) sets long-term spending
limits, requiring unanimity in the Council and Parliament’s approval.
• Annual budgets are negotiated between the Council and Parliament under
the ordinary legislative procedure.

Primary law
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- EU Primary law comprises foundational legal documents that establish and govern the European
Union. These include:
o Treaties (e.g., TEU, TFEU), protocols, annexes, and acts of accession and withdrawal.
o Charter of Fundamental Rights and unwritten general principles of EU law.
- Certain elements function as the "constitution" of the EU, providing a legal framework for its
governance:
o Article 2 TEU, general principles, the Charter, rules on competences, institutional
balance, functioning, and judicial protection.
o Key cases like Les Verts v. Parliament (C-294/83) emphasize the constitutional nature of
EU law.
- Treaty Reform:
o Governed by Article 48(1) TEU, which allows for amendments via the ordinary revision
procedure or the simplified procedure.

Treaty reform: ordinary procedure

- Article 48(2-5) TEU:
o Proposal Submission:
• Can be initiated by the Commission, a Member State (MS), or the European
Parliament.
• Proposal is sent to the Council, which notifies the European Council (EuCo) and
national parliaments.
o Convention Stage:
• The EuCo may decide to convene a Convention composed of representatives
from national parliaments, national governments, the European Parliament, and
the Commission.
• The Convention drafts a proposal, which is then forwarded to an
intergovernmental conference (ICG).
o Direct ICG Option:
• If the proposed modifications are deemed minor, the EuCo can bypass the
Convention and call the ICG directly.
o Ratification:
• The signed Treaty must be ratified by all Member States through parliamentary
approval, referenda, or constitutional court processes, depending on national
requirements.
• If, after two years, 4/5 of the Member States have approved but others have not,
the matter is referred back to the EuCo for resolution.

Treaty reform: special procedures

- Article 48(6): Amendments to Part III of the TFEU (internal policies)  reforms of internal
policies which do not entail an extension of the EU’s competences  proposal is sent to EuCo,
which decides alone (unanimity) + national ratification
- Article 48(7): passerelle clause  EuCo decides by unanimity, with consent of EU Parliament,
if no national parliament opposed the change
o Shift from Council unanimity to QMV
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o Shift from special to ordinary legislative procedure

- Other special procedures are established elsewhere in the Treaties (e.g. amendment of the
Statute of the Court of Justice at article 281 TFEU)

Legislative procedures
- Article 289(1) TFEU - Amendments to Part III of the TFEU (Internal Policies):
o Designed for reforms related to internal policies that do not extend EU competences.
o Proposal is submitted to the European Council (EuCo), which makes the decision alone,
requiring unanimity.
o Any changes must also undergo national ratification in Member States.
- Article 48(7) TEU – Passerelle Clause:
o Allows procedural changes without full treaty revision.
o The EuCo decides by unanimity, with the consent of the European Parliament.
o No national parliament must oppose the change.
- Permits two key shifts:
o From Council unanimity to Qualified Majority Voting (QMV).
o From a special legislative procedure to the ordinary legislative procedure.
- Other Special Procedures:
o Specific provisions exist elsewhere in the Treaties for targeted amendments.
o Example: Article 281 TFEU allows the Statute of the Court of Justice to be amended
following a special process.

Ordinary legislative procedure

1. Commission Proposal:
o The Commission has the exclusive right to propose legislation, giving it control over the
agenda.
o It also has the power to withdraw a proposal, although this is reviewable by the Court
of Justice.
o Proposals are accompanied by an impact assessment to evaluate their potential effects.
2. First Reading:

o The bill is sent to the European Parliament (EP):

o The EP may approve, reject, or amend the proposal with a majority of votes cast.
o The bill then moves to the Council of the EU:
o The Council may either approve (by Qualified Majority Voting, QMV) or adopt a
different position.

3. Second Reading:

o The bill returns to the EP:

 The EP can approve (majority of votes cast), reject (majority of all MEPs), or
propose amendments.
o It goes back to the Council
 The Council must approve the EP’s amendments (QMV).

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 If the Commission has issued a negative opinion on the EP's amendments,

unanimity in the Council is required.

4. Conciliation Stage:

o If the EP and the Council cannot agree, a joint conciliation committee is convened.
o This committee, consisting of members from both the EP and the Council, works with
the assistance of the Commission to draft a joint text.
o If no agreement is reached, the process ends.

5. Third Reading:

o If a joint text is agreed upon, it is sent back to the EP and the Council.
o Both must approve the text:
o EP: by a majority of votes cast.
o Council: by QMV.

6. Signature and Publication:

o The final text is signed by the President of the EP and the President of the Council.
o It is published in the Official Journal of the EU and takes effect either on the specified
date or 20 days after publication (vacatio legis).

Ordinary procedure: trilogues

- The ordinary legislative procedure is often lengthy and complex, leading to the use of informal
practices like trilogues to streamline the process.
- Trilogues involve representatives from the European Parliament (EP), the Council of the EU,
and the European Commission.
o EP representatives include the Rapporteur and the Chair of the relevant Standing
Committee.
o Council representatives include the Coreper Representative of the Presidency State and
the Chair of the relevant Working Group.
o Commission representatives come from the competent Directorate-General (DG).
- These informal meetings aim to resolve disagreements and reach agreements early in the
legislative process.
- Most trilogues occur before the first reading, helping expedite the adoption of legislation.
- As a result, about 90% of legislative acts are adopted at the first reading.

Special legislative procedures

- Special procedures are defined time after time by the Treaties  many types
o Commission’s initiative: Similar to the ordinary legislative procedure, where the
Commission initiates proposals, but the specific procedure varies.
o Council legislation  most frequently, the Council will be the deciding institution by
either consent (veto power) or consultation (no-veto) of the EP. E.g., article 352 TFEU

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o EP legislation  EP as deciding institution, consent of the Council. E.g., article 226(3)

TFEU

International agreements
- Article 218 TFEU governs agreements with third countries or international organizations.
- The process typically starts with a recommendation (not a proposal) from the Commission or
the High Representative (HR).
- The Council then opens negotiations, selecting the negotiator, usually the Commission or HR.
- The negotiator proposes to the Council to adopt a decision authorizing the agreement's
signature, which may include provisional application.
- After the Lisbon Treaty, the European Parliament (EP) must often give consent to these
agreements, unless it’s a consultation case. The EP is not involved in CFSP (Common Foreign
and Security Policy).
- The Court of Justice may issue an opinion, which is binding.
- The Council makes the final decision, typically by Qualified Majority Voting (QMV).
However, unanimity is required in CFSP or when the internal policy area has a different voting
requirement.

Finance provisions
- Procedures for the collection and expenditure of EU funds
- Own Decision (article 311 TFEU)  Council by unanimity, with EP’s consultation and
ratification in the MS  decision on the EU quotas of customs and agricultural duties, VAT,
levy proportional to the States’ GDP
- Multiannual financial framework (article 312 TFEU)  Council by unanimity and EP’s
consent (but passerelle clause allows for QMV)  establishes the annual ceiling for specific
fields (e.g., border management) for at least 5 years (normally 7 yrs)
- Annual budget (article 314 TFEU)  similar to the ordinary legislative procedure, with
possible conciliation committees

Legal basis
- Principle of Conferral:
o EU action must be justified based on powers conferred to it by the Treaties. This means
the EU can only act within the scope of powers granted by the Member States.
- Legal Basis:
o A legal basis is a Treaty provision that empowers EU institutions to take action. It can be
found in either primary law (the Treaties) or secondary law (legislation enacted by the
EU institutions).
o It specifies the competence, procedure, and legal tool (e.g., regulation, directive, decision)
required for the action.
- Identification of Legal Basis:
o The legal basis must be clearly identified in the EU act, as it provides the grounds for
judicial review. If the legal basis is incorrect, the act can be challenged in court.

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- Duty to Motivate:
o More generally, EU measures must explain and justify the reasons on which they are
based, fulfilling the duty to motivate decisions. This ensures transparency and
accountability.

Exempli gratia
- Article 192(1) TFEU: “The European Parliament and the Council, acting in accordance with
the ordinary legislative procedure and after consulting the Economic and Social Committee
and the Committee of the Regions, shall decide what action is to be taken by the Union in
order to achieve the objectives referred to in Article 191”.

Doubts concerning the legal basis

- Multiple Applicable Legal Bases:
o Sometimes, a single measure can be justified on multiple grounds, with more than one
legal basis appearing relevant. In such cases, determining the primary legal basis
becomes crucial.
- Doctrine of the Centre of Gravity:
o To resolve these situations, the doctrine of the centre of gravity is applied. This means
identifying the predominant objective of the measure and selecting the legal basis that
aligns with this main goal. This ensures consistency and proper use of the Treaty
provisions.
- C-36/98 Danube River Case:
o In the Danube River case, the Court ruled that environmental protection in the Danube
Basin was the primary objective, while the use of river waters was considered incidental.
Thus, the legal basis was found under environmental protection, not water use.
- Coexistence of Multiple Legal Bases:
o In some cases, multiple legal bases can coexist. For example, the Citizenship Directive
consolidates several previous measures on citizenship and movement. This kind of
unification is possible when the objectives align.
- Limits to Coexistence:
o However, multiple legal bases cannot coexist if the procedures associated with those
bases differ significantly. In such cases, choosing the appropriate procedure becomes a
deciding factor.

Secondary and tertiary EU law

Hierarchy of EU sources
1. Primary law  (Treaties, Charter, general principles, etc)
2. Secondary law  EU legislation + Non-legislative acts of secondary law + int.l agreements
3. Tertiary law  delegated and implementing acts (articles 290 and 291 TFEU) + law based on
international agreements + other acts of tertiary law

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Secondary and tertiary law

- The difference is one of rank of the legal basis, not of legal instrument
o Secondary law  legal basis in the Treaties, often in the form of a legislative procedure
(ordinary or special). International agreements too
o Tertiary law  legal basis in EU secondary law, often in the form of delegated or
implementing acts
- Derived law of the EU: Both secondary and tertiary laws form the derived law of the EU,
created based on the powers and procedures established by primary law (the Treaties).

Legislative procedures and its consequences

- Legislative procedure: A procedure is considered "legislative" if the legal basis of the measure
explicitly defines it as such. This was confirmed in the case Joined C-643-647/15, Council v.
Slovakia.
- Consequences of a legislative procedure:
o Information must be shared with national parliaments (as per Protocol 1), and they have
the right to assess the measure’s compliance with the subsidiarity principle (as per
Protocol 2).
o National parliaments can challenge EU legislation by filing an action for annulment if
Protocol 2 is violated.
o The Council's meetings and minutes must be publicly accessible, ensuring transparency
in the legislative process.
-

EU normative tools

- Article 288 TFEU states that the EU institutions can adopt regulations, directives, decisions,
recommendations, and opinions to exercise the Union's competencies. These are the typical forms
of EU acts.
- Based on the procedure followed, acts can be classified as either legislative or non-legislative,
and secondary or tertiary.
- Legislative acts are those adopted through the ordinary or special legislative procedures, while
delegated or implementing acts are those adopted under Articles 290 or 291 TFEU.

Choosing the tools

- The choice of tool is often determined by the legal basis. When not specified, it depends on the
institution.
- The general rule is to apply the least restrictive measure. This means directives are preferred over
regulations, and more general directives are favored over those with specific details. This aligns
with the principle of proportionality, ensuring that measures do not exceed what is necessary
to achieve the objectives.

Hierarchy of instruments?
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- In principle, the instruments mentioned in Article 288 TFEU are of equal rank, and their
hierarchy depends on the specific legal basis under which they are adopted.
- However, special hierarchical positions can arise in certain cases, often connected to the legal
basis:
o Passerelle clauses decisions: These allow the shift from unanimity to qualified majority
voting or from special to ordinary legislative procedures, which can affect the ranking of
legal instruments.
o Comitology Regulation: Establishes procedures for the adoption of implementing acts
by the Commission, but the ranking of such acts can depend on the context.
o Delegating/delegated acts: Acts adopted by the Commission based on a delegation of
powers from the Council, and these acts generally have a lower hierarchy than legislative
acts.
o International agreements: In some cases, international agreements may take precedence
over other provisions of secondary law due to their nature and legal framework

Regulations
- Article 288(2) TFEU: “A regulation shall have general application. It shall be binding in its
entirety and directly applicable in all Member States”
o Generality: Regulations are tools of general legislation, addressing broad categories of
people or entities.
o Bindingness: Regulations are binding in their entirety.
o Direct applicability: Regulations do not require national measures for implementation;
they apply directly in Member States.
o Addresses: Regulations apply to all Member States without individual tailoring.
Generality (1)
- Regulations typically deal with abstract categories based on factual or legal distinctions.
o Example:
• "All nuclear manufacturers with more than 50 employees" would be regulated
under a general, abstract rule.
• A specific list of manufacturers would be an example of a decision rather than a
regulation.

Direct applicability
- No need for national acts to adopt or transpose regulations into local law. Regulations apply
automatically upon entry into force
o Example:
• C-34/73 Fratelli Variola: A regulation’s direct application means it takes effect
without national laws being required to implement it.
• National laws may still be needed for enforcement or to impose sanctions.
-

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Decisions (2)
- Article 288 TFEU: “A decision shall be binding in its entirety. A decision which specifies those
to whom it is addressed shall be binding only on them”
o Bindingness: Decisions are binding in full, though they may apply only to specific
addressees.
o Direct applicability: Similar to regulations, but may target specific individuals,
companies, or Member States.
Addressed Decisions
- Binding on the mentioned subjects
- Addressed to persons (natural, legal or both)
o Similar to administrative acts (e.g., anti-competitive agreements, individual sanctions)
- Addressed to States (e.g., prohibition to aid undertakings)
- Addressed to Institutions (e.g., EuCo’s decisions on the composition of the EU Parliament and
Council)

Non-addressed decisions
- Non-addressed decisions (also known as sui generis decisions)  similar to regulations
- Special non-addressed decisions were often used in the Second and Third Pillar of the
Maastricht Treaty. E.g., Framework Decision on the European Arrest Warrant
(2002/584/JHA)

Directives
- Article 288 TFEU: “A directive shall be binding, as to the result to be achieved, upon each
Member State to which it is addressed, but shall leave to the national authorities the choice of
form and methods”
o Binding on the Member States: Directives are compulsory for Member States, requiring
them to achieve the intended result.
o Discretion on the method: Member States are free to choose how they achieve the
specified result.
o Implementation is required: After a period for transposition, Member States must adopt
measures that implement the directive

Discretion and detail

- Directives are often directed to the entirety of the MS, but specific States or groups of States
can be the addressees
- Binding on the States, not in the States
- “Softer” than the Regulations  often used in sensitive areas, when aiming at minimum
harmonisation
- “Detailed” directives are not rare  little discretion left

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Implementation
- Member States must implement directives within a set timeframe, often through national
legislation.
o Duty to Implement: Even before formal transposition, Member States must avoid
actions that could undermine the directive's objectives.
o Failure to comply with the implementation obligation can lead to legal consequences.
-
Recommendations and Opinions
- Article 288 TFEU: “Recommendations and opinions shall have no binding force”
o Soft law: These instruments do not have binding effects and cannot be challenged in
court (Article 263 TFEU).
o Recommendations: Serve as policy advice from EU institutions or other actors.
o Opinions: Reflect the position of an institution or actor on specific issues.
o Use in interpretation: Though non-binding, these tools can help in interpreting EU law.
o Distinction: The "opinions" of the European Court of Justice on international treaties
are binding, which differs from the non-binding "opinions" under Article 288 TFEU.
International agreements
- Article 216(2) TFEU  “Agreements concluded by the Union are binding upon the institutions
of the Union and on its Member States”
o International agreements are a part of EU law from the moment they enter into force (C-
181/73 Haegeman case).
o Rank: International agreements are ranked above secondary law but below primary law
in the EU legal hierarchy.
o Consistency: Article 218(11) TFEU ensures that international agreements are consistent
with EU law. This includes an opinion from the Court of Justice.

Other sources of law

- Council Decisions in the field of CFSP  general or individual
- Interinstitutional agreements  see article 295 TFEU on “arrangement for their cooperation”
between Commission, Parliament and Council (e.g., agreement on Better Law-Making)  may
be binding and justiciable (13.2 TEU)
- Informal action  white papers, press releases, informal agreements

Tertiary EU law
- Adopted on the basis of EU secondary law
- Delegated and implementing acts as the main form of tertiary law  majority of the EU
regulative production
- Legislating executive  the EU’s executive power performs law-making functions
(Commission and agencies)  need for constitutional guarantees
o Delegated acts  delegation of legislative power (article 290 TFEU)
o Implementing acts  executive power (article 291 TFEU)

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- The choice between article 290 and 291 TFEU is a discretionary political decision of the EU
legislator. See C-427/12 Commission v. Parliament and Council

Delegated acts (1)

- Article 290(1) TFEU:
o Article 290(1) TFEU:
o Delegating act: Delegation of powers to the Commission to adopt non-legislative acts to
supplement or amend EU law.
o These acts are non-legislative but have general application.
o The delegating act defines the scope, content, and duration of the delegation.
o The essential elements must be defined in the delegating act.

Amending/supplementing
- The delegated power may be one of integration or amendment (“supplement or amend”):
o Supplement  delegated act is ranked below secondary law and cannot alter the
delegating act (additions in a separate text)
o Amendment  delegated act is at the same level as the delegating act (deletions,
replacements and changes to the text)
- The choice between supplementing and amending acts must be expressly made in the delegating
act  it is up to the EU legislator to make it, not to the Commission

Essential elements
- The Commission must adopt acts of general application whose essential elements are defined
in the delegating act  essential elements doctrine:
o C-23/75 Rey Soda  what counts as an “essential element” depends on the EU
legislator (political question)
BUT
o C-355/10 Schengen Borders Code  political choices falling upon the EU legislator
cannot be delegated  objective factors reviewable in court  proxies to look at: the
essential objective of the delegating act, fundamental rights affected so much to require
legislative intervention, competing interests to be balanced

Political safeguards
- Article 290(2) TFEU:
o The EU Parliament or the Council can revoke the delegated power
o A delegated act enters into force if no objection is raised within the specified
timeframe veto power act

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Implementing acts (2)

- Article 291(1) TFEU: “Member States shall adopt all measures of national law necessary to
implement legally binding Union acts”
- Article 291(2) TFEU: “Where uniform conditions for implementing legally binding Union acts
are needed, those acts shall confer implementing powers on the Commission, or, in duly
justified specific cases and in the cases provided for in Articles 24 and 26 of the Treaty on
European Union, on the Council”
- Implementing powers  Commission and Council (for specific cases or CFSP)

Political control
- Article 291(3) TFEU: “For the purposes of paragraph 2, the European Parliament and the
Council, acting by means of regulations in accordance with the ordinary legislative procedure,
shall lay down in advance the rules and general principles concerning mechanisms for control
by Member States of the Commission's exercise of implementing powers”
- The EU legislator sets out the conditions for the control of the MSs on the Commission’s
implementing power by regulation

Comitology regulation
- Comitology Regulation (Reg. 182/2011)  Commission’s drafts of implementing measures
are examined by a committee nominated by the MSs
o Implementing measures of general kind + individual measures in specific policy areas 
Examination committee  positive opinion (adoption), no opinion (adoption) or
negative opinion (rejection)
o Other implementing measures (residual)  Advisory committee  positive opinion or
no opinion  Commission may adopt the measure anyhow
- Parliament and Council can exercise “persuasion” or trigger ex post judicial review

Agencies: delegated powers

- C-9/56 Meroni: delegation of administrative power to bodies not defined under the Treaties
(like agencies) must be limited to clearly defined powers, always under the Commission’s
supervision, no discretion, no regulatory acts  non-delegation doctrine
- Later growth of the EU’s administrative and regulatory tasks
- C- 270/12 ESMA  discretionary acts, individual or general, can be delegated to public bodies
if “precisely delineated” and subject to judicial review  (limited) delegation doctrine

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Autonomy, direct effects and primacy

The essential characteristics of EU law

- Opinion 2/13: “EU law is characterised by the fact that it stems from an independent source of
law, the Treaties, by its primacy over the laws of the Member States and by the direct effect of
a whole series of provisions”
- “These essential characteristics of EU law have given rise to a structured network of
principles, rules and mutually interdependent legal relations linking the EU and its Member
States, and its Member States with each other, which are now engaged, as is recalled in the
second paragraph of Article 1 TEU, in a ‘process of creating an ever-closer union among the
peoples of Europe’”.
- Essential principles of EU law  regulating the relations between EU law and State law

The foundational years

- Autonomy, direct effect, and primacy were established in the Sixties by the Court of Justice
and later fine-tuned
- Pressure from lawyers (FIDE) and the Legal Service of the EU Commission  a project of
integration through law

Autonomy
- C-26/62 Van Gend en Loos (1963): “‘The community constitutes a new legal order of
international law for the benefit of which the states have limited their sovereign rights, albeit
within limited fields, and the subjects of which comprise not only member states but also their
nationals”
- C-6/64 Costa v. Enel (1964): “By contrast with ordinary international treaties, the EEC
Treaty has created its own legal system which, on the entry into force of the Treaty, became an
integral part of the legal systems of the Member States and which their courts are bound to
apply”

An autonomous legal order

- “The law stemming from the Treaty, an independent source of law”  EU law’s validity
stems from the Treaties themselves a legal system detached from the intent of the Treaty
drafters
o Legal concepts under EU law have a meaning separate and are specific to the aims and
goals of the Union  ECJ as the ultimate arbiter
o The nature of the EU itself is different from that of regular international organizations
 from international treaties to the Treaty-Constitution (sui generis)  principles of
constitutional rather than international law (direct effect/primacy)
- Les Verts (1986): “The European Economic Community is a Community based on the rule of
law, inasmuch as neither its Member States nor its institutions can avoid a review of the

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question whether the measures adopted by them are in conformity with the basic constitutional
charter, the Treaty”
- Kadi I (2008): “It is also to be recalled that an international agreement cannot affect the
allocation of powers fixed by the Treaties or, consequently, the autonomy of the Community
legal system, observance of which is ensured by the Court”
- Opinion 2/13: “The autonomy enjoyed by EU law in relation to the laws of the Member States
and in relation to international law requires that the interpretation of those fundamental rights
be ensured within the framework of the structure and objectives of the EU”
- Opinion 1/17: “That autonomy, which exists with respect both to the law of the Member
States and to international law, stems from the essential characteristics of the European Union
and its law. EU law is characterised by the fact that it stems from an independent source of law,
namely the Treaties, by its primacy over the laws of the Member States, and by the direct effect
of a whole series of provisions that are applicable to their nationals and to the Member States
themselves”
- Opinion 1/17: “That autonomy accordingly resides in the fact that the Union possesses a
constitutional framework that is unique to it. That framework encompasses the founding
values set out in Article 2 TEU, which states that the Union ‘is founded on the values of respect
for human dignity, freedom, democracy, equality, the rule of law, and respect for human rights’,
the general principles of EU law, the provisions of the Charter, and the provisions of the EU
and FEU Treaties, which include, inter alia, rules on the conferral and division of powers, rules
governing how the EU institutions and its judicial system are to operate […] In order to ensure
that those specific characteristics and the autonomy of the legal order thus created are
preserved, the Treaties have established a judicial system intended to ensure consistency and
uniformity in the interpretation of EU law
- Council v. Hungary (2022): “the specific and essential characteristics of EU law, which stem
from the very nature of EU law and the autonomy it enjoys in relation to the laws of the
Member States and to international law […] implies and justifies the existence of mutual trust
between the Member States that those values will be recognised and, therefore, that the EU law
that implements them will be respected […] The values contained in Article 2 TEU […] define
the very identity of the European Union as a common legal order. Thus, the European Union
must be able to defend those values, within the limits of its powers as laid down by the Treaties”

Direct effect
- Van Gend en Loos (1963): “Independently of the legislation of Member States, Community
law therefore not only imposes obligations on individuals but is also intended to confer upon
them rights which become part of their legal heritage. These rights arise not only where they are
expressly granted by the Treaty, but also by reason of obligations which the Treaty imposes in a
clearly defined way upon individuals as well as upon the Member States and upon the
institutions of the Community”
- Direct effect as the self-executing character of EU norms in front of national courts  direct
enforcement of an international treaty in a national court

The original test

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- “The wording of Article 12 contains a clear and unconditional prohibition which is not a
positive but a negative obligation. This obligation, moreover, is not qualified by any reservation
on the part of states which would make its implementation conditional upon a positive
legislative measure enacted under national law. The very nature of this prohibition makes it
ideally adapted to produce direct effects in the legal relationship between Member States and
their subjects. The implementation of Article 12 does not require any legislative intervention
on the part of the states”
- Test for direct effect in van Gend en Loos
o clear  precise rights/obligations
o unconditional  automatic (no implementing legislation needed) and absolute (no
reservations/exceptions)

An evolving test
- C-74/76 Iammelli (1977): “measures having an equivalent effect”  Is this “clear” or “precise”?
- Reyners (1974): “[R]estrictions on the freedom of establishment of nationals […] shall be
prohibited […] The EP and the Council […] shall act by means of directives”  Is this
“automatic”?
- Salgoil (1968): exceptions to the prohibition of quantitative restrictions on imports (public
morality, policy, security), still has direct effect  Is this “absolute”?

The current test: Rigore è quando arbitro fischia

- Direct effect  EU norms have direct effect when applicable in court
- Standard test (clear and unconditional character of norms) as interpreted by the Court of
Justice
- Even unwritten general principles can have direct effect (e.g., Mangold. See infra)
- Binding on national administrations too (C-103/88 Fratelli Costanzo)

Exempli gratia
- E.g. C-204/21, Commission v. Poland (IV): “The Court has ruled that the second subparagraph
of Article 19(1) TEU, interpreted in the light of Article 47 of the Charter, which imposes on
the Member States a clear and precise obligation as to the result to be achieved and which is
not subject to any conditions, in particular as regards the independence and impartiality of the
courts called upon to interpret and apply EU law and the requirement that those courts must be
previously established by law, has direct effect which means that any provision, case-law or
national practice contrary to those provisions of EU law, as interpreted by the Court, must be
disapplied”

Vertical and horizontal direct effect

- Vertical direct effect  EU norms can be invoked in court against the State
- Horizontal direct effect  EU norms can be invoked in court against private actors

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- C-43/75 Defrenne (1976): direct effect may be horizontal as well  the prohibition of pay
discrimination between men and women is directly effective

Direct effect of regulations

- Can regulations have direct effect? Regulations are “directly applicable”  entirely binding on
the Member State (legislative, executive, judiciary)
- C-403/98 Monte Arcosa: “[A]lthough by virtue of the very nature of regulations and of their
function in the system of sources of Community law, the provisions of those regulations
generally have immediate effect in the national legal systems without its being necessary for the
national authorities to adopt measures of application, some of their provisions may none the
less necessitate, for their implementation, the adoption of measures of application by the
Member States”
- Most provisions of regulations are “self-executing” (direct effect: standard test), others are not
 Direct effect ≠ direct applicability

Direct effect of decisions

- Can Decisions have direct effect?
- Decisions addressed to individuals  direct effect
- Decisions addressed to MS  possible direct effect (same test as for regulations)
- Decisions not addressed  in principle may have direct effect, but at times it is explicitly ruled
out (e.g., framework decisions)

Direct effect of directives

- Can Directives have direct effect?
- C-41/74 Van Duyn  directives may have vertical direct effect  Standard test for direct effect
- C-148/78 Ratti: estoppel argument  you shall not benefit from your own (legal) failure
(missing/inadequate transposition) BUT also, as a consequence, direct effect of directives only
in case of incomplete or delayed implementation

No-horizontal direct effect rule

- C-152/84 Marshall: directives cannot have horizontal direct effect
- C-91/92 Faccini Dori:
o Directives are addressed to the MS, individuals cannot be held responsible for the State’s
inactivity
o Horizontal direct effect would transform directives into “hidden” regulations

Mitigating the no-horizontal effect rule: notion of “state”

- Qualifications to the Marshall-Dori doctrine  extensive interpretation of “addressed to the
MS”
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o Regional and local authorities

o Independent authorities
o Private actors acting as public authorities (e.g., public contractors. See C-188/89 Foster)
o MS acting as a private actor (e.g., State as employer)

Mitigating the no-horizontal effect rule: consistent interpretation

- C-14/83 Von Colson  duty of consistent interpretation of national law for courts, even
concerning preexisting legislation and legislation not conceived to implement the directive
o Duty is applicable horizontally
o After the deadline for the transposition of directive
o Limits: never contra legem, respect local interpretive methods

Mitigating the no-horizontal effect rule: reliance on primary law

- Directives only “give substance” to primary law (general principles/Charter)  it is not the
directive, but the primary source that has direct effect
- General principles  Mangold, Kücükdeveci, Danski Industri (unwritten principle of non-
discrimination on the basis of age)
- EU Charter  Ebenberger (article 21), Bauer – Max-Planck – Sindacatul (article 31.2), K.L.
(article 47)

Direct effect of international agreements

- International agreements or decisions adopted within their framework may be invoked in courts
by individuals (direct effect)
- Two-step test: (i.) policy test/ (ii.) standard direct effect test
- E.g., the purpose of the WTO agreement excludes direct effect (C-149/96 Portugal v. Council)

Primacy
- Which level will prevail if EU law conflicts with national law? No “supremacy clause” in the
Treaties
- Italian CC, decision 14/1964 (Costa)  EC law is implemented nationally via ordinary
legislation (statutory rank)  subsequent law of the same rank can derogate (lex posterior
derogat priori)

Costa v. Enel (1964)

- C-6/64 Costa v. Enel: “[…] the law stemming from the Treaty, an independent source of
law, could not, because of its special and original nature, be overridden by domestic legal
provisions, however framed, without being deprived of its character as Community law and
without the legal basis of the Community itself being called into question. The transfer by the
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States from their domestic legal system to the Community legal system of the rights and
obligations arising under the Treaty carries with it a permanent limitation of their sovereign
rights, against which a subsequent unilateral act incompatible with the concept of the
Community cannot prevail”
- Principle of primacy (primauté) connected to autonomy/direct effect

EU law or national constitutional law?

- C-11/70 Internationale Handelsgesellschaft (1970): “[…] the law stemming from the Treaty,
an independent source of law, cannot because of its very nature be overridden by rules of
national law […] the validity of a Community measure or its effect within a Member State
cannot be affected by allegations that it runs counter to either fundamental rights as
formulated by the constitution of that State or the principles of a national constitutional
structure”
- BUT: contextual development of EU fundamental rights (see infra)

The Simmental mandate

- C-106/77 Simmenthal: “a national court which is called upon, within the limits of its
jurisdiction, to apply provisions of Community law is under a duty to give full effect to those
provisions, if necessary refusing of its own motion to apply any conflicting provision of
national legislation, even if adopted subsequently, and it is not necessary for the court to request
or await the prior setting aside of such provision by legislative or other constitutional means” 
Simmenthal mandate: duty of immediate disapplication

Primacy and international agreements

- Article 351 TFEU  agreements concluded before the establishment of the Communities or the
State’s accession shall not be affected by the Treaties  C-812/79 Burgoa: “[article 351 TFEU]
would not achieve its purpose if it did not imply a duty on the part of the institutions of the
[Union] not to impede the performance of the obligations of Member States which stem from a
prior agreement”  exception to primacy
- C-402/05 P Kadi I  However, article 351 TFEU cannot justify exceptions to EU fundamental
rights

The Unbearable Wight of Primacy

- (Absolute) primacy is a structural principle of EU law, but it presupposes supremacy over
national law which is often barely tolerated in the MS
- No Treaty rule establishes the primacy of EU law
- Failed codification in the constitutional treaty (article I-6)
- Declaration 17 attached to the Treaties (not binding)  “The Conference recalls that in
accordance with well-settled case law of the Court of Justice […] the Treaties have primacy over
the law of Member States”

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Brilliant theory, dull practice

- A series of practical factors stand in the way of the practical prevalence of EU law
o Judicial restraint in some countries (Nordic, Netherlands)
o Lack of knowledge, arguments not made by the parties
o Lack of resources (preliminary reference is long and difficult)
- Often consistent interpretation is the easiest way

Direct effect, thus primacy

- What is the relation between direct effect and primacy? Is primacy a characteristic of directly
effective norms only?
- C-573/17 Poplawski II: “A national court’s obligation to disapply a provision of its national
law which is contrary to a provision of EU law, if it stems from the primacy afforded to the
latter provision, is nevertheless dependent on the direct effect of that provision in a dispute
pending before that court”
- Direct effect is a necessary condition for primacy (and disapplication)

Absolute and conditional primacy

- EU law still claims absolute primacy over national constitutional law
- National supreme and constitutional courts mostly accept primacy conditional upon respect for
some core principles of the national constitution  conditional primacy doctrine

Varieties of conditional primacy

- Rights-related review  primacy of EU law conditional upon the respect for their core
fundamental rights. Developed in Germany and Italy, other countries have joined too (e.g.,
Belgium, Spain)
- Ultra vires review  primacy of EU law conditional upon the EU not overstepping its
conferred powers, the national (constitutional) court might check. Introduced in the Maastricht
judgment of the German CC. Vast diffusion: Denmark, Poland, Cyprus, the Czech Republic.
- Identity review  primacy of EU law conditional upon respect for the country’s national
constitutional identity: core areas of State law (e.g., criminal law, defence and internal affairs,
fiscal policy, social security). Originally in France and Germany, now also in Belgium, Hungary,
Italy, Poland, Romania.

Open conflict
- In four cases so far, national (constitutional) courts have declared they would not apply EU law
 conditional primacy from bark to bite
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o Landtová – Holubec, Czech Constitutional Court (2012)

• Landtová – Holubec, Czech Constitutional Court (2012): by interpreting
Regulation 1408/71 on the application of social security schemes in the Union,
the ECJ intruded into an internal quarrel between the Constitutional Court and
the Supreme Administrative Court of the Czech Republic. The latter declared
that the ECJ’s judgement Landtová was not to be applied
o Dansk Industri – Ajos, Supreme Court of Denmark (2016)
• Dansk Industri – Ajos, Supreme Court of Denmark (2016): horizontal
application by the ECJ of the principle of non-discrimination on the basis of age
 no such principle existed in the view of the Danish Supreme Court (similar to
the public outcry after Mangold)
o Weiss – PSPP, German Constitutional Court (2020)
• Weiss – PSPP, German Constitutional Court (2020): the ECB launched a
program of massive purchase of public sector securities on the secondary market
(PSPP). The GCC asked the ECJ to check whether this massive purchase might
hide a de facto monetization of public debt (forbidden under article 123 TFEU).
The ECJ found the PSPP within the limits of the Treaties (Weiss judgement,
2018). The GCC deemed the proportionality analysis performed by the ECJ too
superficial and considered the judgement ultra vires (as it allowed ECB’s decisions
potentially beyond the Treaties).
o K-3/21, Polish Constitutional Court (2021)
• K-3/21, Polish Constitutional Court (2021): the Polish Constitutional Court has
been packed with judges loyal to the governing party Law and Justice between
2015 and 2017 and deemed non-independent by both the ECJ and the Court of
Strasbourg. The government applied to the captured CC for an opinion on the
compatibility of the ECJ’s case law with the Polish Constitution. The CC rubber-
stamped the government’s request.
- All cases of ultra vires review

EU fundamental rights: general principles and the Charter

The initial silence

- Limited support for the protection of human rights at the beginning of European integration:
o No mention in the Schuman Declaration (1950)
o No norms on rights in the ECSC Treaty (1951)
o Monitoring and enforcement of rights against the Community and the Member States in
the EPC Treaty  eventually abandoned (1953)
o Silence again in the EEC and Euratom Treaties (1957)

Judicial denial
- The Court of Justice too at the beginning did not recognize rights in its own case law. E.g.,
Stork (1959), Geitling (1960); Sgarlata (1965).

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- E.g., Sgarlata: “The applicants object that, if recourse to article 173 were to be refused by reason
of a restrictive interpretation of its wording, individuals would thus be deprived of all protection
by the courts both under community law and under national law, which would be contrary to
the fundamental principles governing all the member states. However, these considerations,
which will not be discussed here, cannot be allowed to override the clearly restrictive
wording of article 173, which it is the court's task to apply”

The birth of the general principles

- Breakthrough in the late ’60s – early ‘70s  Stauder (1969), Internationale Handelgesellschaft
(1970), Nold (1974).
- C-11/70 Internationale Handelgesellschaft: “Recourse to the legal rules or concepts of
national law in order to judge the validity of measures adopted by the institutions of the
Community would have an adverse effect on the uniformity and efficacy of Community law.
[…] In fact, the law stemming from the Treaty, an independent source of law, cannot because of
its very nature be overridden by rules of national law, however framed, without being deprived
of its character as Community law and without the legal basis of the Community itself being
called in question […]
- C-11/70 Internationale Handelgesellschaft: “However, an examination should be made as to
whether or not any analogous guarantee inherent in Community law has been disregarded. In
fact, respect for fundamental rights forms an integral part of the general principles of law
protected by the Court of Justice. The protection of such rights, whilst inspired by the
constitutional traditions common to the Member States, must be ensured within the framework
of the structure and objectives of the Community”

The general principles

- General principles are unwritten  where would the ECJ “find” these principles?
o Common constitutional traditions: “inspired by the constitutional traditions common
to the Member States” (again Internationale Handelgesellschaft)
o International treaties: “[…] the court is bound to draw inspiration from the
constitutional traditions common to the member states […] Similarly, international
treaties for the protection of human rights, on which the member states have
collaborated or of which they are signatories, can supply guidelines which should be
followed within the framework of community law (C-4/73 Nold)
- C-36/75 Rutili: “These limitations placed on the powers of Member States in respect of control
of aliens are a specific manifestation of the more general principle enshrined in Articles 8, 9, 10
and 11 of the Convention for the Protection of Human Rights and Fundamental Freedoms,
signed in Rome on 4 November 1950 and ratified by all the Member States”

Political greenlight
- Several institutions reacted positively to such change in the ECJ’s approach:
o European institutions: Commission Report (1975), Joint Declaration of the European
Parliament, Council, and Commission to support the new case law (1977)

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o Member States: Copenhagen declaration (1978)  respect for rights as a membership

condition (today in article 49 TEU)
- The judicial construction of GPs on rights enhanced the legitimacy of EU (EC) law and made
the principle of primacy easier to accept for national authorities

From Maastricht to Amsterdam

- Maastricht Treaty (1992): formal recognition of fundamental rights in article F(2): “The Union
shall respect fundamental rights, as guaranteed by the European Convention for the Protection
of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as
they result from the constitutional traditions common to the Member States, as general
principles of Community law”  article F(2) were excluded from the jurisdiction of the Court
(as it was not mentioned in article L)  but the ECJ could still use the GPs
- Amsterdam Treaty (1997): codification of the Copenhagen criteria of 1993, expansion of the
ECJ’s jurisdiction to rights (limited practical difference), article F.1 (currently article 2 TEU),
suspension clause (today article 7 TEU)

From Nice to Lisbon

- Nice Treaty (1999): proclamation of the Charter of Fundamental Rights of the EU (not
binding) and addition of the condition of mere “risk” to the suspension clause
- Lisbon Treaty (2009):
o binding value of the Charter, which shall not expand the EU’s competences (article 6.1)
o legal basis for the Union to access the ECHR (article 6.2)
o confirmation of the general principles (article 6.3)
o Article 2 TEU, article 7 TEU, article 49 TEU

The current framework

- There are three main sources of EU fundamental rights today:
o The Charter of Fundamental Rights of the EU (CFR)  article 6(1) TEU
o The European Convention on Human Rights (ECHR)  article 6(2) TEU
o The general principles (GPs)  article 6(3) TEU
- Often these rights are then specified in Treaty provisions (primary law) and, most notably, in
rights-related legislative instruments

The Charter
- Preamble
o Title I – Dignity
o Title II – Freedoms
o Title III – Equality
o Title IV – Solidarity
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o Title V – Citizen’s Rights

o Title VI – Justice
o Title VII – General Provisions
- Explanations (not binding, but must be given “due regard” in interpreting the Charter)

Title VII
- Title VII clarifies the scope of application of the Charter and the principles governing its
interpretation  horizontal provisions
o Article 51  scope of application
o Article 52  Limitation clause, connection to other sources
o Article 53  level of protection
o Article 54  prohibition of abuse of rights

Scope of application
- Scope of application of EU rights (general principles and later the Charter)  always binding
on the EU institutions/bodies  legislative and executive action
- Controlling the new bureaucratic power in Brussels, reassuring national courts
- What about the Member States?
- Initially, EU rights as general principles were not binding for the Member States, but they
were selectively extended by the Court of Justice
o Implementation - C-5/88 Wachauf: rationale  ensuring that supranational law does
not escape legal constraints by delegating its application to the States
o Derogation - C-260/89 ERT: rationale  unclear, perhaps the need to limit the damage
that derogation from Union law may inflict on EU rights
- Article 51(1)  “The provisions of this Charter are addressed to the institutions and bodies of
the Union with due regard for the principle of subsidiarity and to the Member States only when
they are implementing Union law. They shall therefore respect the rights, observe the principles
and promote the application thereof in accordance with their respective powers”
- The Charter is always binding for the EU actors; it is binding for the Member States only when
“implementing” EU law  does this exclude “derogation”?
- Landmark C-617/10 Fransson: “[…] situations cannot exist which are covered in that way by
European Union law without those fundamental rights being applicable. The applicability of
European Union law entails applicability of the fundamental rights guaranteed by the Charter”
o Article 51(1) CFR refers to both implementation and derogation
o Functional and objective approach: every national measure having de facto the role of
fulfilling an obligation under the scope of EU law is subject to the Charter (functional)
and the intent of the national authorities does not matter (objective)

The Charter’s “backstop”

- Article 51(2): “This Charter does not establish any new power or task for the Community or the
Union, or modify powers and tasks defined by the Treaties”

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- Fear that EU rights would be read as legal bases to further expand the EU’s competences  a
backstop against potential competence creep

The Limitation Clause

- Article 52(1): “Any limitation on the exercise of the rights and freedoms recognised by this
Charter must be provided for by law and respect the essence of those rights and freedoms.
Subject to the principle of proportionality, limitations may be made only if they are necessary
and genuinely meet objectives of general interest recognised by the Union or the need to protect
the rights and freedoms of others”
- Translates into a proportionality assessment + “essence” test (e.g., Schrems I). In practice, the
essence test is context-dependent, thus unworkable

Level of protection
- Article 53  the level of protection ensured by the Charter shall not entail a lowering of the
standards ensured by the European Convention on Human Rights and national constitutions
o C-399/11, Melloni  True in cases of partial harmonization, but in cases of full
harmonization, the uniformity and effectiveness of EU law shall be guaranteed
o C-107/23 PPU, Lin  If the prejudice for the uniformity and effectiveness of EU law is
too high, even in cases of partial harmonization EU law prevails

General Principles after Lisbon

- The general principles remained the main standards on rights in the EU between 2000 and 2009
- GPs did not disappear from EU law after Lisbon  article 6(3) TEU
- Residual role: applied to pre-Lisbon cases (disappeared in a few years) and “reserve” of
unwritten FRs

The “thickening” of EU rights

- As the scope of application of EU rights depends on the implementation of EU law (article
51.1, Fransson), the wider the rights-related competences and legislation, the larger application
of EU rights  waves of rights-related legislation
o First wave (after Maastricht): Data Protection Directive, Racial Discrimination Directive,
Employment Equality Directive, Framework Decision on EAW, Citizenship Directive
o Second wave (after Lisbon): GDPR, DSA, migration pact(s)
- Rights related, not necessarily rights-enhancing

Political institutions and rights

- The political institutions have internal systems of FRs’ assessment during the legislative process
(effectiveness is often questioned):
o Commission: preliminary consultations, FR checklist, Explanatory Memorandum

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o European Parliament: internal procedures involving the LIBE committee or the whole
assembly (EP Rules of procedure, 39 and 144), check on the Commission’s impact
assessment, can ask for an opinion of the FRA
o Council: Working Party on Fundamental Rights, Citizens Rights and Free Movement of
Persons (FREMP)

The Fundamental Rights Agency

- Specialized agency created by Council’s Regulation in 2007, made of national representatives, 2
representatives of the Commission, and 1 of the Council of Europe for 5 years
- Each Member State shall nominate a government official as a national liaison officer  contact
point at the national level to collect useful information
- Advisory and research functions
o Issues thematic studies and surveys, opinions on legislative acts, post-legislative guidance
 advice can be asked by the Commission, EP, and the Council
o Publishes the extensive annual report
o Coordinates with the Council of Europe

The Ombudsman
- Appointed by the European Parliament for a legislative term as an independent body  can
only be dismissed by the ECJ upon EP’s request in case of serious inaction or misconduct. It is
assisted by a Secretariat
- Tasked with investigating cases of “maladministration”  EU body fails to observe a rule or
principle to which is bound (including FRs, e.g. access to documents)
- Can act ex officio or upon citizens’ or residents’ request (within 2 years of the date on which they
became aware of the problem)  easier to access than court and cheaper
- Usually looks for amicable solutions; if this fails, it may issue recommendations with specific
demands
- It also has the power to report to the EP, which may exercise its powers accordingly (e.g.,
revoking legislative delegation)

Article 7: political monitoring

- Article 7 TEU  political procedure to preserve the values of article 2 TEU (including FRs)
o Proposal from 1/3 of the MS, the EP or the Commission  the Council may determine
that there is clear risk of a serious breach of the values in article 2 TEU (special
majority of 4/5 of the Council + consent of the EP with 2/3 of votes cast, representing
its majority)
o Proposal from 1/3 of the MS or the Commission  EuCo by unanimity (+ EP consent)
determines the existence of a serious and persistent breach of the values  possible
suspension of the rights deriving from the Treaties  authorized by EuCo but
determined by the Council (by QMV)
- Article 269 TFEU  the procedure is object to review in front of the ECJ

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EU rights, national constitutional law and the ECHR

Conditional primacy
- Van Gend en Loos (direct effect doctrine, 1963) and Costa (primacy, 1964)  displacement of
national law in case of conflict and obligations directly on citizens  need to reassure national
courts
- Pressure from CCs of Germany and Italy
- Germany and Italy developed a model of conditional primacy  the primacy of EU law is
accepted, on the condition that the core of the national constitution is respected

Conditional primacy: Germany

- German Constitutional Court, Solange I (1974): “As long as the integration process has not
progressed so far that Community law receives a catalogue of fundamental rights decided on by
a parliament and of settled validity, which is adequate in comparison with the catalogue of
fundamental rights contained in the Basic Law, a reference by a court of the Federal Republic
of Germany to the Federal Constitutional Court in judicial review proceedings, following the
obtaining of a ruling of the European Court under Article 177 of the Treaty, is admissible and
necessary if the German court regards the rule of Community law which is relevant to its
decision as inapplicable in the interpretation given by the European Court, because and in so far
as it conflicts with one of the fundamental rights of the Basic Law”  Solange doctrine:
fundamental rights review

Conditional primacy: Italy

- Italian Constitutional Court, Frontini (1973): ““It is hardly necessary to add that by Article 11
of the Constitution limitations of sovereignty are allowed solely for the purpose of the ends
indicated therein, and it should therefore be excluded that such limitations of sovereignty,
concretely set out in the Rome Treaty, signed by countries whose systems are based on the
principle of the rule of law and guarantee the essential liberties of citizens, can nevertheless give
the organs of the EEC an unacceptable power to violate the fundamental principles of our
constitutional order or the inalienable rights of man. And it is obvious that if ever Article 189
[of the Treaty of Rome] had to be given such an aberrant interpretation, in such a case the
guarantee would always be assured that this Court would control the continuing compatibility
of the Treaty with the above-mentioned fundamental principles”  counter-limits doctrine

The ECJ: fixing the relationship

- The general principles of EU law on fundamental rights were developed to reassure the CCs of
Germany and Italy that EU law would not violate the core of their constitutions
o Principles common to the constitutional traditions of the Member States
o Principles in international charters ratified by all Member States (ECHR)
- Already binding

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A watchful peace
- GCC, Solange II (1986): “As long as the European Communities, in particular European
Court case law, generally ensure effective protection of fundamental rights as against the
sovereign powers of the Communities which is to be regarded as substantially similar to the
protection of fundamental rights required unconditionally by the Constitution, and in so far as
they generally safeguard the essential content of fundamental rights, the Federal Constitutional
Court will no longer exercise its jurisdiction to decide on the applicability of secondary
Community legislation cited as the legal basis for any acts of German courts or authorities
within the sovereign juris-diction of the Federal Republic of Germany, and it will no longer
review such legislation by the standard of the fundamental rights contained in the Basic Law;
references to the Court under Article 100 (1) Basic Law for those purpose are therefore
inadmissible”
- ICC, Granital (1984); FRAGD (1989): similar attitude

Conditional primacy and rights

- Respect for constitutional fundamental rights is thus one of the most typical conditions posited
by national courts (conditional primacy)
- Tense relations in the last years, especially after Melloni (often invoking constitutional identity):
o German Constitutional Court  EAW II: the Melloni doctrine cannot prevail over the
minimum guarantees required by the German identity
o Belgian Constitutional Court  judgment 62/2016: transfer of powers only within the
limits of what is specifically conferred and, in any case, respecting the constitutional
identity of Belgium
o Italian Constitutional Court  Taricco: ECJ’s interpretation of the limitation period in
criminal matters is incompatible with Italy’s identity, asks the ECJ to reconsider
o French State Council  La Quadrature du Net: collection and storing of personal data
for the purpose of public security upheld despite a more restrictive interpretation of the
ECJ
- Occasional protests against the harmonization required by EU rights, frequently to ensure a
higher level of protection (thus, against Melloni), but occasionally to lower it further (see La
Quadrature du Net)

Further developments
- Recent trend at the national level: direct use of the Charter as an internal constitutional norm
(Austria, Italy, and Germany)
o Full application (only CFR) and parallel application (CFR and national rights at the
same time)
- More frequent use of the preliminary reference mechanism by national constitutional courts
after Lisbon  66 cases between 1998 and today, but only 12 are pre-Lisbon

EU law and the ECHR

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- Two separate regimes  EU attempts to access the ECHR

- Opinion of the ECJ (Opinion 2/94): no legal basis was present in the Treaties allowing access
to the ECHR
- The Residual Competence clause (article 235 TCE, today 352 TFEU) was not an option either:
it was meant for “minor” adjustments of the system of competences, not major constitutional
changes

An event of constitutional significance

- Opinion 2/94: “Accession to the Convention would, however, entail a substantial change in
the present Community system for the protection of human rights in that it would entail the
entry of the Community into a distinct international institutional system as well as
integration of all the provisions of the Convention into the Community legal order. Such a
modification of the system for the protection of human rights in the Community, with equally
fundamental institutional implications for the Community and for the Member States, would be
of constitutional significance and would therefore be such as to go beyond the scope of Article
235. It could be brought about only by way of Treaty amendment”
- Access to the ECHR entails entry into a specific (alien) legal system  a) posits new obligations
on EU institutions and b) alters the balance between EU institutions and the Member States

Second attempt: opinion 2/13

- Article 6(2) TEU: “The Union shall accede to the European Convention for the Protection of
Human Rights and Fundamental Freedoms”  legal basis
- Negotiations and agreement in 2013
- Opinion 2/13  Full Court rejected again the EU’s accession to the Convention

Opinion 2/13: grounds

- Grounds to reject the draft agreement:
o Missing coordination between articles 53 of the ECHR and of the Charter  risk of
circumventing the ECJ’s interpretation of article 53 CFR (Melloni)
o Equivalent rights may be disciplined differently  some EU MSs may decide to check
on the others’ implementation of ECHR rights  violation of the EU principle of
mutual trust
o Protocol 16 to the ECHR: high national judges can ask for advisory opinions to the
ECtHR  EU is not a party, risk of circumventing the preliminary reference mechanism
o The draft agreement did not rule out the dispute resolution as in article 33 ECHR 
MSs could sue one another in front of the ECtHR despite the applicable law being EU
law  risk of circumventing article 344 TFEU (exclusive jurisdiction of the ECJ on
interpretation of EU law)
o The draft agreement established a co-respondent mechanism: in case of joint
responsibility, the two EU and the MSs will be joint respondents in front of the ECtHR,
but allowed the ECtHR to decide whether to admit the EU or its Member States as co-
respondents (a power to interpret the division of powers between EU and MS)
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o A prior involvement mechanism was established to ensure that the subsidiary role of the
ECHR is respected, but also that the internal interpretation of EU law remained to the
ECJ. However:
• The Agreement reserved to the ECtHR the power to check whether ECJ’s case
law on a certain topic existed (which would exclude the prior involvement)  a
power to interpret the case law of the ECJ
• The prior involvement of the ECJ did not also include interpretation of
secondary EU law (only validity of secondary law and interpretation of primary
law)
o The draft agreement allowed the ECtHR to “rule on the compatibility with the ECHR of
certain acts, actions or omissions performed in the context of the CFSP, and notably of
those whose legality the Court of Justice cannot, for want of jurisdiction, review in the
light of fundamental rights”
Opinion 2/13: “it’s the autonomy stupid!”
- Again, the ECJ noticed that an accession would mean a massive constitutional change in the
system of the Treaties
- Opinion 2/13 made several objections, but all directed at safeguarding the specific
characteristics of EU law from external interference  autonomy of EU law
- Opinion 2/13: EU law as a system with “its own constitutional framework and founding
principles”, as well as a “structured network of principles, rules and mutually interdependent
legal relations linking the EU and its Member States, and its Member States with each other”

A new hope?
- Opinion 2/13 does not prevent EU’s access to the ECHR indefinitely: if amendments are made,
access may be possible in the future
- Negotiations resumed in 2020 and a new Draft revised Agreement was published in March 2023
- A new Opinion of the ECJ is more than likely

EU Citizenship

EU citizenship
- The Maastricht Treaty created an EU citizenship for the first time  dependent on being a
national of one of the Member States (derivative character) and added on top of the existing
citizenship (additional character)
- Confirmed in the Lisbon Treaty (articles 20-25 TFEU), in the Charter (articles 39-46), and in
legislation (Citizenship Directive)
- EU Citizenship rights can be divided into two main groups: (a) rights to free movement and
residence; (b) political rights

General framework

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- Article 20 TFEU:
o (1) Establishment  EU citizenship derives automatically from national citizenship,
additional character
o (2) Rights  right to reside and move freely, to vote for EP and municipal elections, to
ask for diplomatic protection, to petition EU institutions and bodies
o (3) Conditions  conditions for the exercise of these rights in legislation

Right to free movement and residence: article 21 TFEU

- Article 21 TFEU:
o (1): “Every citizen of the Union shall have the right to move and reside freely within the
territory of the Member States, subject to the limitations and conditions laid down in the
Treaties and by the measures adopted to give them effect”
o Conditions are established via ordinary procedure (2), but harmonization of social
security is subject to Council unanimity and EP consultation (3)

Secondary law: the Citizenship Directive

- Previous legislation on free movement and residence existed (Directive 90/336, 90/365,
90/364, “Residence Directives”), but was consolidated in Directive 2004/38, so called
“Citizenship Directive”
- Five substantive chapters:
o Chapter II on the rights of exit and entry (articles 4–5)
o Chapter III on the rights of residence (articles 6–15).
o Chapter IV on the right of permanent residence (articles 16–21).
o Chapter V on provisions that are common to the right of (temporary) residence and
permanent residence (articles 22–6)

Residency rights in the Citizenship Directive

- Three classes of citizens (article 7):
o Class 1: generalized right to residence in the entire Union for all EU citizens up to 3
months
o Class 2: right to residence (from 3 months to 5 years) for several categories of EU
citizens: workers or self-employed, all EU citizens (provided that they have sufficient
financial resources not to become a burden for the host State and have healthcare
insurance), students enrolled at a recognized educational establishment, provided that
they declare healthcare insurance and have sufficient resources
o Class 3: permanent residence to all EU citizens after 5 years of continuous residence,
independently of the economic status
- Residency rights extend to family members of EU nationals, even if they are third-country
nationals (TDC)  spouse or registered partner, descendants under 21, dependant family
members

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Equal treatment
- According to article 24 of the Citizenship Directive, EU residents and their families shall be
treated on par with nationals of the host Member State
- Therefore: equal treatment, including equal access to social benefits for all EU citizens
- Exception is granted for social assistance: a) within the first three months; b) for aid for studies
like loans before the right to permanent residence is acquired (except for workers and self-
employed)
- In Dano (C-333/13) the Court of Justice clarified that “residence” means lawful residence, as
in article 7 of the Directive  preventing “ welfare tourism”

Restrictive measures
- Legitimate public interests may justify derogations from the ordinary regime on citizenship 
on grounds of public policy, public security or public health (article 45 TFEU and article 27 of
the Citizenship Directive)
o Public policy or public security  personal conduct of the person(s)  the conduct
‘must represent a genuine, present and sufficiently serious threat affecting one of the
fundamental interests of society’ (e.g., see C-165/14 Rendon Marin)
o Limitations based on public health  diseases with epidemic potential
- According to article 28 of the Citizenship Directive, permanent residents cannot be expelled
from the host State, except on serious grounds of public policy or public security (enhanced
protection) and the host State can expel 10-years long residents only on imperative grounds of
public security (ultra-enhanced protection)
- All limitations must be proportionate

An exceptional regime: the public service

- Free movement of EU citizens for reasons of work finds a limit in employment for the public
service, see articles 45(4) and 51 TFEU  rationale: working in the public service requires a
special relationship of allegiance to the institutions of the State
- Does this include only cases of employment in formally public institutions (institutional
definition) or in all bodies exercising public functions (functional definition)? The ECJ opted
for the latter
- This exception applies to access to public service only, not to treatment  once a non-national
has been admitted to the public service, s/he must be treated equally to nationals

Direct effect of the EU Citizenship

- Treaty provisions create an autonomous and directly effective right to move and reside in a
Member State
- C-413/99 Baumbast: “Moreover, the Treaty on European Union does not require that citizens
of the Union pursue a professional or trade activity […] As regards, in particular, the right to
reside within the territory of the Member States under Article 18(1) EC, that right is
conferred directly on every citizen of the Union by a clear and precise provision of the EC

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Treaty. Purely as a national of a Member State, and consequently a citizen of the Union, Mr
Baumbast therefore has the right to rely on Article 18(1) EC” (paras. 83-84)
- C-200/02 Chen: “As regards the right to reside in the territory of the Member States provided
for in Article 18(1) EC [Art 21(1) TFEU], it must be observed that that right is granted directly
to every citizen of the Union by a clear and precise provision of the Treaty. Purely as a national
of a Member State, and therefore as a citizen of the Union, Catherine is entitled to rely on
Article 18(1) EC. That right of citizens of the Union to reside in another Member State is
recognised subject to the limitations and conditions imposed by the Treaty and by the measures
adopted to give it effect” (para. 26)
- Citizenship detaches the right to move and reside from purely economic movements
“Passported” rights; moving social rights
- Welfare benefits such as pension treatments can be brought from one State to another thanks to
Regulation 883/2004  a crucial aspect of free movement
o Sharing of data between institutions of different countries
o Inter-state legal value of the documents
o Aggregating periods of insurance, employment, self-employment or residence completed
under the laws of an EU country
o Calculation of benefits and contributions

Purely internal situations

- Can the freedom of movement and residence based on citizenship be invoked in “wholly
internal situations” (claims made by EU nationals against their own Member State)?
- In specific circumstances, the answer is positive e.g., disincentives to free movement on its own
nationals, dual nationality, or family reunification

Garcia Avello
- C-148/02 Garcia Avello: Belgian-Spanish citizens were not allowed to add the surname of the
mother by Belgian law (recognized instead under Spanish law)
- ECJ: the refusal to allow for a change in surname as it would be determined by Spanish law
violates the principle of non-discrimination on the basis of nationality and the freedom of
movement and residence
- “The citizenship of the Union […] is not, however, intended to extend the scope ratione materiae
of the Treaty also to internal situations which have no link with Community law. Such a link
with Community law does, however, exist in regard to persons in a situation such as that of the
children of Mr Garcia Avello, who are nationals of one Member State lawfully resident in the
territory of another Member State”
Zambrano
- C-34/09 Ruiz Zambrano: Colombian parents of Belgian children were refused the permit to
reside in Belgium  this would force the children to leave the EU
- The Court asserted that expelling them from Belgium would potentially infringe their rights of
EU citizens. The purely internal measure rejecting their parents’ application would result in de
facto deprivation of EU rights: “Article 20 Treaty on the Functioning of the EU precludes
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national measures which have the effect of depriving citizens of the Union of the genuine
enjoyment of the substance of the rights conferred by virtue of their status as citizens of the
Union” (para. 42)

After Zambrano
- The ECJ drew back from the wider implications of Zambrano in other cases
- C-434/09 McCarthy and C-256/11 Dereci: denying a derivative right to residence to non-EU
spouses of EU citizens  a relation of dependency is required  how so?
- C-82/16 KA: a refusal to grant a permit to a third-country national relative of an EU citizen
would violate the substance of EU citizenship’s rights in purely internal situations only if it
forced the EU citizen to leave the Union (as in Zambrano)  a relation of dependence is
required
- Dependence of adults (para. 65): exceptional, only in cases of impossible separation of the two
(impossible, not merely inconvenient)
- Dependence of minors (paras. 70-72): to establish considering the age, emotional maturity, risks
deriving from separation

Recognition of the family status: Coman

- Recognition of same-sex marriage contracted in one MS in another MS  derivative right of a
family member
- C-673/16 Coman: “…the refusal by the authorities of a Member State to recognise, for the
sole purpose of granting a derived right of residence to a third-country national, the marriage of
that national to a Union citizen of the same sex, concluded, during the period of their genuine
residence in another Member State, in accordance with the law of that State, may interfere with
the exercise of the right conferred on that citizen by Article 21(1) TFEU to move and reside
freely in the territory of the Member States” (para. 40)
- C-673/16 Coman: “[…] Such recognition does not require that Member State to provide, in its
national law, for the institution of marriage between persons of the same sex. It is confined to
the obligation to recognise such marriages, concluded in another Member State in accordance
with the law of that state, for the sole purpose of enabling such persons to exercise the rights
they enjoy under EU law. Accordingly, an obligation to recognise such marriages for the sole
purpose of granting a derived right of residence to a third-country national does not undermine
the national identity or pose a threat to the public policy of the Member State concerned”
(paras. 45-46)

Political rights
- Article 22 TFEU:
o Elections for the European Parliament: EU citizens have the right to vote (active
electorate) and stand for elections (passive electorate) in the MS where they reside under
same conditions as nationals
o Municipal elections: EU citizens have the right to vote and stand for elections in the MS
where they reside under same conditions as nationals

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Other political rights

- Article 23 TFEU: right to diplomatic protection for EU citizens from any other Member State
in third countries where the country of their own nationality has no diplomatic authority
(implemented in Directive 2015/637)
- Article 24 TFEU: EU citizens’ legislative proposal  one million Europeans may invite the
Commission to bring forth legislative initiatives
- Article 24 TFEU: right to petition the European Parliament, to apply to the Ombudsman, to
address EU institutions in one of the official languages and to have an answer in that language
- Article 25 TFEU: duty on the Commission to report every three years on citizens’ rights and
power of the Council (unanimously) and the EP to adopt provision to strengthen EU citizenship
or add rights

Introduction to Judicial protection and the Infringement Proceedings

The EU System of Judicial Protection
- Series of mechanisms to ensure the judicial application of EU law
- Several aims:
o Ensure the respect of EU law by the Member States and by the EU actors  judicial
arbitration of inter-institutional disputes
o Ensure the guarantee of individual rights deriving from EU law  individual protection
o Solve controversies on the interpretation of EU law  function of legal cohesion

Actions: EU level
- Actions in front of the Court of Justice of the EU
o Infringement proceedings  258-260 TFEU (against the MS)
o Actions for annulment, failure to act, damages  263, 265, 268/340.2 TFEU (against
the EU)
o Preliminary rulings  267 TFEU
o Minor actions

Actions: national level

- Principles coordinating EU and national procedural law  procedural autonomy/equivalence
and effectiveness
- Force of res iudicata
- Interim measures
- State liability

Infringement proceedings

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- Action proposed to ascertain and sanction the violation of EU law by one or more of the
Member States
- Aimed at ensuring the effectiveness of EU law  function of enforcement
- The interest to ascertain the violation persists even if the MS changes its course of action while
the proceeding is ongoing

Notion of infringement
- A failure to fulfil obligations under the Treaties: primary, secondary and tertiary EU law,
violation of loyal cooperation under 4(3) TEU
- An action or omission
- An exercise of regulatory powers, an administrative practice, a rule established by case law
- Central or peripheral
- Regardless of frequency, scale or adverse effects
- Regardless of internal constitutional justification (force majeure is accepted as justification)

Applicants
- The European Commission under Article 258 TFEU
o The Commission acts in the general interest of the EU and does not have to show the
existence of a specific interest in bringing the proceedings
o The Commission enjoys a wide margin of discretion  it has no obligation to act
- A Member State under Article 259 TFEU
o MS sends a complaint to the Commission. If the Commission does not deliver a
reasoned opinion within 3 months, the Member State can bring the case to the Court

Defendant
- The action for infringement is brough against a Member State of the EU
o A conduct is attributable to the Member State even when the action belongs to
independent bodies or institutions
o It includes the legislative authority but also the executive and administrative branches
and the national courts, as well as private actors controlled by public authorities

Procedure
- Pre-litigation stage:
o After a complaint or at its own initiative, the Commission initiates investigations against
the Member State
o The Commission can start informal discussions with the State concerned, for instance, to
obtain clarifications about legal and factual elements
- Administrative phase:

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o Letter of formal notice: summary of the complaints to determine the subject matter of
the dispute and to provide the Member State with the necessary information to prepare
its defense (by submitting observations)
o if the State’s reply is not satisfactory 
o Reasoned opinion: document which describes the infringement in more detail and
prescribes the time by which the Member State must put an end to it (usually 2 months)
o Essential procedural requirements for the legality of the procedure
- Judicial phase:
o The Commission has full discretion to decide if and when to bring the matter before the
Court
o Commission has the burden of proof:
o The arguments invoked must be the same as those invoked in the previous stages
o The Court rules on the existence of an infringement. It cannot annul the national act,
grant damages or address orders to the State concerned

Consequences of the rulings

- The infringement is ascertained by the Court
- The State is responsible in its entirety
- Duty to comply with the ruling by taking “all necessary measures” (see Art. 260(1) TFEU)
- Liability of the Member State  Francovich and Brasserie du Pecheur

Article 260(2) TFEU

- Introduced by the Treaty of Maastricht  In case of failure to comply with the judgment
declaring the infringement
- Second procedure to obtain a declaration that the Member State has failed to comply and to
impose sanctions (reasoned opinion can be skipped)
- Financial Sanctions (can be combined)
o Lump sum: “punitive” function
o Penalty payment: “preventive” function

Exempli gratia
- Hungary’s repeated violations of the rights of asylum seekers  accepting asylum applications
only if filed in special (and severely restricted) transit zones, by illegally detaining migrants into
such zones, by expelling migrants without observing the procedures and safeguards laid down
under EU law
- Violation of the Procedures Directive (Directive 2013/32), the Reception Directive (Directive
2013/33) and the Qualification Directive (Directive 2008/115) declared in C-808/18 -
Commission v Hungary (Accueil des demandeurs de protection internationale)
ECLI:EU:C:2020:1029
- Hungary still does not comply  C-123/22 Commission v. Hungary ECLI:EU:C:2024:493 
lump sum of 200 million euros plus a penalty payment of 1 million per day

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Article 260(3) TFEU

- In case of failure to notify measures to transpose a directive
- Introduced by the Treaty of Lisbon
- “Enhanced” 258 TFEU  “first” procedure in which the Commission can ask for both the
declaration of infringement and the imposition of sanctions at the same time  accelerated
mechanism to ensure the transposition

Strategic litigation
- Most actions are brought forth by the Commission, applications are rarely lodged by the States
- Commission as the “guardian of the Treaties”
- In recent years, a “strategic” approach to the infringement proceedings  decline in the number
of actions to focus on specific priorities: missing/incorrect implementation of directives,
missing application of ECJ’s judgments, financial interests of the EU, rule of law

Actions against the EU

Introduction
- Actions proposed against the EU  institutions and other actors
o Acts  annulment action (263 TFEU), plea of illegality (277 TFEU)
o Omissions  failure to act (265 TFEU)
o Extracontractual liability  (268 and 340.2 TFEU)
- Actions under the jurisdiction of the General Court when introduced by legal and natural
persons  Court of Justice has appellate jurisdiction

Annulment action
- Article 263(1-2) TFEU
o The Court of Justice of the European Union shall review the legality of legislative acts,
of acts of the Council, of the Commission and of the European Central Bank, other
than recommendations and opinions, and of acts of the European Parliament and of
the European Council intended to produce legal effects vis-à-vis third parties. It shall
also review the legality of acts of bodies, offices or agencies of the Union intended to
produce legal effects vis-à-vis third parties.
o It shall for this purpose have jurisdiction in actions brought by a Member State, the
European Parliament, the Council or the Commission on grounds of lack of
competence, infringement of an essential procedural requirement, infringement of the
Treaties or of any rule of law relating to their application, or misuse of powers.
- Article 263(3-4) TFEU
o The Court shall have jurisdiction under the same conditions in actions brought by the
Court of Auditors, by the European Central Bank and by the Committee of the
Regions for the purpose of protecting their prerogatives.
o Any natural or legal person may, under the conditions laid down in the first and second
paragraphs, institute proceedings against an act addressed to that person or which is of
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direct and individual concern to them, and against a regulatory act which is of direct
concern to them and does not entail implementing measures.
- Action aimed at removing an illegal act from the legal system  judicial review of EU law
- It Has the consequence of voiding EU law
- Issues to address:
o What acts can be reviewed?  Scope of review
o Why?  Grounds of review
o Who can ask for a review?  Standing (three classes of applicants)

Notion of legal act (1)

- What is a “legal act”?
- The final instrument through which an institution/body of the EU authoritatively affects the
legal position of a third party
- Joined Cases 23, 24 and 52/63 Henricot: “Measure […] intended to produce legal effects and
constituting the culmination of procedure […] whereby the High Authority gives its final
ruling in a form from which its nature can be identified”
- Which acts are reviewable?  Article 263(1) TFEU
o Legislative acts  see article 289 TFEU
o Executive acts of the Council, Commission, ECB
o Acts of EP and EuCo having effects on third parties
o Acts of other EU bodies having effects on third parties
- Merely internal or preparatory acts, recommendations and opinions are excluded
- Limits on CFSP and AFSJ  see Articles 275 and 276 TFEU

Grounds of review (2)

- What reasons justify the annulment?  grounds of review
o Lack of competence
• Ensuring that the competent authority adopted the act
• Act adopted by the wrong institution  appropriating the powers of
another institution/body (loyal cooperation at 13.2 TEU)
• Act beyond the powers of the EU (ultra vires)
• Delegation of power under article 290 TFEU
• It can be established motu proprio by the Court
o Infringement of essential procedural requirements
• Fatal procedural irregularities  essential requirements
• “Institutional” procedural requirements: e.g., opinions, consent
• Internal procedural rules (e.g., QMV rather than unanimity in Council)
• Legal basis: appropriate competence, justification
• Example of inessential requirement: act adopted under a materially “wrong”
legal basis which still envisages the same procedure
o Misuse of powers (détournement de pouvoir)
• Deriving from French administrative law: détournement de pouvoir
• Prohibition on pursuing a different objective from the one underpinning a
specific legal competence
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•C-156/93 Parliament v. Commission: “The adoption by a Community institution

of a measure with the exclusive or main purpose of achieving an end other than
that stated or evading a procedure specifically prescribed by the Treaty for
dealing with the circumstances of the case”
• Emphasis on the motives
o Infringement of the Treaties or any rule of law relating to their application
• Any inconsistency between the legal act and a superior legal norm
• Material rather than formal inconsistency
• It includes the Treaties, the general principles of EU law, the Charter,
international agreements, interinstitutional agreements, Comitology Regulation,
delegating acts
• Emphasis on the principle of proportionality
• Residual notion, applicable when more specific grounds of review are not
applicable

Standing (3)
- Article 263(2) TFEU  three categories of applicants
o Privileged applicants and Semi-privileged applicants
• Institutional actors with privileged/semi-privileged standing
• Privileged applicants  Member States, European Parliament, Council,
Commission: they are affected ex officio by any EU act, thus they always
have standing
• Semi-privileged  Court of Auditors, ECB, Committee of the Regions:
may solely bring proceedings for the “purpose of protecting their
prerogatives” (e.g., right to be consulted)
o Non-privileged applicants
• Pre-Lisbon: the Treaty of Rome restricted the standing of non-privileged
applicants to (i.) decisions addressed to the applicant, (ii.) decisions addressed to
another person(s), or (iii.) decisions “in the form of a regulation” + they had to be
of “direct and individual concern”  this concern could be presumed for i. but
not also for ii. and iii.  burden of proof on the applicant for all but directly
addressed decisions
• The ECJ rewrote this clause in its case law  all legal instruments, legislative or
administrative, in any legal form, as long as of direct and individual concern
(e.g., C-294/83 Les Verts; C-309/89 Codorniu)
• Problem what does “direct and individual concern” mean?
• Direct concern  no intermediate and discretionary acts of
implementation, it affects the individual immediately
• Individual concern  attributes peculiar to the applicants which
differentiate them from all other persons (C-25/62 Plaumann test)
• Very restrictive standing, calls for reform
• The nature of “regulatory acts”  surely includes acts of abstract and general
application, but does this also include legislation?
• ECJ  “the meaning of ‘regulatory act’ for the purposes of the fourth paragraph
of article 263 TFEU must be understood as covering all acts of general

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application apart from legislative acts” (T-18/10 Inuit I, affirmed in C-583/11) 

only non-legislative general acts
• Consequence: legislative acts can be challenged only if the applicants prove a
direct and individual concern

Procedures and effects

- Application to be lodged within 60 days of the moment the measure was published/notified +
10 days (article 263.6 TFEU)
- The annulment has erga omnes and ex tunc effects, see article 264(1) TFEU  removes the act
with retroactive effects (but the Court can identify which effects of the act must be kept in place,
see article 264.2 TFEU)
- Severability  partial annulment is possible
- Interim measures are possible: the measures remain applicable, but the Court may provisionally
suspend them

The Plea of Illegality

- Indirect review of EU measures is possible ex article 277 TFEU: “Notwithstanding the expiry
of the period laid down in Article 263, sixth paragraph, any party may, in proceedings in which
an act of general application adopted by an institution, body, office or agency of the Union is at
issue, plead the grounds specified in Article 263, second paragraph, in order to invoke before the
Court of Justice of the European Union the inapplicability of that act”
- Collateral review  in proceedings concerning a related act, the applicant can invoke the
illegality of the act of “general application”
- Standing is easier + the time limits of Article 263 TFEU are bypassed

Failure to act
- Action brought by the Member States, the EU institutions, and individuals against other EU
institutions which were under an obligation to act under EU law and failed to do so  failure
to act “in infringement of the Treaties” (article 265 TFEU)
o Applicants: Member States, EU institutions, natural or legal persons (for acts different
from recommendations and opinions)
o Defendants: EP, Council, Commission, EuCo, ECB, “other bodies, offices and agencies
of the EU” which failed to act
- The action cannot be brought against the Court of Auditors and Court of Justice

Procedure
- Administrative stage:
o The applicant must call the EU institution/body to act  term of two months to comply
- Judicial stage:
o If the EU institution/body has failed to act, the applicant can bring the case to Court
o The institution shall be required to take the appropriate measures  article 266 TFEU
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Scope of action
- Inactions with external effects can be challenged  due “acts” in the sense of article 263 TFEU
o C-377/87 Parliament v. Council (Comitology)  also preparatory works
- Action against the “silent” behaviour of an institution  if explicit denial, article 263 TFEU
- There must be an obligation to act  discretionary choices cannot be challenged
- The act must be specific and individual  general policies cannot be “due”

Damages Actions
- Extracontractual damages caused by the EU (legislature/executive)  article 268 TFEU 
article 340(2) TFEU: “In the case of non-contractual liability, the Union shall, in accordance
with the general principles common to the laws of the Member States, make good any
damage caused by its institutions or by its servants in the performance of their duties”
- Action to compensate the damages caused by the EU institutions or by EU civil servants while
performing their duties

Procedure
- Applicants: Member States, EU actors, natural and legal persons
- Defendants: EU actors (with the exception of the ECB) and their servants (represented by the
institution)
- The action used to be dependent on the annulment of an EU act (article 263 TFEU)  see
Plaumann
- Later, it has been detached and can now be proposed independently (C-4/69 Luttacke)  in
practice, they are often proposed together
- Must be brought within 5 years of the deed/omission

Substantive conditions
- Subject matter  (official) actions or omissions which caused damages
- Conditions for awarding compensation: illicit behavior; sufficiently serious breach of a rule of
law; existence of damages; causal relation (C-352/98 Bergaderm)
- Legislative acts can generate responsibility as well

Preliminary reference procedure

The keystone of the system
- Opinion 2/13: “[T]he judicial system as thus conceived has as its keystone the preliminary
ruling procedure provided for in Article 267 TFEU, which, by setting up a dialogue between
one court and another, specifically between the Court of Justice and the courts and tribunals of
the Member States, has the object of securing uniform interpretation of EU law, thereby

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serving to ensure its consistency, its full effect and its autonomy as well as, ultimately, the
particular nature of the law established by the Treaties”
- Procedure to ensure the primacy, unity and effectiveness of EU law via a dialogue between
national courts and the Court of Justice,
- Majority of the cases decided every year (about ¾)

Article 267 TFEU

1. 1. The Court of Justice of the European Union shall have jurisdiction to give preliminary
rulings concerning:
a) the interpretation of the Treaties;
b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the
Union;
2. Where such a question is raised before any court or tribunal of a Member State, that court or
tribunal may, if it considers that a decision on the question is necessary to enable it to give
judgment, request the Court to give a ruling thereon.
3. Where any such question is raised in a case pending before a court or tribunal of a Member
State against whose decisions there is no judicial remedy under national law, that court or
tribunal shall bring the matter before the Court.

Reference
- When doubts concerning the interpretation or validity of EU law arise, national courts (also
known as the “a quo judge” or “referring judge”) may or shall stay the proceedings and refer to
the Court of Justice of the EU
- Upon request of the parties or motu proprio
- The proceedings will start over when the answer (preliminary ruling) has been delivered
- Referring courts often formulate questions (and at times suggest answers), the Court at times re-
formulates the question

Jurisdiction of the Court of Justice

- It covers the entirety of EU law  the Court of Justice can state on every norm of primary,
secondary, tertiary law, and beyond. Even a memorandum of understanding (see C-258/14,
Florescu)
- The Court of Justice can only interpret EU law, not also national law
o Interpretation  explains the meaning of EU law. Binding on the referring court only,
but de facto of general effect
o Validity  enforces the hierarchy of EU sources (usually secondary law vis-à-vis
primary law). Erga omnes effects
- Interpretation rather than application  the latter is up to the referring judge, but the Court
often gives detailed information

Examples
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- Reference on interpretation: C-430/21 RS

- Reference on validity: Joined Cases C-293/12 and C-594/12 Digital Ireland
- Order of inadmissibility: C-32/20

Adjudicating on national law?

- C-350/20 OD: “Article 12(1)(e) of Directive 2011/98/EU of the European Parliament and of
the Council of 13 December 2011 on a single application procedure for a single permit for third-
country nationals to reside and work in the territory of a Member State and on a common set
of rights for third-country workers legally residing in a Member State must be interpreted as
precluding national legislation which excludes the third-country nationals referred to in
Article 3(1)(b) and (c) of that directive from entitlement to a childbirth allowance and a
maternity allowance provided for by that legislation”
- ECJ does not directly adjudicate on national law, only refers to abstractly incompatible
interpretations

Reformulating the question

- C-699/21 EDL: “As a preliminary point, the Court notes that, even if, formally, the referring
court has limited its question, which concerns Framework Decision 2002/584, to the
interpretation of Article 1(3) of that framework decision in isolation, that does not, however,
prevent the Court from providing the referring court with all the elements of interpretation
of EU law which may be of assistance in adjudicating in the case pending before it, whether
or not the referring court has specifically referred to them in the wording of its questions (see, to
that effect, judgments of 12 December 1990, SARPP, C-241/89, EU:C:1990:459, paragraph 8,
and of 5 June 2018, Coman and Others, C-673/16, EU:C:2018:385, paragraph 22)”

Reform of 2024
- Amendment to the Statute of the CJEU of 1 September 2024
- Transfers jurisdiction in specific areas from the European Court of Justice (ECJ) to the General
Court (GC) starting 1 October 2024  end of the exclusive jurisdiction of the Court of Justice
- Involves six areas, covering ~20% of preliminary reference cases: VAT, customs, customs code,
tariff classification of goods, passengers compensation, greenhouse gas emissions
- The ECJ retains jurisdiction to give preliminary rulings on requests that raise independent
questions of interpretation of primary law, public international law, general principles of
EU law or the Charter of Fundamental Rights
- GC may refer to the ECJ if it deliberates that it lacks jurisdiction
- The ECJ may review preliminary rulings issued by the GC if the First Advocate General of
the Court of Justice recommends it, specifically when there is a significant risk to the unity or
consistency of EU law  within 30 days

Procedural changes

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- The ECJ initially decides on the distribution of cases between the ECJ and GC  national
courts can keep referring to the ECJ
- GC will elect AGs among its members and special sections for preliminary rulings
- All preliminary rulings notified to EU Parliament, Council, and ECB, who may submit
observations (in addition to MS, Commission, and the adopting institution as before)
- Public disclosure of statements or observations of all parties involved (within a reasonable
period after the case has ended)

Article 267(4) TFEU

- If such a question is raised in a case pending before a court or tribunal of a Member State with
regard to a person in custody, the Court of Justice of the European Union shall act with the
minimum of delay

- PPU: urgent preliminary procedure in the area of freedom, security and justice

Notion of “court”
- Article 267(2) TFEU  “any court or tribunal of a Member State”: what is a court?
o Judicial rather than administrative authorities
o Notion of “court or tribunal” in C-54/96 Dorsch: a. established by law; b. permanent; c.
compulsory jurisdiction; d. inter partes procedure; e. applies a “rule of law”; f.
independent  possible mismatch between EU and national definition of “court”
o National hierarchy does not matter  all courts at all levels may refer, ban on limitations
to the referring power  internal appeals against a decision to refer are banned (C-
210/06 Cartesio)

Notion of “necessity”
- “Necessary” to the decision of the controversy, preliminary to the legal solution of the case,
BUT:
- C-244/80 Foglia v. Novello: “The duty assigned to the Court by Article [267] is not that of
delivering advisory opinions on general or hypothetical questions but of assisting in the
administration of justice in the Member States. It accordingly does not have jurisdiction to reply
to questions of interpretation which are submitted to it within the framework of procedural
devices arranged by the parties in order to induce the Court to give its views on certain problems
of Community law which do not correspond to an objective requirement inherent in the
resolution of a dispute”  no hypothetical questions or advisory opinions

A Duty to Refer
- Article 267(2) TFEU  national courts may refer to the Court of Justice

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- Article 267(3) TFEU  high national courts must refer (courts “against whose decisions there
is no judicial remedy under national law”)  appealability as the criterion to single them out
- The Court of Justice has added two important qualifications
- First qualification: limits to the duty to refer  CILFIT doctrine (C-283/81 CILFIT)  even
high courts are not under a duty to refer when:
o The interpretation of EU law is “so obvious as to leave no scope for any reasonable
doubt […] to the courts of other Member States and to the ECJ” (acte clair doctrine)
o Already clarified (acte éclairé): “‘where previous decisions of the Court have already
dealt with the point of law in question, irrespective of the nature of the proceedings
which led to those decisions, even though the questions at issue are not strictly identical”
- C-561/19 Consorzio Italian Management (CIM II): “[…] it follows from the system
established by Article 267 TFEU, read in the light of the second paragraph of Article 47 of the
Charter, that, if a national court or tribunal against whose decisions there is no judicial remedy
[takes the view that the act is claire or éclairé] a statement of reasons for its decision must show
[how]”
- A duty to state reasons on why the highest court is not referring
- Second qualification: all national courts are under a duty to refer when dealing with questions
of validity rather than interpretation
- C-314/85 Foto-Frost: “[T]he main purpose of the powers accorded to the Court by Article
[267 TFEU] is to ensure that Community law is applied uniformly by national courts. That
requirement of uniformity is particularly imperative when the validity of a Community act is in
question. Divergences between courts in the Member States as to the validity of Community
acts would be liable to place in jeopardy the very unity of the Community legal order and
detract from the fundamental requirement of legal certainty”  need to ensure the consistency
and uniformity of EU law

Indirect review through preliminary rulings

- Under article 267 TFEU, the Court can also assess the validity of EU law
- In the context of a national procedure, the parties may ask to refer and question the validity of
measures of EU law  advantages
o At any time (even after the term of article 263.6 TFEU has expired)
o Anyone (beyond the limitations on standing)
- Disadvantages: national courts need to have jurisdiction and be willing to refer, you need a
case (breach EU law first).

Other competences of the Court

- “Minor” competencies of the Court of Justice of the EU:
o Civil service
• Article 270 TFEU: The Court of Justice of the European Union shall have
jurisdiction in any dispute between the Union and its servants within the limits
and under the conditions laid down in the Staff Regulations of Officials and the
Conditions of Employment of other servants of the Union
• Power to adjudicate on disputes between the EU institutions/bodies and its
servants (acts, omissions, liability)
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Includes all EU servants and all EU bodies, even participants to competitions

•
From 2005 to 2016, a specialized Civil Service Tribunal has existed, now
•
absorbed by the General Court
o Dismissal of the members of EU bodies
• The Court is competent to determine the dismissal of members of several EU
institutions/bodies: the Court itself, the Commission, the Court of Auditors, the
ECB’s Executive Board, the Ombudsman, the European Data Protection
Supervisor
• When they do not fulfil anymore the conditions to keep their office
• The Court decides in plenary session (Full Court)
o Contractual liability
• Article 272 TFEU: “The Court of Justice of the European Union shall have
jurisdiction to give judgment pursuant to any arbitration clause contained in a
contract concluded by or on behalf of the Union, whether that contract be
governed by public or private law”
• Arbitration clause for the “private” activity of the EU
• Jurisdiction is not mandatory
o Advisory function
• Article 216(11) TFEU: “A Member State, the European Parliament, the Council
or the Commission may obtain the opinion of the Court of Justice as to whether
an agreement envisaged is compatible with the Treaties. Where the opinion of the
Court is adverse, the agreement envisaged may not enter into force unless it is
amended or the Treaties are revised”
• Opinion but binding  if negative, the agreement must be amended accordingly
• It may concern both the EU’s competence to adopt a treaty and the substantive
compatibility with primary law

Article 334 TFEU

- Article 344 TFEU: “Member States undertake not to submit a dispute concerning the
interpretation or application of the Treaties to any method of settlement other than those
provided for therein”
- Opinion 2/13: “The Court has consistently held that an international agreement cannot affect
the allocation of powers fixed by the Treaties or, consequently, the autonomy of the EU legal
system, observance of which is ensured by the Court. That principle is notably enshrined in
Article 344 TFEU, according to which Member States undertake not to submit a dispute
concerning the interpretation or application of the Treaties to any method of settlement other
than those provided for therein”
- Exception for international agreements between the EU and third countries

Article 273 TFEU

- Article 273 TFEU: “The Court of Justice shall have jurisdiction in any dispute between
Member States which relates to the subject matter of the Treaties if the dispute is submitted to it
under a special agreement between the parties”
- Political controversies can be willingly submitted by the MS to the Court
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- E.g., solving controversies between the ESM Governing Board and individual MS

National actions as EU courts

- The EU relies for enforcement on the MS  administrations and courts must apply EU law:
national courts are thus EU courts as well
- Direct effect and primacy as the basis of the EU’s judicial federalism
- Voluntary cooperation

National procedure autonomy

- C-39/70 Norddeutsches: “Where national authorities are responsible for implementing a
Community regulation it must be recognized that in principle this implementation takes place
with due respect for the forms and procedures of national law”
- Principle of national procedural autonomy

Limits to national autonomy

- What if national procedural law does not provide sufficient remedies for enforcing EU law?
- States are not entirely free to decide how to enforce EU law  limits to national procedural
autonomy: principles of equivalence and effectiveness
o flow from loyal cooperation (today article 4.3 TEU)
- and
o from the need to ensure effective judicial protection. See article 19(1) TEU: “Member
States shall provide remedies sufficient to ensure effective legal protection in the fields
covered by Union law”

The Rewe formula

- C-33/76 Rewe: “[I]n the absence of Community rules on this subject, it is for the domestic
legal system of each Member State to designate the courts having jurisdiction and to determine
the procedural conditions governing actions at law intended to ensure the protection of the
rights which citizens have from the direct effect of Community law, it being understood that
such conditions cannot be less favourable than those relating to similar actions of a domestic
nature […]
- C-33/76 Rewe: “Where necessary, Articles [114 to 116] and [352] of the [TFEU] enable
appropriate measures to be taken to remedy differences between the provisions laid down by
law, regulation or administrative action in Member States if they are likely to distort or harm the
functioning of the Common Market.
- In the absence of such measures of harmonization the right conferred by Community law must
be exercised before the national courts in accordance with the conditions laid down by national
rules. The position would be different only if the conditions and time-limits made it impossible
in practice to exercise the rights which the national courts are obliged to protect.”

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Equivalence
- Under the principle of equivalence, national procedural remedies cannot be less favourable for
the enforcement of EU rights than they are for similar actions of a domestic nature
- Similar situations must be treated procedurally in a similar manner
- Only requires the formal extension of existing remedies to rights deriving from EU law 
(relatively) non-invasive

Non-discrimination
- C-392 and 422/04 Arcor: “in relation to the principle of equivalence, this requires that all
the rules applicable to appeals, including the prescribed time-limits, apply without
distinction to appeals on the ground of infringement of Community law and to appeals on
the ground of disregard of national law. It follows that, if the national rules applicable to
appeals impose an obligation to withdraw an administrative act that is unlawful under domestic
law, even though that act has become final, where to uphold that act would be ‘downright
intolerable’, the same obligation to withdraw must exist under equivalent conditions in the case
of an administrative act which does not comply with Community law”
- A high threshold under national law is acceptable if applied equally to EU and national law

Effectiveness
- According to the principle of effectiveness, national procedural law must ensure a substantive
content that guarantees the enforcement of EU rights
- It might require adjustments to national procedural law  (relatively) invasive
- Possible standards for national remedies: impossibility to enjoy the EU right (minimum), need
to ensure an adequate remedy (medium), full effectiveness of EU law (maximum)
- Coexisting and variously mixed up during three (broad) phases

First phase (mid-Seventies)

- Restraint  deference towards national procedural law
- As in Rewe, only request that national systems did not make the enforcement of EU law
practically impossible

Second phase (mid-Eighties)

- Intervention  requests to change national procedural law to ensure the full effectiveness of
EU law
- C-14/83 Von Colson: “[The] full implementation of the directive […] does entail that that
sanction be such as to guarantee real and effective judicial protection […] it must also have a
real deterrent effect”
- More restrictive of national procedural autonomy
- In the UK, no interim relief against the Crown (act of government)

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- C-213/89 Factortame: “It must be added that the full effectiveness of Community law would
be just as much impaired if a rule of national law could prevent a court seised of a dispute
governed by Community law from granting interim relief in order to ensure the full
effectiveness of the judgment to be given on the existence of the rights claimed under
Community law. It follows that a court which in those circumstances would grant interim relief,
if it were not for a rule of national law, is obliged to set aside that rule.

Third phase (mid-Nineties)

- Balance  national procedural law must not make the enforcement of rights deriving from EU
law excessively difficult
- Balancing the need of effectiveness of EU law and the general characteristics of national
procedural law
- Moderately restrictive of national procedural law
- C-312/93 Peterbroeck: “Each case which raises the question whether a national procedural
provision renders application of Community law impossible or excessively difficult must be
analysed by reference to the role of that provision in the procedure, its progress and its special
features, viewed as a whole, before the various national instances. In the light of that analysis
the basic principles of the domestic judicial system, such as protection of the rights of the
defence, the principle of legal certainty and the proper conduct of procedure, must, where
appropriate, be taken into consideration”
- Unpredictable assessment  case by case

A fourth Phase?
- In the context of the rule of law crisis in some EU Member States, the principle of effectiveness
has been strongly linked to the duty to ensure effective judicial protection under article 19(1)
TEU read in the light of article 47 of the Charter (effective remedy and to a fair trial)
- A fourth phase? See infra

A state liability
- Is it possible to claim compensation for State violation of EU law?
- A European remedy in national courts  State liability for breach of EU law
- Joined cases C-6 and 9/90 Francovich: “it is a principle of [EU] law that the Member States
are obliged to make good loss and damage caused to individuals by breaches of Community law
for which they can be held responsible”
- Conditions: i. EU law shall attribute individual rights; ii. rights must be identifiable from the
text (though not necessarily direct effect); iii. causal link between breach and damage

Brasserie du Pêncheur
- C-46/93 e C-48/93 Brasserie du Pêcheur fine-tuning Francovich:

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o Justification  duty of loyal cooperation (today in article 4.3 TEU) and general
principle in the constitutional traditions common to the Member States (article 340
TFEU used by analogy)
o Conditions of liability for the legislature: Francovich-test (individual rights from EU
law, identifiable, causal link) + sufficiently serious breach  Meaning: manifest and
grave misuse of legislative discretion. Missed transposition is always a sufficiently
serious breach (see C-178/04 Dillenkofer)

Strict liability
- Brasserie du Pêcheur applies to the legislative power (incorrect implementation of a directive),
while the test for the national executive or for the legislative when EU law leaves no discretion
is more stringent:
- C-118/00 Larsy: “a breach of Community law is sufficiently serious where a Member State, in
the exercise of its legislative powers, has manifestly and gravely disregarded the limits on its
powers […] here, at the time when it committed the infringement, the Member State in question
had only considerably reduced, or even no, discretion, the mere infringement of Community
law may be sufficient to establish the existence of a sufficiently serious breach”  mere
infringement of EU law, strict liability

Judicial Liability
- Can courts be held responsible for the violation of EU law?
- C-224/01 Köbler  yes, under certain conditions:
o Only final courts can be held responsible  no further remedy
o Reparation, not revision of the previous case  res iudicata stands
o Brasserie du Pêcheur test  only exceptional cases of manifest infringement of the law
 consider whether the EU law was clear, whether the infringement was intentional,
and whether the error was excusable. Disregard for settled ECJ’s case law as manifest
error

Kobler
- C-224/01 Köbler: “In the light of the essential role played by the judiciary in the protection of
the rights derived by individuals from Community rules, the full effectiveness of those rules
would be called in question and the protection of those rights would be weakened if individuals
were precluded from being able, under certain conditions, to obtain reparation when their rights
are affected by an infringement of Community law attributable to a decision of a court of a
Member State adjudicating at last instance”

Kobler as minimum protection

- The Köbler standard is the minimum of acceptable protection  national law going below this
threshold would be illegitimate

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- C-173/03 Traghetti del Mediterraneo  under no circumstances restrictions of judicial

liability stricter than those envisaged in Köbler can be imposed by the Member States,
specifically EU law prohibits the limitation of responsibility to cases of international
responsibility

Private liability
- Can private actors be ordered to pay compensation for violation of EU law?  Yes, under strict
conditions
- C-453/99 Courage  in case of obligations directly addressed at individuals, compensation is
possible (mere horizontal direct effect is not enough)
- C-295-8/04 Manfredi  it is up to national procedural law to establish the criteria and
procedures for the gravity of the violation and its compensation

The Rule of Law in the EU

What is the rule of law (RoL)?
- Formal (“thin”) conception: a series of requirements for legal norms (general, public,
prospective, clear, coherent, stable, possible to obey, administered consistently with their
apparent meaning)
- Institutional conception: separation of powers and the possibility for independent courts to
review arbitrary political decisions
- Substantive (“thick”) conception: specific individual rights against political powers, the
administration, and peers (e.g., access to justice, right to be heard, equality of arms but also free
speech and assembly, voting rights, non-discrimination, proportionality)
-

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