EU Law – Chapter 6: Foundational

Principles (Full Notes with Commentary)

1. 🔹 Principle of Conferral

Art 5(2) TEU

The EU can only act within powers explicitly given to it by the Treaties.

● Art 5(2) TEU: “The Union shall act only within the limits of the competences conferred
upon it by the Member States…”

● Confirmed in Declaration 18 (Treaty of Lisbon): sovereignty remains with MS.

📌 Key Case Law:

● Tobacco Advertising I (C-376/98)

🧠 Facts: Germany challenged an EU directive banning tobacco advertising.

✔ Held: Directive annulled – exceeded Art 114 powers; not genuinely about market
regulation.

● Tobacco Advertising II (C-210/03)

🧠 Facts: New directive limited cross-border advertising only.

✔ Held: Valid — the cross-border element justified internal market competence.

📚 Academic Commentary:
● Craig & de Búrca: Conferral is a formal limit but practically stretched through broad
readings of internal market powers.

● Chalmers et al.: Describe conferral as “flexible in the Court’s hands,” especially under
Art 114 TFEU.
 ● Horspool: Conferral embodies the principle that EU is not a sovereign—it’s derivative of
MS 7agreement.

2. 🔹 Principle of Subsidiarity

Art 5(3) TEU

In shared competences, EU should act only if objectives cannot be effectively
achieved by MS.

● Applies only to shared competences.

● Monitored via Protocol No. 2: National parliaments may issue reasoned opinions
(yellow/orange card).

📌 Key Case Law:

● British American Tobacco (C-491/01)

🧠 Facts: Firms challenged EU packaging directive.

✔ Held: Upheld — differing national laws justified EU action; MS could not fix alone.

● Tobacco Advertising II

✔ Reiterated subsidiarity: EU action justified where MS action is insufficient.

📚 Academic Commentary:
● Chalmers et al.: Subsidiarity is politically significant, but judicial enforcement is weak.

● Craig: Courts give wide discretion — subsidiarity mainly functions as a check via
national parliaments, not litigation.

● Horspool: Emphasises subsidiarity as a symbolic protection of MS autonomy.

3. 🔹 Principle of Proportionality

Art 5(4) TEU

EU measures must be appropriate, necessary, and not excessive relative to
the aim.

📌 3-Part Test (CJEU Standard):

1. Suitability – Capable of achieving aim?

2. Necessity – Least restrictive means?

3. Proportionality stricto sensu – Fair balance of means vs objective?

📌 Key Case Law:

● Fedesa (C-331/88)

🧠 Facts: Ban on hormone-treated meat challenged.

✔ Held: Public health justified the ban — measure was proportionate.

● Spain v Council (C-310/04)

🧠 Facts: Challenged economic regulation on fish quotas.

✔ Held: Light-touch review where policy discretion applies.

● Scotch Whisky Association (C-333/14)

🧠 Facts: Scotland’s minimum alcohol pricing challenged under Art 34 TFEU.

✔ Held: Proportionate under Art 36 — public health aim justified trade restriction.

📚 Academic Commentary:
● Tridimas: “Proportionality is the most litigated and versatile general principle.”

● Craig & de Búrca: Courts apply different intensity of review — stricter in rights cases,
looser in economic or legislative fields.
 ● Horspool: Shows how proportionality maintains legitimacy of EU actions across legal
and political spaces.

4. 🔹 Supremacy of EU Law

(CJEU Jurisprudence)
EU law takes precedence over conflicting national law, including
constitutional norms.

📌 Key Case Law:

● Costa v ENEL (6/64)

🧠 Facts: Italian electricity nationalisation law conflicted with EU rules.

✔ Held: EU law is independent and supreme — later national laws cannot override.

● Internationale Handelsgesellschaft (11/70)

🧠 Facts: German firm argued EU measure violated German constitutional rights.

✔ Held: EU law prevails, even over national constitutions.

● Simmenthal II (106/77)

🧠 Facts: Italian court asked whether to wait for national law to be repealed.

✔ Held: National courts must immediately disapply conflicting national law.

● Factortame (C-213/89)

🧠 Facts: UK Act of Parliament restricted foreign fishing rights.

✔ Held: UK court had to set aside the statute — even Parliamentary Acts fall under
supremacy.

📚 Academic Commentary:
● Kumm (2005): Supremacy is EU law’s “constitutional core,” but rests on MS acceptance.

● Craig: Notes tension with constitutional identity clauses (e.g. Germany’s Solange
doctrine).
 ● Chalmers: Supremacy is crucial for uniformity and effectiveness, but politically sensitive.

5. 🔹 Direct Effect

Van Gend en Loos

Certain EU provisions confer rights on individuals enforceable in national
courts.

📌 Conditions (from Van Gend en Loos):

1. Clear and precise

2. Unconditional

3. No further implementation needed

📌 Key Case Law:

● Van Gend en Loos (26/62)

🧠 Facts: Dutch importer challenged illegal customs duty.

✔ Held: Art 30 TFEU had direct effect — individuals may enforce rights.

● Defrenne v Sabena (No 2) (43/75)

🧠 Facts: Air hostess sued employer for unequal pay.

✔ Held: Art 157 TFEU had horizontal direct effect.

● Marshall (152/84)

🧠 Facts: Woman forced to retire earlier than men.

✔ Held: Directive could only be enforced vertically (against the state).

● Faccini Dori (C-91/92)

✔ Held: Reaffirmed that directives lack horizontal direct effect.

📚 Academic Commentary:
● Weatherill: Points out legal gap when directives lack horizontal effect — calls for reform.

● Craig: CJEU’s approach blends legal formalism with pragmatism — maintains MS

responsibility to implement.
Direct effect and secondary law

● The principle of direct effect also relates to acts from secondary law, that is acts adopted
by the EU institutions, such as regulations, directives and decisions, which are derived
from the principles and objectives set out in the treaties. However, the application of
direct effect depends on the type of act.

● Regulations are directly applicable in the Member States, as specified in Article 288 of
the Treaty on the Functioning of the European Union , and have therefore direct effect.
However, in line with the general principles, this applies only under the condition that the
rules are sufficiently clear, precise and relevant to the situation of the individual litigant
(direct effect as clarified by the Politi v Ministero delle finanze Court judgement).
● Directives are acts addressed to Member States which must be transposed into national
law. However, in certain cases, the Court recognises the direct effect of directives in
order to protect the rights of individuals. Therefore, the Court laid down in its Van Duyn v
Home Office judgment that a directive has direct effect when its provisions are
unconditional and sufficiently clear and precise and when the Member State has not
transposed the directive by the deadline. However, it can only have direct vertical effect
– Member States are obliged to implement directives but directives may not be cited by
a Member State against an individual (see Ratti judgment).
● Decisions may have direct effect when they refer to a Member State as the addressee.
The Court therefore recognises only a direct vertical effect (Hansa Fleisch v Landrat des
Kreises Schleswig-Flensburg judgment).
● International agreements. In its Demirel v Stadt Schwäbisch Gmünd judgment, the Court
recognised the direct effect of certain agreements in accordance with the same criteria
identified in the Van Gend en Loos case.
● Opinions and recommendations do not have legal binding force. Consequently, they do
not have direct effect.

Term Meaning Enforceable Against?

Vertical Direct Effect Individual enforces EU law State, public bodies

against the state
Horizontal Direct Effect Individual enforces EU law Private persons or firms
against another individual or
company

6. 🔹 Indirect Effect

Consistent Interpretation
National law should be interpreted in line with EU law, where possible.

● Applies even where national law predates EU rule.

● Known as the “duty of harmonious interpretation.”

📌 Key Case Law:

● Von Colson (14/83)

🧠 Facts: Women denied promotion — relied on Equal Treatment Directive.

✔ Held: National courts must interpret law “in light of the directive’s aim.”

● Marleasing (C-106/89)

🧠 Facts: Spanish law predated relevant directive.

✔ Held: Still must interpret consistently.

● Pfeiffer (C-397–403/01)

✔ Held: Courts must consider entire body of national law to align with
directive.

📚 Academic Commentary:
 ● Tridimas: Indirect effect respects national procedural autonomy while ensuring
effectiveness.

● Craig: Seen as a middle ground where direct effect is not available.

7. 🔹 State Liability

Francovich Doctrine
MS must compensate individuals for damage caused by breaches of EU law.

📌 Conditions (Francovich + Brasserie):

1. Rule infringed confers rights

2. Breach is sufficiently serious

3. Direct causal link between breach and damage

📌 Key Case Law:

● Francovich (C-6 & 9/90)

🧠 Facts: Italy failed to implement wage protection directive.

✔ Held: State liable — failure deprived individuals of rights.

● Brasserie du Pêcheur / Factortame III (C-46 & 48/93)

🧠 Facts: German and UK laws conflicted with EU obligations.

✔ Held: MS liable even for legislative acts breaching EU law.

● Köbler (C-224/01)

🧠 Facts: Austrian court wrongly denied EU rights to a professor.

✔ Held: Even judicial decisions can trigger state liability.

📚 Academic Commentary:
 ● Tridimas: State liability ensures horizontal enforcement of EU supremacy.

● Craig: Essential to close the enforcement gap where direct effect fails.

🔁 Master Summary Table

Principle Key Case(s) Rule Established Academic Viewpoint

Conferral Tobacco I & II EU acts only within Craig: flexible via Art
Treaty powers 114

Subsidiarity BAT, Tobacco II EU acts only if MS Chalmers: weak in

cannot court, stronger
politically

Proportionality Fedesa, Scotch Suitability, necessity, Tridimas: most

Whisky balance versatile principle

Supremacy Costa, Simmenthal, EU law overrides all Kumm: constitutional

Factortame national law identity tensions

Direct Effect Van Gend, Defrenne, Enforceability by Weatherill: legal gaps

Marshall individuals for directives

Indirect Effect Von Colson, Interpret national law Craig: soft tool to
Marleasing consistently maintain unity

State Liability Francovich, Compensation for Tridimas: tool for

Brasserie, Köbler serious breach enforcement

What past papers show:

1. “General principles” appear as a standalone

question

A past compilation of exam papers (covering around 2006–2016) includes a question like:

“How are the ‘general principles’ of EU law, such as fundamental rights, legal
certainty, non-discrimination and proportionality, recognised and used by the
Court of Justice in its interpretation and application of European Union law?”
So yes—principles like legal certainty and proportionality are often directly
examined.

2. Supremacy and direct effect pop up frequently

A 2018 exam includes an essay prompt that explicitly asks candidates to discuss:

“In light of the way in which the principle of supremacy has been developed in
the case law of the CJEU and has been received by the EU Member States.”
This shows that supremacy is a common standalone topic.

3. Problem questions testing doctrine application

Some papers frame supremacy and direct effect within fact patterns. For example, a May 2024
LLB exam includes:

“As the recent case law on the rule of law illustrates, the principle of
supremacy of EU law simply does not work in practice…” — here they’d test
your ability to evaluate supremacy in complex contexts.
And another question challenges:
“The rule by which directives lack horizontal effect is overly formalistic and
the Court has always strived to remedy this by devising alternatives.”

Summary: Are Fundamental Principles Common in UoL Exams?

Absolutely—a resounding yes.

1. Core principles like direct effect, supremacy, proportionality, legal certainty, non-
discrimination, and fundamental rights are frequently directly questioned.

2. These doctrines are also embedded within problem scenarios, requiring you to apply
them in context.

3. Both standalone essays and blended questions are used to test these principles—so be
ready for either format.
What You Can Do Now
● Familiarize yourself with essay-style questions asking you to explain or critically assess
each principle.

● Practice applying these principles in problem-based scenarios—exercising both doctrinal

understanding and application.

● Want actual past paper question texts? I can walk you through a few more from different
years to provide exposure to patterns and phrasing.