Académique Documents
Professionnel Documents
Culture Documents
COURSE 1
Document analysis 1
- State of the Union Speech 2016:
o Jean Claude Juncker is the President of the European Commission.
o The President always delivers the State of the EU Speech as an annual debate in which
Members of the European Parliament (MEPs) asses (inschatten) the Commission’s
achievements of the past year and the objectives of the year to come.
o Are the key objectives in Juncker’s speech in line with the objectives of the
current TEU?
Yes, he promotes peace (this is also the key objective of the TEU).
- Analysis of the treaties:
o Treaty establishing the European Economic Community (TEEC)
- 1957
- States the very foundations of the EEC
- Often names as Treaty of Rome
o Treaty on the European Union:
- Last amended in 2009
- Foundations of the EU legal order today
Conclusion:
- Art. 2 TEU underlie the values of the TEU. They supply to all member states
(art. 1 TEU) as they are all contracting parties of the TEU.
- The key objectives over the years have evolved by his « target » and its
« target audience ». In the Treaty of Rome the aim is to promote the
economic between the member states, in the TEU the aim is to promote
peach and cooperation in different « branches of the societies » such as
politics, justice, economy,… for the well-being of its citizens
Detailed outline 1
I. The foundation of the European Union Legal Order: Why European Integration ?
A. Principles and values guiding the process of the European integration: Quest for the
essence of the European project
o EU founded on a system of values (to achieve the ever closer Union) (art. 2 TEU)
- Art. 2 states the most important values but…
- There is no clear definition of all the values because we adopted provisions and
instruments in the EU Treaties to this values…
Provisions on democratic principles (e.g. art. 11 TEU)
Provisions on non-discrimination between citizens (e.g. art. 18 TFEU &
the EU directives implementing the principle of equal treatment between
persons irrespective of racial or ethnic origin, religion or belief, disability,
age or sexual orientation).
- … and instruments that complement the EU Treaties themselves.
Art. 6 (1) TEU: charter of Fundamental Rights of the EU (= CFEU) with
includes for instance the protection against data basses.
Art. 6 (2) TEU: the EU shall accede to the European Convention for the
Protection of Human Rights and Fundamental Freedoms (ECHR)
Art. 6 (3) TEU: general principles of the Union’s law (including ECHR +
constitutional traditions common to the Member States.
SO: all values apply to the member states BUT there could be exceptions or
problems with these values (art. 7 TEU)
Tools:
B. From the EEC to the European Community (EC) and the European Union (EU)
The ‘empty chair crisis’ (1966): From 30 June 1965 to 29 January 1966, in
disagreement with the Commission of the European Communities on the
financing of the common agricultural policy (CAP), France’s representatives
refuse to attend any intergovernmental meetings of the Community bodies in
Brussels.
Treaty amending Certain Budgetary Provisions (1971) & Treaty amending
Certain Financial Provisions (1977) which adjusted own resources
(geldmiddelen) for the EEC.
Changes in the practice of European affairs: increased intergovernmental
cooperation on: economic and monetary union + foreign policy (European
political cooperation) + justice and home affairs (e.g. immigration)
Institutional changes affecting the EEC: increased impetus (“macht”) from the
European Council (of ministers) 1 + Assembly turned into directly elected
‘European Parliament’ ( EU council is indirectly chosen by Parliament) (1977)
+ Case law of the Court of Justice (See d.)
1
European Council = the Executive Power of the EU so supranational, intergovernmental is the Council of
Europe with haeds of states & governments
The Treaty signed on 7 February 1992 in Maastricht lays the foundations for a new European
structure. It establishes a ‘European Union' that brings together not only the three European
Communities, but also two areas of political cooperation between Member States (CFSP and JHA).
The aim is to allow these three elements to develop within a unified framework. This new structure is
generally represented in the form of a Greek temple made of three pillars: the Community pillar,
which has a supranational character, and the second and third pillars, which have an
intergovernment
al character.
2
Treaty of Rome (TEEC) VS TEU:
- Economic integration vs political objectives
- Two important changes in TEU:
o The European Community : stronger monetary union (losing economic purposes), closer level
of integration
o Complemented by a second Treaty: TFEU
COURSE 2
Document analysis 2
- Analyses of abstracts from the TEU
- In the abstracts the key provisions
- TEU forms the basis of EU law by setting out the general principles of the EU, the
governance of its main institutions as well as special mechanisms for enhanced
cooperation and external, foreign and security policy
Art. 1 TEU: establishing the EU by the high contracting parties by conferring
competences to this EU. ….
Art. 51 TEU: the protocols and annexes to the Treaties shall form an integral part
thereof.
Art. 52 TEU: States the TEU applies to and referring to art. 355 of TFEU.
Art. 53: This Treaty concluded for an unlimited period.
Art. 54 TEU: ratification and regulation for coming into force
Art. 55 TEU: Parties of the treaty and regulation about languages of the treaty and
copies for every MS.
- Analysis of abstracts of the Treaty on the functioning of the EU (TFEU)
o TFEU forms the detailed elaboration to the basic EU rules. It sets out how the EU can
exercise its competences and the areas in which the EU law operates
Art. 1 TFEU: determines the functioning of EU and the areas.
Art. 356 TFEU: unlimited period
Art. 357 TFEU: ratification etc.
Conclusion + questions:
b. Do you know which countries are potential candidates for acceding to the EU?
c. In order to become a Member of the EU, countries have to ratify the Treaties (see Art.
54(1) TEU and Art. 357 TFEU above). What is meant by ratification?
Ratification means the fact that a state accepts a treaty like it is signed by a representative.
d. What exactly does it mean when Article 53 TEU and Article 356 TFEU state that the
Treaties are concluded for an unlimited duration?
- TEU sets out the general infrastructure. TFEU contains more detailed content
3. How do Protocols relate to the Treaties? What is their status under EU law?
4. Article 52 TEU enumerates all EU Member States. Article 55 TEU on the other hand lists in which
languages the Treaty is drawn up in the original language.
a. Are all the languages used in the ‘Article 52 TEU list of Member States’ covered by the
original languages listed in Article 55 TEU?
There are less translations than there are member states because some member states share
a language (e.g. Belgium + The Netherlands)
EXTRA: Why does the TEU mention 'European Community', '1993' and 'Maastricht'?
Eventhough there has been a consolidation of the treaties and the amendments, the TEU still
contains some old elements.
Note:
Potential candidates: These are countries/entities which have a clear prospect of joining the
EU in the future but have not yet been granted candidate country status.
Detailed Outline 2
3. Terminology and numbering (Part I, see detailed outline 1)
- The historical overview in Part I explains that we also can refer to the
historical organizations as developments or steps between the conferences in
different EU cities:
o ECSC: European Coal and Steal Community (Treaty of Paris)
o EEC: European Economic Community (referred to as developments predating the
entry into force of the Maastricht Treaty (= Rome Treaty)
o EC: European Community (referred to as developments postdating the entry into
force of the Maastricht Treaty but predating the entry into force of the Lisbon Treaty)
and EU: European Union (for the same reasons and to encompasses the three-pillar-
structure, pre-Lisbon)
o EU: European Union as it exists today since the entry into force of the Lisbon Treaty
o Community Law: used to describe EEC as well as EC law & Union Law (or EU law) and
mostly used to refer to the law post-Lisbon.
- Some of the treaty changes have also changed the numbers of the provisions
of the founding treaties:
o Table of Equivalences between new and old Treaty numberings are available in
Annex to the consolidated version of the TEU and TFEU after the entry
into force of the Lisbon Treaty for a pre/post Lisbon comparison
As well as in Annex to the Treaty of Amsterdam for a pre/post
Amsterdam comparison
= for the consolidation of legal texts: better coherence in the TEU & TFEU because all the
changes are “up-to-date”.
D. The Constitutional Charter: the EU Treaties: EU lawyers’ and students’ starting point:
1. A legal order defined by the Treaties themselves:
o The Treaties created “norms” to define the legal order and works as the
constitution of the EU.
o Online or in the VRG Book (also 2016?) you can find consolidated version with
the new member state Croatia and small changes. This is important for voting &
working within the parliament etc.
o See also the Protocols and the Charter of Fundamental Rights of the EU
Notes:
a. Are all the languages used in the ‘Article 52 TEU list of Member States’ covered by the
original languages listed in Article 55 TEU?
There are less translations than there are member states because some member states share
a language (e.g. Belgium + The Netherlands)
Because every European citizen needs to understand the rules. Otherwise they can’t be
forced to confirm the obligations and to know their rights.
Simplified revision procedure (Art.48(6) TEU) (amending Part III of the TFEU
on union policies and internal actions + shall not increase competences of the
EU)
= MS, EP or Commission -> proposal to
European Council
No Convention
No IGC
BUT unanimity at European Council and approval by each MS.
“Passerelle” (overgang / bruggetje) (see art. 48 (7) TEU, exceptions
in art. 353 TFEU) to enhance the supranational nature of EU
decision making.
Unanimity at the Council -> qualified majority voting
Special legislative procedure -> ordinary legislative procedure
European Council:
• No convention, no IGC, no ratification
• BUT consent EP and national parliaments may voice
themselves to lock.
SO: although we have 3 different procedures to change the ‘constitution’, all states have
to agree AND parlements can block the decisions!!
COURSE 3
Document analysis 3
-Representation of the EU citizens in the EU institutions and the instrument of
the citizen’s initiative:
o Art. 10 (1)(2) TEU:
The procedures and conditions required for such a citizens' initiative shall be
determined in accordance with the first paragraph of Article 24 of the Treaty
on the Functioning of the European Union.
The first European Citizen’s Initiative to collect one million validated signatures was started
3
See other examples on http://www.citizens-initiative.eu/
http://www.europarl.europa.eu/news/en/news-room/20140204STO34708/right-to-water-attend-
the-first-ep-hearing-for-a-citizens'-initiative
2
http://www.europarl.europa.eu/news/en/news-room/20140204STO34708/right-to-water-attend-
the-first-ep- hearing-for-a-citizens'-initiative
http://ec.europa.eu/transparency/regdoc/rep/1/2014/EN/1-2014-177-EN-F1-1.Pdf
3
http://ec.europa.eu/transparency/regdoc/rep/1/2014/EN/1-2014-177-EN-F1-1.Pdf
4
In particular, Michel Barnier, EU Commissioner for the Internal Market, made an explicit reference to this
citizen’s initiative when deciding to remove water from the scope of the “concessions directive”. This citizen’s
initiative triggered a discussion about concerns regarding liberalisation in general and the privatisation of water
services in particular. The argument has been made that public service and environmental interests should
The initiative was submitted to the Commission in December 2013 and the public hearing
took place in February 2014 at the European Parliament.2
In March 2014, the Commission has adopted the Communication in response to the
Right2water initiative.3 The public support for the campaign led the Commission to remove
water from the EU concessions directive.4
2. Does the Citizen’s initiative procedure help in making people involved at EU level?
Not really. Very little people know about it.
Additional question: 'How do participants to this course feel about Turkey being a
candidate country knowing the practices of Erdogan (e.g.: the so-called 'failed' coup?) '
Turkey doesn’t respect democratic ideas, but on the other hand is Turkey a very important
geopolitical partner (Russia, Middle East)
Detailed outline 3
II. The actors of the European Union integration process: Who are the key players in the
European Union?
A. The High Contracting parties and their constituencies: Those who have signed up for it
(signed the EU Treaties).
1. Member States of the EU (see chapter 6 except for 6-017)
o Without the MS nothing happens in the EU, they are the key players and the
basis of the EU.
o Successive enlargements: from 6-28 MS
Enlargement and geopolitics: geopolitics was essential for the
enlargements of the EU but also for the interpolitics.
Note: a few countries stand out due to the complexity of the relationship to the EU like
Turkey (practices of Erdogan & failed co-d’Etat SO Turkey still a candidate state & important
partner).
Note: Swiss & Norway who like to remain independent but have a close relationship with the
EU.
o Becoming a Member State to the EU Treaties: Article 49 TEU
Conditions:
- European State
- Respect for & commitment to promoting the values listed in Art.2 TEU
- Eligibility conditions defined by European Council to be taken into account:
‘Copenhagen criteria’ (European Council, 1993)
1. Achieved stability of institutions guaranteeing, democracy, the rule of law, human rights,
respect for minorities.
2. Existence of functioning market economy + capacity to cooperate.
3. Ability to take obligations of membership
- Union acquis: implementation of the EU legislation
Answer on Toledo: What is the meaning of "Union acquis"? The conditions to become a
Member State to the EU treaties are summed up. One of the conditions is Union acquis.
What does this mean?
Handbook 6-010: In order to become a MS of the EU these MS have to accept the Union
acquis or the acquis communautaire. These are defined as the rights and obligations, actual
and potential of the community system and its institutional framework. The potential MS
have to accept the Treaty provisions, the decisions taken by the EU institutions and the case
law of the CJEU. (read this paragraph in the hb) Since the replacement of the community by
the union, the acquis communautaire is now called the union acquis.
-
Procedure:
- Apply to the Council (unanimity + consultation of Commission + consent of EP
by majority of component (of all) members)
- Notify European Parliament (EP) & national Parliaments to make sure the
national democratically chosen institutions are informed.
Recall the impact of enlargements on amendments of the relevant EEC,
EC and EU Treaties (see above section I.C.): see Art.49(2) TEU
= not only internal legislation has to adopt EU law, EU law has to be
Recent history:
23 June 2016, referendum in the UK: ‘Should the United Kingdom remain a
member of the European Union or leave the European Union?’
51.9% answer LEAVE out of a national turnout of 72.2%, visualize results at:
http://www.electoralcommission.org.uk/find-information-by-subject/elections-and-
referendums/past-elections-and-referendums/eu-referendum/eu-referendum-result-
visualisations.
2 October 2016, UK Prime Minister Theresa May announces that the UK will trigger Art.50
TEU by the end of March 2017
2. EU citizens: those who give the MS the mandate to do so (see also Chapter 8
except for sections 8-008 to 8-011)
o Definition of EU citizens
Every national of a MS shall be a citizen of the Union
Citizenship of the Union shall be additional to and not replace national
citizenship (art. 9 TEU).
o EU citizens and EU constitutional reforms:
Ratification of EU Treaties in accordance with ‘respective constitutional
requirements’ & notifications by applicant States.
Note: Q&A Toledo: I still don't fully understand the difference between direct and indirect
representation. Where can I find a good explanation?
(hb 13-005, 13-015, 13-044-13-045) There is direct representation at EU level in the EP: citizens of
the EU are able to elect the members of parliament. These MEP’s represent citizens directly and not
COURSE 4
Document analysis 4
- Abstracts of Treaty articles
o Article 14 (1)(2) TEU (= basis of the EP!!!!)
1. The European Parliament shall, jointly with the Council, exercise legislative and
budgetary functions. It shall exercise functions of political control and consultation as
laid down in the Treaties. It shall elect the President of the Commission.
2. The European Parliament shall be composed of representatives of the Union's citizens.
They shall not exceed seven hundred and fifty in number, plus the President.
Representation of citizens shall be degressively proportional, with a minimum threshold
of six members per Member State. No Member State shall be allocated more than
ninety-six seats.
The European Council shall adopt by unanimity, on the initiative of the European
Parliament and with its consent, a decision establishing the composition of the
European Parliament, respecting the principles referred to in the first subparagraph.
The President, the High Representative of the Union for Foreign Affairs and Security
Policy and the other members of the Commission shall be subject as a body to a vote
of consent by the European Parliament. On the basis of this consent the Commission
shall be appointed by the European Council, acting by a qualified majority.
http://www.europarl.europa.eu/news/en/news-room/20160909IPR41739/parliament-
endorses-sir-julian-king-as-commissioner-for-security-union
Detailed outline 4
B. The EU institutions: each institution is structured to perform specific functions in the EU
legal order
= (Chapter 13, sections 13-001 to 13-076, but also sections 13-007-13-078, 13-090
to 13-095 in conjunction with the Council press release ‘Court of Justice of the EU:
Council adopts reform of General Court’, http://www.consilium.europa.eu/en/press/press-
releases/2015/12/03-eu-court-of-justice-general-court-reform/)
o Art. 13 TEU:
An institutional framework to promote EU values, advance its objectives,
serve its interests, those of its citizens and those of the Member States,
and ensure the consistency, effectiveness and continuity of its policies and
actions.
i. Election
o The members of the EU Parliament shall be elected for a term of five years by
direct universal suffrage in a free and secret ballot (= stemming) (art. 14 (3)
TEU).
o Main rules are set out in the Act concerning the election of the representatives
of the Assembly by direct universal suffrage (1976, entered into force in 1977,
last amended in 2002).
Electoral procedure:
- in each Member State but with common principles: each MS organise
their own election within the EU rules and principles.
- procedure governed by national provisions but essentially proportional
nature of the voting system (= proportional representation of the
country)
- date and times fixed by each Member State but within the same period
(Thursday to Sunday) defined at EU level
- Member States may not officially make public the results until after the
close of the last national polling (= wait until every result is known).
ii. Composition
o The number of MEP’s shall not exceed 750 + President
o Representation of citizens shall be degressively (= in een bepaalde verhouding
afnemend) proportional:
Details:
- initiative of EP -> European Council (unanimity) + consent of EP ▼
- European Council Decision of 28 June 2013 establishing the
composition of the European Parliament for the 2014-2019
parliamentary term: interactive overview available at
http://www.europarl.europa.eu/meps/en/map.html
- Eg. Belgium 21; Croatia 11; Germany 96 (abs. max); Cyprus/Lux/Malta 6
(abs. min)
- See also Hb 13-016
iii. Statute for MEPs
o vote on an individual and personal basis; not bound by any instructions
and no binding mandate
o benefit from privileges and immunities
o receive an appropriate salary to safeguard their independence
Main bodies
- Bureau (= administrative function)
- Conference of Presidents (= President of the EU Parliament & other
ministers related for that certain political subject)
Q&A on Toledo: I don't really understand what the difference is between a political group
and a political party (such as a European political party) Apply the rules for political groups
(at least 25 MEP's,...) also for political parties? Hb 13-024
Political groups: The Members of the European Parliament sit in political groups – they are
not organised by nationality, but by political affiliation. There are currently 8 political groups
in the European Parliament (see website EP). Most MEP’s belong to political groups. The
remainder are referred to as non-attached. Some political groups have underpinned their
political cooperation by forming a European party. Every MEP in the parliament is thus
allocated to a political group.
Political parties: the parties work in close cooperation with the corresponding political
groups in the EP. Current EU parties: the European People’s Party, the Party of European
Socialists, the Alliance of Liberals and Democrats for Europe, the European Green Party, the
Alliance of Conservatives and Reformists in Europe, the Party of the European Left, the
Movement for a Europe of Liberties and Democracy, the European Democratic Party, the
European Free Alliance, the European Alliance for Freedom, the Alliance of European
National Movements, the European Christian Political Movement, and the EU Democrats.
What is the role of the non-attached members? Is it correct that they cannot designate
coordinators, but they can nominate members of committees?
Non-attached MEPs, are MEP’s who do not sit in one of the recognized groups. These MEP’s
can be members of national party or of a European political party, but for a grouping to be
formed in the EP there need to be 25 MEP’s from 7 different MS. It is correct that they may
nominate members of committees so they can take part in EU decision making but have less
influence on the internal political organization of the work of the EP.
In detailed outline 4 the organization of the European Parliament is explained. Here, it isn’t
clear to me what the political parties exactly does. It says that there can be non-attached
members and being in a political party doesn’t change your statute as MEP’s but how does
a party exactly gather in the EP and how can it exercise its influence?
Hb 13-024
Political 'groups' play a more important role than ‘parties’. That is to say, the political groups
structure the internal organisation of the European Parliament during its 5 years of activity
whereas political parties are active during the preparation of the elections to the EP.
Political groups are quite important in so far as the members of a political group organise
themselves in a way that allows them to have an influence on the internal agenda of the EP
(eg. chairmen of groups have a voting right in the conference of presidents, non-attached
members do not have such a voting right). See also the answer to the previous question.
v. Voting arrangements
Note: all MEPs participate in all votes in which the EP is involved even if their country
of origin is not involved in the relevant EU policy.
= all MEP’s vote in EU materials
vi. Functions
o Legislative functions
- Ordinary co-decider (= together with counsil of ministers or council of
EU).
- Lesser role in the other decision-making procedures (eg. Art. 36(1) TEU
on CFSP)
- Soft indirect legislative initiative (art. 225 TFEU): not binding & only the
Commission takes final decision.
o Budgetary functions
- Co decider with Counsil
o Role in conclusion of international agreements (eg. Art. 218(6) TFEU)
o Political control
- Control on the institutes by checks and balances and possibility to
interrupt (= “whatchdog”)
• See doc. Analysis 4: Why may the European Parliament
have a say on the composition of the Commission?
=The parliament has to give a democratic stamp to the
commission. The parliament is voted by citizens, the
commission is not.
• Influence on the composition of the Commission (art. 17
(7) al. 3 TEU)
• Election of the President of the Commission (Art.14(1)
TEU)
• Motion of censure (Art.234 TFUE)
• Discharge of budget (Art.319 TFEU)
• Open discussion of annual report by the European
Commission
• Responses by the Commission to MEPs’ questions
(Art.230 TFEU)
• See also Hb 13-009
vii. Seat
o Protocol 6 on the location of the seats of the institutions and of certain bodies,
COURSE 5
Document analysis 5
- The European Council: Article 15 TEU
1. The European Council shall provide the Union with the necessary impetus for its
development and shall define the general political directions and priorities thereof. It
shall not exercise legislative functions.
2. The European Council shall consist of the Heads of State or Government of the
Member States, together with its President and the President of the Commission.
The High Representative of the Union for Foreign Affairs and Security Policy shall
take part in its work.
3. The European Council shall meet twice every six months, convened by its President.
When the agenda so requires, the members of the European Council may decide
each to be assisted by a minister and, in the case of the President of the Commission,
by a member of the Commission. When the situation so requires, the President shall
convene a special meeting of the European Council.
4. Except where the Treaties provide otherwise, decisions of the European Council shall
be taken by consensus.
Here you can find one of the latest European Council Conclusions concerning the
Paris Agreement: http://data.consilium.europa.eu/doc/document/ST-12-2016-
INIT/en/pdf
Please read paragraph 15 on page 5 of this document and answer the preparatory
questions.
- Concept clarification:
o The EU energy security: Can be defined as follows: ‘the uninterrupted availability of
energy sources at an affordable price’. The Commission presented an energy security
package with necessary proposals to equipe the EU for global energy transition as well
as to be prepared for possible energy supply interruptions.
o Paris Agreement: The agreement sets out a global action plan to put the world on
track to avoid dangerous climate change by limiting global warming to well below 2°C.
Conclusion:
1. What is the main difference between the European Council and the Council of the European
Union?
- European council mostly decides by consensus (<-> council of the EU: qualified majority)
- European council consists of heads of states (<-> council of the EU: gathering of ministers)
Documents that to identify specific areas of issues of concern for the EU and they outline particular
actions to take or goals to reach
3. How does paragraph 15 of the Council Conclusions identified above illustrate that the European
Council exercises a function of political initiative?
It sets out priorities and invites the Commission to take legislative action
4. In your view, how could the European Council’s function of political initiative relate to the
Commission’s power of initiative defined in Article 17(2) TEU?
The council sets out general outlines, the commission works out the details. But the commission is
not under any obligation to take legislative action
Detailed outline 5
2. The European Council
Note: decisions by consensus & no legislative power, only initiative power. Heads of
States.
council of the EU: legislative power, decisions by qualified majority, ministerial
level.
BUT these are both EU institutions!! Council of Europe (NO EU institution)
- Art. 15.2 TEU = composition
- Art. 15.6 TEU: role of the President (= permanent for 2,5 years, now
Donald Tusk).
- Art. 15.4 TEU = decisions by consensus
o In general:
Historical evolution Historical evolution, existed de facto very early:
- ‘Member States are represented in the European Council by their
Heads of State or Government [...], themselves democratically
accountable either to their national Parliaments, or to their citizens.’
(Art.10(2) al.2 TUE)
Since Lisbon Treaty it’s a constitution and it can take decisions, mostly to set
a. Composition
o According to Art. 15 (2) TUE:
- European Council = Heads of State or Government of the
Member States + President of the European Council +
President of the Commission
- The High Representative of the Union for Foreign Affairs and
Security Policy shall ‘take part in its work’
b. Internal organization
c. Decision making
o
Deciding…
- Consensus (Art.15(4) TEU) unless otherwise provided (eg. Articles 31(2)
TUE on CFSP, 236 TFUE on Council configurations)
- In case of vote, only Heads of States and governments take part
(Art.235(1) TFUE)
- In case of a decision by unanimity, abstention does not prevent
adoption (Art.235(1) TFEU; eg. Art.7(2) TEU)
- In case of a decision by qualified majority voting, same calculation
method as for the Council of ministers (Art.235(1) TFEU; Art.17(7) TEU
on proposal for President of Commission)
- Decisions by simply majority are also possible, eg. procedural
questions/rules of procedure (Art.235(3) TFEU)
Note:
Q&A on Toledo: This Council Decision added a third paragraph to Article 136 TFEU in
order to allow for the establishment of the ESM (European Stability Mechanism).
If you want more information regarding the content of the Decision and the need
for a treaty change, you can find more information on the following webpages:
http://europa.eu/rapid/press-release_IP-11-153_en.htm?locale=en
http://ec.europa.eu/archives/commission_2010-2014/president/news/speeches-
statements/pdf/20110215_en.pdf
d. Functions
o EU Council sets out political directions and priorities (art. 15 (1) TUE, eg. Arts.
o In your view, how could the European Council’s function of political initiative
relate to the Commission’s power of initiative defined in Article 17(2) TEU?
= The council sets out general outlines, the commission works out the details.
But the commission is not under any obligation to take legislative action
Eg. Proposes to the EP a candidate for the election of the President of the
Commission (Art.17(7) TEU)
Eg. Appoints High Representative of the Union for FASP (Art.18 TEU) Eg.
COURSE 6
Document analysis 6
- Abstracts of Treaty articles
o Article 16 TEU
1. The Council shall, jointly with the European Parliament, exercise legislative
and budgetary functions. It shall carry out policy-making and coordinating
functions as laid down in the Treaties.
2. The Council shall consist of a representative of each Member State at
ministerial level, who may commit the government of the Member State in
question and cast its vote.
[…]
6. The Council shall meet in different configurations, the list of which shall be
adopted in accordance with Article 236 of the Treaty on the Functioning of the
European Union.
[…]
Conclusion:
1. As indicated in recital (1) and in Article 1 of Council Decision 2016/1316, the rotation of the
presidencies of the Council is organized by groups of three countries. What could be the reasons
for doing so? Look at the group of countries in the Annex:
- Groups of 3 countries having rotating presidency is a way to ensure some consistency in the
presidency
- The groups have to ensure that the presidency of the council is always passed to a country from
another region of the EU than the current presiding country.
2. Which Member State has recently ‘made it known publicly that it will withdraw from the Union’
as alluded to at recital (3) of the Preamble of Council Decision 2016/1316?
- Can you find that Member State in the list of countries in Annex to the Decision?
- Why do you think that, in June-July 2016, EU institutions felt it was necessary to revise the order
in which the office of President of the Council would be held in the near future?
It was a reaction on the Brexit referendum, because it is felt inappropriate to let a leaving
member presiding the council.
Detailed outline 6
a. Composition
b. Internal organisation
1. General affairs
2. Foreign affairs (security policy)
3. Economic and financial affairs (Including budget)
4. Justice and home affairs (Including civil protection)
5. Employment, social policy, health and consumer affairs
6. Competitiveness (internal market, industry, research and space) (Including
tourism)
7. Transport, telecommunications and energy
8. Agriculture and fisheries
9. Environment
10. Education, youth, culture and sport (Including audio-visual affairs)
=> The Member States send the minister who is competent for the competence
discussed in that meeting of the Council.
o Two configurations are directly provided for in Art.16 (6) TEU and have a special
role:
- General Affairs Council: overall consistency + prepare and follows-up
European Council meetings (with Presidents of European Council and
Commission)
- Foreign Affairs Council (security policy): elaborates the Union's external
action with European Council’s strategic guidelines + ensures
consistency of that aspect of EU action
o Presidency
o Except for the Foreign Affairs Council, that is presided by the High Representative
for FA&SP (art. 18(3) TEU).
o Normally the presidency of other Council configurations (art. 16(9) TEU) shall
operate as follows:
- an equal rotation so the presidency is held by member state on a
rotating basis, now Slovakia, next is Malta.
- A list established by EU council (qualified majority voting, art. 236 (b)
TFEU)
c. Decision-making (Elise kent het alphabet niet en maakt hier d. van i/d detailed outline)
o Meeting:
- See above
o Deciding:
i. The Council shall act by a qualified majority except where the Treaties
provide otherwise (art. 16(3) TEU)
- According to art. 16(4) TEU, as from 1.11.2014 4 (i. and ii. Ought to be
read in conjunction and all conditions are cumulative!!!)
- Qualified majority voting (or QMV) means:
• At least 55 % of Council
Cumulative conditions!! members
• (at least 15 Council
members)
• Representing Member States comprising at least 65% of
the population of the Union
• BUT any group opposing the decision must be composed
of at least 4 Council members in order to indeed form a
‘blocking minority or else the QMV is deemed attained
(=geacht te worden bereikt), see below
4
There were transitional arrangements prior to 31.10.2014.
Q&A Toledo: art. 238 (3): In that case not all members of the council
participate in the voting? E.g. 121(4) TFEU. Read the 2nd and 3th
paragraph of article 238(3) carefully. (no need to know more)
DUS: vanaf 1.11.2014 is de regeling van QMV uit art. 16(4) en art. 238 (3) in werking getreden en is
die van art. 3 protocol transitional provisions vervallen mits “transitionol period” waardoor ze nog
wel gebruikt kan wn (zie uitz’en hieronder). Vanaf 1.4.2017 zal er een “verstrengende” procedure
komen (namelijk de blocking minortiy naar beneden halen zodat er minder snel verder moet wn
gediscussieerd) om de council te laten verder discussiëren wanneer er geen blocking minority (= ¾ w
55%). Indien er 4 Council Members tegen zijn w er sowieso verder gediscussieerd!
Note: Revival of the so-called ‘Ioannina compromise’ & link with ‘safety
net’ role of the European Council (above)
=> The Ioannina compromise takes its name from an informal meeting of foreign
ministers of the states of the European Union which took place in the Greek city of
Ioannina on 27 March 1994. The resulting compromise laid down that if members of
the Council representing between 23 votes (the old blocking minority threshold) and 26
votes (the new threshold) expressed their intention of opposing the taking of a decision
by the Council by qualified majority, the Council will do all within its power, within a
reasonable period of time, to reach a satisfactory solution that can be adopted by at
least 68 votes out of 87. declaration annexed to the Treaty of Amsterdam extended this
compromise until the next enlargement took effect. The Ioannina compromise was
superseded by the provisions of the Treaty of Nice.
iii. Publicity
o ‘The Council shall meet in public when it deliberates and votes on a
draft legislative act.’ (Art.16(8) TEU)
o Legislative functions
- Ordinarily co-decider (with European Parliament)
- Stronger role in special decision-making procedures (eg. Art.19 TFEU)
Doc. Analysis 6:
- Which Member State has recently ‘made it known publicly that it will
withdraw from the Union’ as alluded to at recital (3) of the Preamble
of Council Decision 2016/1316 amending the Decision on the exercise
of the Presidency of the Council?
The United Kingdom
- Can you find that Member State in the list of countries in Annex to the
Decision?
No, the UK is no longer in the list of presiding members
- do you think that, in June-July 2016, EU institutions felt it was
necessary to revise the order in which the office of President of the
Council would be held in the near future?
It was a reaction on the Brexit referendum, because it is felt
inappropriate to let a leaving member presiding the council.
…in practice during the 2014 elections (see video abstract from document analysis
7)
Doc.analysis 7. How was the President of the Commission appointed before 2014?
- In the past, the heads of states and governments agreed who could
become president
Doc.analysis 7. How is the President of the Commission appointed after 2014?
- Political parties identify leaders among their members who will be their
candidates for the presidency of the Commission (‘Spitzenkandidaten’).
The party who wins the most votes in the European elections, their
candidate is elected as Commission president.
(now Jean-claude Junker)
Doc.analysis 7. Explain the importance of the role of the European Parliament in
the appointment of the President of the Commission.
- The appointment of the president by the parliament gives the citizens a say in
who will be elected. This raises the democratic value of the president and
encourages the citizens to go vote.
SO the citizens chose their Parliament, who vote for the President of the Comission on the basis of a
proposal of the Council, based on the Spitzenkandidaten (mostly the political party with the most
votes for the Parliament will be the proposed candidate).
Note: special provisions for the High Representative (more on this below)
b. Composition
o Commission as a ‘collegiate body’: the Commission = the ‘college’ of members
o Commission composed of one Commissioner per Member State (President
and High Representative included)
o See full overview at pdf
c. Status of members
o Independence! (Art.17(3) TEU & Art.245 TFEU)
o Incompatibilities, eg. MEPs may not be part of the European Commission
(see section on the EP)
o President Juncker, proposed changes (23.11.2016)
Note: special provisions for the High Representative (more on this below)
d. End of mandate
o Mandate: 5 years (Art.17(3) TEU)
o Individual resignation may be request by the President of the Commission
(Art.17(6) TEU) & compulsory retirement (or deprivation of benefits) may be
requested by the CJEU on application by the Council (simple majority of the
Commission (Arts.245 & 247 TFEU)
o Collective responsibility: motion of censure (motie van afkeuring) (art. 234 TFEU)
(see section on the EP)
Note: special provisions for the High Representative (more on this below)
e. Internal organisation
o The President of the Commission (Art.17(6) TEU):
- He shall lay down guidelines within which the Commission is to work;
- He decides on the internal organisation of the Commission, ensuring
that it acts consistently, efficiently and as a collegiate body;
- appoint Vice-Presidents, other than the High Representative of the
Union for Foreign Affairs and Security Policy, from among the members
of the Commission
The internal political organisation of the current Commission is usefully mapped out
here: http://ec.europa.eu/about/structure/docs/structure_en.pdf
Note: special provisions for the High Representative (more on this below)
f. Decision-making
o Meeting…
- Commissioners meet once a week
- Not public, confidential
COURSE 7
Document analysis 7
- Abstract of article 17 TEU
7. Taking into account the elections to the European Parliament and after having held the appropriate consultations, the
European Council, acting by a qualified majority, shall propose to the European Parliament a candidate for President of the
Commission. This candidate shall be elected by the European Parliament by a majority of its component members. If he
does not obtain the required majority, the European Council, acting by a qualified majority, shall within one month propose
a new candidate who shall be elected by the European Parliament following the same procedure.
The Council, by common accord with the President-elect, shall adopt the list of the other persons whom it proposes for
appointment as members of the Commission. They shall be selected, on the basis of the suggestions made by Member
States, in accordance with the criteria set out in paragraph 3, second subparagraph, and paragraph 5, second subparagraph.
The President, the High Representative of the Union for Foreign Affairs and Security Policy and the other members of the
Commission shall be subject as a body to a vote of consent by the European Parliament. On the basis of this consent the
Commission shall be appointed by the European Council, acting by a qualified majority.
Please watch the first 2:20 minutes of the video fragment on Spitzenkandidaten via the following
link:
http://www.europarl.europa.eu/news/en/news- room/20150526STO59409/spitzenkandidaten-the-
story-of-what-made-last-year's-ep- elections-different
Detailed outline 7
CJEU is the “top” and has also a General Court and Specialised Courts BUT since 1.9.2016 there
no Specialised Courst anymore, their tasks are given to GC.
a. Designation
o Selection criteria
- for members of the Court of Justice (Art.253 TFEU)
‘persons whose independence is beyond doubt’ + ‘qualifications
required for appointment to the highest judicial offices in their
respective countries or who are jurisconsults of recognised competence’
• independenc: independent of their country or any relative in
any case.
• competence: very good in what they do
v. Decision-making
o Publicity of hearings (unless serious reasons) (= exchange of arguments,
not binding)
o Deliberations shall be and remain secret (= exchange of arguments, not
binding)
Note:
- the CJEU cooperates with domestic courts who are in charge of the
daily application of EU law
- ‘Member States shall provide remedies sufficient to ensure effective
legal protection in the fields covered by Union law.’ (Art.19(1), see
further the last section of the course on national procedural autonomy)
vii. Seat
- (Protocol 6 on the location of the seats of the institutions and of certain
bodies, offices, agencies and departments of the European Union,
Art.1(d))
- Seat: Luxembourg
Note:
Compare Article 2 TEU with Article 18(2) TFEU? Which of the two is a 'legal basis'? and why?
Why is the principle of conferral one of the cornerstones of the EU legal order?
C. Beyond EU states and institutions? = other entities may also be key players
o The EU does not operate in a vacuum, it interacts with a multiplicity of actors other
than those described so far who thus in some ways also contribute to shaping the EU
legal order.
3. International organisations
Eg. The United Nations (Eu is a party in some UN-treaties).
Eg. The Council of Europe (eg. European Convention for Human Rights)
Eg. International Monetary Fund
Eg. World Trade Organisation
D. Conclusion
Vertical (Art.4(3) TEU) as well as horizontal (Art.13(2) TEU) duties of sincere cooperation
III. The normative function of the European Union: What can the European Union do?
- TEU: Article 5
1. The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed
by the principles of subsidiarity and proportionality.
3. Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if
and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at
central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better
achieved at Union level.
The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on the application of the
principles of subsidiarity and proportionality. National Parliaments ensure compliance with the principle of subsidiarity in
accordance with the procedure set out in that Protocol.
1. (…)
Each national Parliament shall have two votes, shared out on the basis of the national Parliamentary system. In the
case of a bicameral Parliamentary system, each of the two chambers shall have one vote.
2. Where reasoned opinions on a draft legislative act's non-compliance with the principle of
subsidiarity represent at least one third of all the votes allocated to the national Parliaments
in accordance with the second subparagraph of paragraph 1, the draft must be reviewed. This
threshold shall be a quarter in the case of a draft legislative act submitted on the basis of
Article 76 of the Treaty on the Functioning of the European Union on the area of freedom,
security and justice.
3. Furthermore, under the ordinary legislative procedure, where reasoned opinions on the
non-compliance of a proposal for a legislative act with the principle of subsidiarity represent
at least a simple majority of the votes allocated to the national Parliaments in accordance
with the second subparagraph of paragraph 1, the proposal must be reviewed. After such
review, the Commission may decide to maintain, amend or withdraw the proposal.
If it chooses to maintain the proposal, the Commission will have, in a reasoned opinion, to
justify why it considers that the proposal complies with the principle of subsidiarity. This
reasoned opinion, as well as the reasoned opinions of the national Parliaments, will have to be
submitted to the Union legislator, for consideration in the procedure:
(a) before concluding the first reading, the legislator (the European Parliament and the
Council) shall consider whether the legislative proposal is compatible with the principle
of subsidiarity, taking particular account of the reasons expressed and shared by the
majority of national Parliaments as well as the reasoned opinion of the Commission;
(b) if, by a majority of 55 % of the members of the Council or a majority of the votes cast in
the European Parliament, the legislator is of the opinion that the proposal is not
compatible with the principle of subsidiarity, the legislative proposal shall not be given
further consideration.
(a) National parliaments have in the past on several occasions used the yellow card
procedure in order to voice their concerns on legislative proposals. One of these
examples concerned the revision of the posted workers Directive.
- A posted worker is an employee who is sent by his employer to carry
out a service in another EU Member State on a temporary basis.
- EU law defines a set of mandatory rules regarding the terms and
conditions of employment to be applied to posted workers.
- In 2016 the European Commission proposed a revision of the rules on
posting of workers within the EU.
- The revision’s main principle is to ensure that the same work at the
same place should be remunerated in the same manner.
- See the following link: http://www.ipex.eu/IPEXL-
WEB/dossier/document/COM20160128.do
the reasoned opinions sent by national parliaments: The 2014 Enforcement Directive has
provided for new and strengthened instruments to fight and sanction circumventions, fraud and
abuses. It addresses problems caused by so-called "letter-box companies" and increases the Member
States’ ability to monitor working conditions and enforce the rules applicable. Inter alia, the Directive
lists qualitative criteria characterising the existence of a genuine link between the employer and the
Member State of establishment, which can also be used to determine whether a person falls within the
The current initiative does not address any issue touched upon by the Enforcement Directive. Rather, it
focuses on issues which were not addressed by it and pertain to the EU regulatory framework set by
the original 1996 Directive. Therefore, the revised posting of Workers Directive and the Enforcement
Directive are complementary to each other and mutually reinforcing.
How many reasoned opinions have been sent by which national parliaments:
http://www.europarl.europa.eu/oeil/popups/printfichedocumentation.pdf?id=6
6547 4&lang=en
Questions:
1. Doc.analysis.8 What is the reason that paragraphs 2 and 3 of Article 7 of
Protocol No 2 have been given different colors?
Paragraph 2 is the yellow card-process: warning
Paragraph 3 is the orange card-process: strong warning
(<-> not like exclusion for red card in football)
3. How many reasoned opinions have been sent concerning the proposal for a
revision of the Posting of Workers Directive?
>19
Now that we know how the procedure actually works, let’s have a look at the Commission’s
response to the concerns of the national parliaments:
- European Commission - Press release
Posting proposal does not breach the subsidiarity principle
The College adopted today a Communication re-examining its proposal for a revision of the Posting of Workers Directive in
the context of the subsidiarity control mechanism that several national parliaments triggered in May. After careful
consideration of their views, the Commission concludes that the proposal for a revision of the Directive does not constitute
a breach of the subsidiarity principle.
The Commissioner for Employment, Social Affairs, Skills and Labour Mobility, Marianne Thyssen, said: "The voices of
national Parliaments have a strong political relevance for the Commission and I am very grateful for their active
involvement. We have carefully analysed all arguments put forward by national Parliaments and discussed their concerns
with them. All things considered, we have concluded that our proposal fully complies with the principle of subsidiarity and
we will therefore maintain it. Posting of workers is a cross-border issue by nature. The Juncker Commission remains firmly
committed to the free movement of people on the basis of rules that are clear, fair for everybody and enforced on the
ground."
The reform of the Posting of Workers Directive translates a clear commitment of this Commission to promote a deeper and
fairer internal market, set out in its Political Guidelines. The revision introduces changes in three main areas: remuneration
of posted workers, rules on temporary agency workers, and long-term posting. The proposal sets out that posted workers
will generally benefit from the same rules governing pay and working conditions as local workers.
On 8 March 2016, the Commission presented a proposal (COM(2016) 128 final) for a targeted revision of the Posting of
Workers Directive (Directive 96/71/EC), defining a set of mandatory rules regarding the terms and conditions of
employment to be applied to posted workers. It provides that the principle of equal treatment with local workers will also
cover posted temporary agency workers, thereby aligning the current legislation on temporary agency work.
In each Member State, due to two-chamber systems in a number of countries, the Parliament has two votes in the
framework of the subsidiarity control mechanism. 14 chambers of national Parliaments from 11 Member States (Bulgaria,
Croatia, Czech Republic, Denmark, Estonia, Hungary, Latvia, Lithuania, Poland, Romania and Slovakia) sent reasoned
opinions claiming that the proposal was in breach of the principle of subsidiarity. This triggered the subsidiarity control
mechanism (the so-called 'yellow card' procedure). In addition, national parliaments from five Member States (France, Italy,
Portugal, Spain and United Kingdom) submitted opinions that the Commission's proposal was indeed compatible with the
principle of subsidiarity.
In accordance with the subsidiarity control mechanism, the Commission re-examined its proposal in order to decide
whether to withdraw, amend or maintain it. Before taking its decision, the Commission engaged in political dialogue with
national Parliaments, through meetings of First Vice-President Timmermans and Commissioner Thyssen with the
Conference of Parliamentary Committees for Union Affairs of Parliaments of the EU (COSAC).
The subsidiarity control mechanism applies in areas which do not fall within the exclusive competence of the Union.
Parliaments have 8 weeks to issue a 'reasoned opinion' if they consider that a draft legislative act does not comply with the
principle of subsidiarity. The threshold to trigger the 'yellow card' is one third of the votes attributed to the national
Parliaments, which obliges the Commission to re-examine a proposal and decide whether to maintain, amend or withdraw
the proposal, and it must give reasons for its decision.
Questions:
1. Why did the Commission decide that the proposal does not breach the subsidiarity principle?
- the proposed action cannot be sufficiently achieved by the Member States’
- & ‘can rather, by reason of the scale or effects of the proposed action, be better achieved at
Union level.
5. It seems that some parliaments have voiced concerns about other issues than conformity with the
subsidiary principle, why would they do this?
Because it’s the only official procedure to argue their concerns about an act even though these don’t
handle about the principle of subsidiarity.
= political pressure in other aspects than subsidiarity.
III. The normative function of the EU: what does the EU do?
o The limits of the Union competences are governed by the principle of conferral
o The Union shall act only within the limits of the competences conferred upon it by the
Member States in the Treaties to attain the objectives set out therein
o Competences not conferred upon the Union in the Treaties remain with the Member
States (= only do what the treaties say they can do).
o The choice of legal basis is so crucial that EU institutions are under duties to:
- expressly identify the legal basis of an act intended to have legal effects
(CJEU, Case C-325/91, France v Commission)
- motivate choice of legal basis (Art. 296(2) TFEU)
o The Union shall act only within the limits of the competences conferred upon it
by the Member States in the Treaties to attain the objectives set out therein
(Art.5(2) TEU)
‘[In] the context of the organization of the powers of the Community the
choice of the legal basis for a measure may not depend simply on an
institution' s conviction as to the objective pursued but must be based on
objective factors which are amenable to judicial review [...]. Those factors
include in particular the aim and content of the measure.’ (CJEU, Case
300/89, Commission v. Council on ‘titanium dioxide’)
ii. Look for a legal basis in which the said initiative could be legally
‘grounded’
- Look for the legal basis matching the predominant objective (‘centre of
gravity’) (CJEU, Case 36/98, Spain v Council on ‘Danube River’)
o The authority of EU institutions to adopt legal acts ‘arises not only from an
express conferment by the Treaty [...] but may equally flow from [the]
provisions of the Treaty and from measures adopted, within the
framework of those provisions’(CJEU, Case 22/70, Commission v. Council
on ERTA)
o The procedure used is then the one advocated for by the very provision of
EU law from which the power flows
As will be discussed further in the last section of the course, EU law takes
o
precedence over domestic law (primacy) so that domestic law ought to
be interpreted in conformity with EU law and EU law ought to be given
full effect in domestic legal orders (= Costa Enel).
o Certain provisions of EU law, and of the TFEU in particular, are even
sufficiently clear, precise and unconditional so as to produce
autonomous legal effects, so-called ‘direct effect’, in domestic legal
orders.
o Through such mechanisms, EU law also influences or,at times, establishes
rights and obligations for public and private entities at domestic level.
3. The types of EU competences
o Reminder: competences not conferred upon the Union in the Treaties remain with
the Member States.
o The early provisions of the TFEU now provide general guidelines to understand the
overall interplay between EU and domestic competences, they classify EU
competences:
i. Exclusive competences
- Definition (Art.2(1) TFEU): ‘only the Union may legislate and adopt legally
binding acts’
Note: the Member States may act only if so empowered by the Union or for
the implementation of Union acts
o Definition (Art.2(2) TFEU): ‘the Union and the Member States may legislate
and adopt legally binding acts in that area’
= both can act in shared competences BUT this can be messy so pre-emption
is needed
o Definition (Art.2(5) TFEU): ‘In certain areas and under the conditions laid
down in the Treaties, the Union shall have competence to carry out actions
to support, coordinate or supplement the actions of the Member States’
‘The European Security and Defence Policy aims to strengthen the EU's external
ability to act through the development of civilian and military capabilities in
Conflict Prevention and Crisis Management.’
v. Reminder: the details depend on the actual legal basis (Art.2(6) TFEU)
o Art.5(1) TEU:
1. Subsidiarity
!! See abstracts from Protocol 1 on the Role of National Parliaments & Protocol No
2 on the application of the principles of subsidiarity and proportionality in
doc.analysis 8
3. How many reasoned opinions have been sent concerning the proposal for a
revision of the Posting of Workers Directive?
>19
4. Why did the Commission decide that the proposal does not breach the
subsidiarity principle?
- the proposed action cannot be sufficiently achieved by the Member States’
- & ‘can rather, by reason of the scale or effects of the proposed action, be better achieved at
Union level
5. It seems that some parliaments have voiced concerns about other issues than
conformity with the subsidiary principle, why would they do this?
Because it’s the only official procedure to argue their concerns about an act even
though these don’t handle about the principle of subsidiarity.
= political pressure in other aspects than subsidiarity.
Q&A toledo: Yellow and orange card procedure: When there is a bicameral system, is it obligatory
that every assemblee gets a vote or is there a choice at national level?
Yes, there is a choice at national level.
I also don’t understand how the votes are counted. Do the votes from different chambers in a
bicameral system have the same weight or are they together ‘one’? Here from flows the question
what the difference is between a ‘vote’ and a ‘reasoned opinion’. In the Posted Workers Directive
the Czech Senate ànd Chamber have given a reasoned opinion, so it correct to conclude that a vote
equals a reasoned opinion? So how many votes/reasoned opinions were necessary to send back
the Posted Workers Directive to the Council? (hb: 7-031, 14-010)
A reasoned opinion is a vote. But whether it counts for one or two votes depends on how the
domestic systems allocate the votes between the different chambers (if they have different
chambers). So, not all reasoned opinions count for one vote, some count for two votes if the MS in
question has given two votes one single assembly.
It was already a question in class, but I still don't understand what the difference is between a
reasoned opinion and a vote. A reasoned opinion is a vote
If a Member State sends a reasoned opinion, they automatically vote 'against' the draft legislative
act, right? Yes, see article 6 protocol n°2
So is the difference then that it can be one vote (when only one chamber was 'against') or two
votes (when the two chambers were 'against' or when it's a unicameral system)? See question
above, each MS is free to allocate its 2 votes as it wishes.
This is a question about the principle of subsidiarity. For the implementation of the principle, the
outline refers to the first and second protocol. But I don't really understand what national
parliaments can do if they think a draft legislative act doesn't comply with this principle, since
there isn't a yellow or orange card procedure available and they cannot send reasoned opinions.
(hb 7-031-7-032, 7-034, 7-039)
Protocol n1 is about the role of national parliaments.
Protocol n2 is about the application of the principles of subsidiarity and proportionality.
Outline 8b refers to both protocols for the implementation of the proportionality principle.
National parliaments can indeed not use the yellow/orange card procedure and cannot send
reasoned opinions on the principle of proportionality.
Note: What role for the CJEU?
2. Proportionality
o Function: “Proportionality […] only comes into play once it is decided that
[European Union] action is necessary and seeks to define its scope.” (T.
3. Mainstreaming duties
Q&A Toledo: This is a question about the implied powers. In class, there was an example discussed
about the external competences of the EU. The conclusion was that the EU can conclude
international agreements even when there isn't a specific competence in the Treaties, based on
the implied powers. But I don't understand why conclusion of international agreements has to be
explained with implied powers, when there is a specific article (art 216 TFEU) that gives the EU
competence to do it. (hb 7-017): This is simply because article 216(1) TFEU is a codification on the
earlier case law on implied powers.
How can we check the doctrine of the implied powers? With case law? And what is the legal basis
then?
Handbook 7-017. The doctrine of implied powers was explained by the Court for the first time in the
ERTA judgment and was later on codified in Article 216(1) TFEU.
About the flexibility clause. In art 352 TFEU, the special legislative procedure is mentioned. But
when is it necessary that the Council adopts the measures with this special legislative procedure?
(hb 7-018-7-019)
Reminder that article 352 TFEU can only be used if there is no other legal basis In the Treaty but
when there is still an EU objective to be achieved. When article 352 TFEU is combined with another
legal base, the relevant procedural requirements are to be combined.
About the competence of the EU with regard to the coordination of economic and employment
policies. Art 5(1) TFEU stipulates that the Council can adopt measures, broad guidelines. But I
didn't see how the European semester complied with this, because there it is the Commission who
makes the guidelines Or is the European semester not an application of this article?
Article 5(1) TFEU: The Member States shall coordinate their economic policies within the Union. To
this end, the Council shall adopt measures, in particular broad guidelines for these policies. Specific
provisions shall apply to those Member States whose currency is the euro.
It is not the Commission who makes the guidelines. The commission only makes proposals and
specific recommendations. It is the Council who sets out the general/broad guidelines.
In our book is mentioned that the list of shared competences isn't exhaustive, so does this mean
that there are other shared competences not mentioned in the list? I thought that all the
competences that were not explicitly mentioned in the treaties, belonged to the Member States?
It is indeed true that all competences not conferred upon the Union remain in the hands of the
Member States. The list is non-exhaustive because the list of ‘shared competences’ at the beginning
COURSE 9
CHAPTER 2 LEGAL ACTS OF THE UNION, ADOPTION PROCEDURES AND OTHER PROVISIONS
A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.
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.
A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on
them.
- Article 289
1. The ordinary legislative procedure shall consist in the joint adoption by the European Parliament and the Council
of a regulation, directive or decision on a proposal from the Commission. This procedure is defined in Article 294.
2. In the specific cases provided for by the Treaties, the adoption of a regulation, directive or decision by the
European Parliament with the participation of the Council, or by the latter with the participation of the European
Parliament, shall constitute a special legislative procedure.
4. (…)
2-3. (…)
- Article 291
1. Member States shall adopt all measures of national law necessary to implement legally binding Union acts.
2. 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.
DIRECTIVE (EU) 2016/680 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 27 April 2016 on the protection of
natural persons with regard to the processing of personal data by competent authorities for the purposes of the
prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the
free movement of such data
2. The principles of, and rules on the protection of natural persons with regard to the processing of their personal data
should, whatever their nationality or residence, respect their fundamental rights and freedoms, in particular their right to
the protection of personal data. This Directive is intended to contribute to the accomplishment of an area of freedom,
security and justice.
(…)
7.Ensuring a consistent and high level of protection of the personal data of natural persons and facilitating the exchange of
personal data between competent authorities of Members States is crucial in order to ensure effective judicial cooperation
in criminal matters and police cooperation. To that end, the level of protection of the rights and freedoms of natural
persons with regard to the processing of personal data by competent authorities for the purposes of the prevention,
investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including the
safeguarding against and the prevention of threats to public security, should be equivalent in all Member States.
. Article 16(2) TFEU mandates the European Parliament and the Council to lay down the rules relating to the protection of
natural person s with regard to the processing of personal data and the rules relating to the free movement of personal
data.
(…)
11. It is therefore appropriate for those fields to be addressed by a directive that lays down the specific rules relating to the
protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of
the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, including
the safeguarding against and the prevention of threats to public security, respecting the specific nature of those activities.
(…)
(…)
(…)
93. Since the objectives of this Directive, namely to protect the fundamental rights and freedoms of natural persons and in
particular their right to the protection of personal data and to ensure the free exchange of personal data by competent
authorities within the Union, cannot be sufficiently achieved by the Member States and can rather, by reason of the scale
or effects of the action, be better achieved at Union level, the Union may adopt measures, in accordance with the principle
of subsidiarity as set out in Article 5 of the TEU. In accordance with the principle of proportionality as set out in that Article,
this Directive does not go beyond what is necessary in order to achieve those objectives
Article 2 Scope
Article 3 Definitions
CHAPTER II Principles
1. The Commission shall be assisted by the committee established by Article 93 of Regulation (EU) 2016/679. That
committee shall be a committee within the meaning of Regulation (EU) No 182/2011.
2.-3.(…)
Article 63 Transposition
1. Member States shall adopt and publish, by 6 May 2018, the laws, regulations and administrative
provisions necessary to comply with this Directive. They shall forthwith notify to the Commission the text of those
provisions. They shall apply those provisions from 6 May 2018.
2. 2-3(…)
4.Member States shall communicate to the Commission the text of the main provisions of national law which they
adopt in the field covered by this Directive.
This Directive shall enter into force on the day following that of its publication in the Official Journal of the
European Union.
! art. 288 TFEU is not the legal basis: it’s just an article that explains the types of acts
Directive
DIRECTIVE (EU) 2016/680 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 27 April 2016
member states have to implement it in their own legal order
! directive is not always a legislative act: it can also be a delegated or implementing act
6 May 2018 (art 63): date of publishing = date of entry into force (art 64)
Detailed outline 9
ii. The special case of the European Convention for Human Rights (or ECHR)
- From a source of special significance for the assertion (handhaving) of general principles of
EU law...
- The origins: CJEU, Case 4/73, Nol
- Now in Art.6(3) TEU: ‘Fundamental rights, as guaranteed by the European
Convention for the Protection of Human Rights and Fundamental
Freedoms […] shall constitute general principles of the Union's law’.
There are three ways to distinguish between legislative and non-legislative acts:
COURSE 10
Document analysis 10 – VI.A. Internal Decision Making
The ordinary legislative procedure shall consist in the joint adoption by the European Parliament and the Council of a
regulation, directive or decision on a proposal from the Commission. This procedure is defined in Article 294.
Having regard to the Treaty on the Functioning of the European Union, and in particular Article 114 thereof,
After transmission of the draft legislative act to the national parliaments, Having regard to the opinion of the European
Economic and Social Committee, Acting in accordance with the ordinary legislative procedure,
Whereas:
(1)Council Directive 91/477/EEC 17 established an accompanying measure for the internal market. It created a balance
between on the one hand the undertaking to ensure a certain freedom of movement for some firearms within the Union,
and on the other the need to control this freedom using security guarantees suited to this type of product.
(2)As a response to recent terrorist acts which demonstrated gaps in the implementation of Directive 91/477/EEC especially
with regard to deactivation of weapons, convertibility and marking rules, the "European Agenda on Security" adopted in
April 2015 and the Declaration of the Home Affairs Ministers Council of 29 August 2015 called for the revision of that
Directive and for a common approach on the deactivation of firearms to prevent reactivation and use by criminals.
[…]
(16)In order to ensure uniform conditions for the implementation of this Directive, implementing powers should be
conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the
European Parliament and of the Council 18 .
(18)Since the objectives of this Directive cannot be sufficiently achieved by the Member States, but can rather, by reason of
the scale and effects of the action, be better achieved at Union level, the Union may adopt measures, in accordance with
the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of
proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those
objectives.
Questions:
Detailed analysis 10
2. Secondary law
= sets out on primary law
= 2 big categories: international agreements between EU and third states and
legislative acts.
b. Legislative acts
o Legislative acts defined in procedural terms: Legal act adopted by legislative
procedure, the ordinary procedure is most common.
o Legal acts adopted by legislative procedure shall constitute legislative acts
(Article 289(3) TFEU)
o Legislative acts may take the form of legal acts described in Article 288 TFEU
(see below): directive, decision & regulation: these can be based on the
legislative acts BUT also on the tertiary acts!!
3. ‘Tertiary law’
ii. Legal acts non listed in Article 288 TFEU Communications, white and
green papers Interinstitutional agreements (Art.295 TFEU)
- Communications, white and green papers
- Interinstitutional agreements (Art.295 TFEU)
E. The dynamics of the EU legal order: examples from the rules on free movement in the EU:
In practice, EU competences can be more far reaching than the text of the EU Treaties
suggests: examples
b. Example of the impact that a directly effective provision of EU law may have on
domestic competences
Article 34 TFEU is capable of direct effect: ‘Quantitative restrictions on imports [of
goods] and all measures having equivalent effect shall be prohibited between
Member States’
Article 36 TFEU further clarifies: ‘The provisions of Articles 34 and 35 shall not
preclude prohibitions or restrictions on imports, exports or goods in transit justified
on grounds of public morality […]’
2 Those questions were raised in proceedings concerning the seizure by the United
Kingdom customs authorities of various consignments of goods imported from the
Federal Republic of Germany by Conegate Limited (hereinafter referred to as
Conegate). In the course of an inspection at the airport where the consignments
arrived, customs officials discovered that the goods consisted essentially of
inflatable dolls which were clearly of a sexual nature and other erotic articles.
They considered these goods to be 'indecent or obscene' articles whose
importation into the United Kingdom is prohibited under section 42 of the
Customs Consolidation Act 1876.
[…]
13. The Court would observe that the first question raises, in the first place, the
general problem of whether a prohibition on the importation of certain goods may
be justified on grounds of public morality where the legislation of the Member
State concerned contains no prohibition on the manufacture or marketing of the
same products within the national territory.
14. So far as that problem is concerned, it must be borne in mind that according to
Article 36 of the EEC Treaty (now Article 36 TFEU) the provisions relating to the free
movement of goods within the Community do not preclude prohibitions on imports justified
'on grounds of public morality. As the Court held in its judgment of 14 December
1979, cited above, in principle it is for each Member State to determine in
accordance with its own scale of values and in the form selected by it the
requirements of public morality in its territory.
15. However, although Community law leaves the Member States free to make their
own assessments of the indecent or obscene character of certain articles, it must be
pointed out that the fact that goods cause offence cannot be regarded as sufficiently
serious to justify restrictions on the free movement of goods where the
Member State concerned does not adopt, with respect to the same goods manufactured
or marketed within its territory, penal measures or other serious and
effective measures intended to prevent the distribution of such goods in its territory.
16. It follows that a Member State may not rely on grounds of public morality in
order to prohibit the importation of goods from other Member States when its
legislation contains no prohibition on the manufacture or marketing of the same
goods on its territory.
17. It is not for the Court, within the framework of the powers conferred upon it by
Article 177 of the EEC Treaty (now Article 267 TFEU), to consider whether, and to what
extent, the United Kingdom legislation contains such a prohibition. However, the question
whether or not such a prohibition exists in a State comprised of different
constituent parts which have their own internal legislation, can be resolved only by
taking into consideration all the relevant legislation. Although it is not necessary,
for the purposes of the application of the above-mentioned rule, that the manufacture
and marketing of the products whose importation has been prohibited
should be prohibited in the territory of all the constituent parts, it must at least be
18. In this instance, in the actual wording of its first question the High Court took
care to define the substance of the national legislation the compatibility of which
with Community law is a question which it proposes to determine. Thus it refers to
rules in the importing Member State under which the goods in question may be
manufactured freely and marketed subject only to certain restrictions, which it sets
out explicitly, namely an absolute prohibition on the transmission of such goods by
post, a restriction on their public display and, in certain areas of the Member State
concerned, a system of licensing of premises for the sale of those goods to
customers aged 18 years and over. Such restrictions cannot however be regarded
as equivalent in substance to a prohibition on manufacture and marketing.
19. At the hearing, the United Kingdom again stressed the fact that at present no
articles comparable to those imported by Conegate are manufactured on United
Kingdom territory, but that fact, which does not exclude the possibility of manufacturing
such articles and which, moreover, was not referred to by the High
Court, is not such as to lead to a different assessment of the situation.
20. In reply to the first question it must therefore be stated that a Member State may
not rely on grounds of public morality within the meaning of Article 36 of the Treaty (now
Article 36 TFEU) in order to prohibit the importation of certain goods on the grounds that
they are indecent or obscene, where the same goods may be manufactured freely on its
territory and marketed on its territory subject only to an absolute prohibition on their
transmission by post, a restriction on their public display and, in certain regions, a system of
licensing of premises for the sale of those goods to customers aged 18 and over.
21. That conclusion does not preclude the authorities of the Member State concerned
from applying to those goods, once imported, the same restrictions on marketing
which are applied to similar products manufactured and marketed within the
country.
Eg. Directive 2004/38/EC of the European Parliament and of the Council of 29 April
2004 on the right of citizens of the Union and their family members to move and
reside freely within the territory of the Member States http://eur-
lex.europa.eu/legal-content/EN/TXT/?qid=1477042140290&uri=CELEX:32004L0038
Note: Competences of the EU in the field of the internal market are shared with the
Member States (Article 4(2)(a) TFEU)
Q&A Toledo: What is the difference between transposition period and entry into force?
Handbook: 22-078
Transposition period: For a directive to take effect at national level, EU countries must adopt a law to
transpose it. This national measure must achieve the objectives set by the directive. National
authorities must communicate these measures to the European Commission. EU countries have
room for manoeuvre in this transposition process. This allows them to take into account specific
national characteristics. Transposition must take place by the deadline set when the directive is
adopted (generally within 2 years).
Entry into force: the date from which the Directive applies in all Member States. Member States are
given a transposition period of generally 2 years in which they can transpose the Directive into their
national law.
2. The Council shall authorise the opening of negotiations, adopt negotiating directives, authorise the signing of agreements
and conclude them.
3. The Commission, or the High Representative of the Union for Foreign Affairs and Security Policy where the agreement
envisaged relates exclusively or principally to the common foreign and security policy, shall submit recommendations to the
Council, which shall adopt a decision authorising the opening of negotiations and, depending on the subject of the
agreement envisaged, nominating the Union negotiator or the head of the Union's negotiating team.
[…]
6. The Council, on a proposal by the negotiator, shall adopt a decision concluding the agreement.
Except where agreements relate exclusively to the common foreign and security policy, the Council shall adopt the decision
concluding the agreement:
(a) after obtaining the consent of the European Parliament in the following cases:
(i) association agreements;
(ii) agreement on Union accession to the European Convention for the Protection of Human Rights and Fundamental
Freedoms;
(iii) agreements establishing a specific institutional framework by organising cooperation procedures;
(iv) agreements with important budgetary implications for the Union;
(v) agreements covering fields to which either the ordinary legislative procedure applies, or the special legislative
procedure where consent by the European Parliament is required.
The European Parliament and the Council may, in an urgent situation, agree upon a time-limit for consent.
(b) after consulting the European Parliament in other cases. The European Parliament shall deliver its opinion within a time-
limit which the Council may set depending on the urgency of the matter. In the absence of an opinion within that time-limit,
the Council may act.
[…]
10. The European Parliament shall be immediately and fully informed at all stages of the procedure.
11. 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.
At the 21st Conference of the Parties to the United Nations Framework Convention on Climate Change (UNFCCC), which
took place in Paris from 30 November to 12 December 2015, the text of an agreement was adopted, concerning the
mixed agreement
2. Which decision making procedure has been followed in order to adopt the Paris agreement?
3. What is the importance of the EU acting as a dynamic actor on the international scene instead of
the Member States separately?
Detailed Outline 11
IV. The exercise of the normative function of the European Union: How do European union
insitutions….
= Chapter 16, 16-001 to 16-041 & Chapter 17, only sections 17-006 to 17-019.
A. Internal decision making : how do they make decisions that are binding within the EU
o Reminder:
- Historical evolution of decision-making procedures reflecting increasing
involvement of the EP
- Importance of the choice of legal basis
- Distinction between secondary and tertiary law + binding instruments
defined in Art.288 TFEU (regulation, directive or decision)
Q&A Toledo: I have a question about the internal decision making of the European Union. In
chapter 17 in the book, there is something mentioned as 'comitology' (17-012), but I don't really
understand what it is and what all the types of procedures are. This was never mentioned in class I
think, so I don't know if this is important or not?
The term ‘comitology’ (alles hetgeen samenhangt met de verschillende comités die de
tenuitvoerlegging van het EU-beleid controleren) refers to the set of procedures through which the
European Commission exercises the implementing powers conferred on it by the EU legislator, with
the assistance of committees of representatives from EU countries. Such comitology committees are
chaired by a Commission official and give an opinion on implementing acts proposed by the
Commission.
• examination and
• advisory.
The choice of procedure for a committee is made by the EU legislator, and depends on the nature of
the implementing powers that are laid out in the basic regulation, directive or decision.
Doc.analysis.10. What is the legal base for the proposal for the Proposal for a Directive amending Council
Directive 91/477/EEC on control of the acquisition and possession of weapons?
=> this indicates what kind of adoption procedure that should be followed
a. Legislative initiative
o Ordinary procedure is most common for adoption of EU acts: co-decision:
council & parliament co-decide on an equal foot special procedure: less
common: special legal bases: adopted by the council with participation of
Parliament (NO co-decision!!!)
The result is always adopting a legislative act from the commission, there
are exceptions where other institutions also can adopt acts.
o In principle, exclusivity of legislative initiative for the Commission within the
TFEU (Art.17(2) TEU & Art.289(1) TFEU):
- Commission decides whether or not to submit a legislative proposal +
determines its subject-matter, objective and content
- In certain cases however, initiatives may come from elsewhere
(Art.289(4) TFEU: a group of Member States, EP, ECB, CJ or European
Investment Bank -> if so, specific rules apply for the ordinary legislative
procedure see Art.294(15) TFEU)
- The EP may also amend the proposal in the context of the ordinary
procedure as explained in Art.294 TFEU & below
- Throughout the procedure the Commission seeks to steer the proposal
forward and facilitate compromises (eg. in the Conciliation Committee
below, Art.294(11) TFEU)
Note:
o the Commission frames the initial proposal (= completely free toput a legislative proposal on
the table BUT other institutions can influence the leg. Initiative, e.g. citizens initiaitive) + the
Council needs unanimity to depart from the Commission’s position in first reading (ie. if the
Commission does not accept and incorporate the EP amendments in an amended proposal)
+ again in second reading after the Commission has given its negative opinion on EP
amendments
o the EP can reject Council amendments (by majority of its component members)
o the Council can only adopt texts that receive implicitly or explicitly approval of the EP.
Commission, EP and Council may (Art.295 TFEU) and indeed do conclude interinstitutional
agreements to make further arrangements for their cooperation.
o Practice of trilogues: tripartite meetings with by representatives (small groups) from EP,
Council and Commission
d. Formal requirements for legislative acts to finally enter into force (Art.297(1) TFEU)
Doc.analysis.10. Which legislative procedure needs to be followed for the adoption of the Proposal
for a Directive amending Council Directive 91/477/EEC on control of the acquisition and possession
of weapons?
Doc.analysis.10. Which institutions are involved in the adoption of this Proposal and in which
ways?
- proposal by commission
Doc.analysis.10. At which stage of the adoption procedure is the proposal at this moment?
the commission has put forward a proposal, but Council and parliament haven’t adopted yet
o One can follow the procedure for adoption of an EU act through eur-lex. For instance here:
http://eur-lex.europa.eu/legal-
content/EN/HIS/?uri=CELEX:52015PC0750&qid=1475574837982
Judgment of the Court of 15 July 1964. - Flaminio Costa v E.N.E.L.. - Reference for a
preliminary ruling: Giudice conciliatore di Milano - Italy. - Case 6/64. [selected abstracts]
Background
Mister Costa was an Italian citizen who owned some shares of the Edison Volta company.
Italy had nationalized the production and distribution of electric energy in 1962 and created
the ENEL company. Because Mister Costa was opposed the nationalization of Edison Volta,
he decided to not pay one of his bills. As a consequence, ENEL initiated proceedings against
Mister Costa for non-payment. Mister Costa asked the Giudice Conciliatore (the national
court) to refer a preliminary question to the Court of Justice for interpretation of several EEC
provisions. He believed that the nationalization of 1962 was contrary to Community law.
Parties
In Case 6/64
Reference to the Court under Article 267 TFEU by the Giudice Conciliatore, Milan, for a
preliminary ruling in the action pending before that court between Flaminio Costa and ENEL
(Ente Nazionale Energia Elettrica (national electricity board), formerly the Edison Volta
undertaking)
Grounds
By order dated 16 January 1964, duly sent to the Court, the Giudice Conciliatore of Milan, '
having regard to Article 267 TFEU incorporated into Italian law by law n.1203 of 14 Uctober
1957, and having regard to the allegation that law n.1643 of 6 December 1962 and the
presidential decrees issued in execution of that law infringe articles […] 37 of the
aforementioned treaty ', stayed the proceedings and ordered that the file be transmitted to
the Court of Justice. […]
On the submission that the court was obliged to apply the national law
The Italian government submits that the request of the Giudice Conciliatore is ' absolutely
inadmissible ', inasmuch as a national court which is obliged to apply a national law cannot
avail itself of Article 267 TFEU.
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.
By creating a Community of unlimited duration, having its own institutions, its own
personality, its own legal capacity and capacity of representation on the international plane
and, more particularly, real powers stemming from a limitation of sovereignty or a transfer
of powers from the states to the Community, the member states have limited their
sovereign rights, albeit within limited fields, and have thus created a body of law which
binds both their nationals and themselves.
The integration into the laws of each member state of provisions which derive from the
community, and more generally the terms and the spirit of the treaty, make it impossible for
the states, as a corollary, to accord precedence to a unilateral and subsequent measure over
a legal system accepted by them on a basis of reciprocity. such a measure cannot therefore
be inconsistent with that legal system. the executive force of Community law cannot vary
from one state to another in deference to subsequent domestic laws, without jeopardizing
the attainment of the objectives of the Treaty set out in Article 4(3) and giving rise to the
discrimination prohibited by Article 18.
The obligations undertaken under the Treaty establishing the Community would not be
unconditional, but merely contingent, if they could be called in question by subsequent
legislative acts of the signatories. wherever the Treaty grants the states the right to act
unilaterally, it does this by clear and precise provisions […]. applications, by member states
for authority to derogate from the Treaty are subject to a special authorization procedure
[…] which would lose their purpose if the member states could renounce their obligations by
means of an ordinary law.
The precedence of Community law is confirmed by Article 288, whereby a regulation ' shall
be binding ' and ' directly applicable in all member states '. this provision, which is subject to
no reservation, would be quite meaningless if a state could unilaterally nullify its effects by
means of a legislative measure which could prevail over community law.
It follows from all these observations that 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 states from their domestic legal system to the Community legal system of
their sovereign rights, against which a subsequent unilateral act incompatible with the concept
of the Community cannot prevail. Consequently Article 267 is to be applied regardless of any
domestic law, whenever questions relating to the interpretation of the Treaty arise. […]
Operative part
The Court
ruling upon the plea of inadmissibility based on Article 267 hereby declares :
as a subsequent unilateral measure cannot take precedence over Community law, the
questions put by the Giudice Conciliatore, Milan, are admissible in so far as they relate in
this case to the interpretation of provisions of the EEC Treaty;
and also rules: […]
Article 37( 2 ) is in all its provisions a rule of Community law capable of creating individual
rights which national courts must protect.
In so far as the question put to the Court is concerned, it prohibits the introduction of any
new measure contrary to the principles of Article 37(1), that is, any measure having as its
object or effect a new discrimination between nationals of member states regarding the
conditions in which goods are procured and marketed, by means of monopolies or bodies
which must, first, have as their object transactions regarding a commercial product capable
of being the subject of competition and trade between member states, and secondly must
play an effective part in such trade; […]
Detailed Outline 12
Note:
The objectives, content, scope and duration of the delegation of power shall be
explicitly defined in the legislative acts -> legal basis for the delegated act
The essential elements of an area shall be reserved for the legislative act (and
accordingly shall not be the subject of a delegation of power) (= has to be decided
by the legislator, may not be delegated).
o Procedure for adoption (see Art.291(2-3) TFEU: most of the time it’s the
commission who adopts implementing acts).
• Implementation powers are normally conferred on the Commission (but
in duly justified specific cases + Articles 24 and 26 TEU on the Council, =
exceptional)
• Regulation (EU) No 182/2011 of the European Parliament and of the
Council of 16 February 2011 laying down the rules and general principles
concerning mechanisms for control by Member States of the
Commission’s exercise of implementing powers
• Commission assisted by a committee (because the MS are normally in
charge of implementing EU law) composed of representatives of the
Member States whose role varies:
i. Examination procedure
Q&A Toledo: About implementing acts. When do you know when an examination procedure is
required? Because the scope of application is ‘ acts of general scope and programmes with
substantial implications’, what I think is kind of vague.
c. Formal requirements for non-legislative acts to finally enter into force (Art.297(2)
TFEU)
o Signed by the President of the institution who adopted the act
o Publication in the Official Journal of the European Union
o Publically available: at http://eur-lex.europa.eu/oj/direct-access.html
o In all official languages of the EU
o Entry into force on the date specified or, in the absence thereof, on the 20th
day following publication
(Note: instruments which specify to whom they are addressed, shall be notified to those
to whom they are addressed and shall take effect upon such notification)
3. The special case of the EU budgetary procedure: how do the EU institutions agree on
the EU budget?
= very special procedure: how to allocate EU resources to different objectives.
o The EP and the Council agree on the Union’s budget according to a specific
procedure.
o We will not examine it in the context of this course. If interested, you may find
a concise overview from Rita Calatozzolo (9.2016) at:
http://www.europarl.europa.eu/ftu/pdf/en/FTU_1.4.3.pdf (optional reading).
Note: EP (has to give their consent) has in these circumstances also a say in external
relations.
Q&A Toledo: About external decision making. I don’t really understand the link between mixed
agreements and exclusive/shared competences. If the conclusion of a certain agreement is a
shared competence, I would think that a member state only can conclude this agreement when the
union has not exercised its competence (principle of pre-emption, art 2 (2) TFEU) So I would say
there only can be a mixed agreement when the union has not exercised its competence. Is this
correct? (1) If it is, then it would be logical that a mixed agreement isn’t possible when there is an
exclusive competence? (2)
Very good question but beyond the scope of this course. See Handbook 26-014 which explains the
rationale behind mixed agreements.
(1) not per se, the reason for concluding mixed agreements is because close cooperation is
required between the Union institutions and the Member States because the subject-matter of
an agreement appears to fall partly within the competence of the Union and partly within that of
the Member States.
Doc.analysis.11. Which type of legal instrument is the so-called ‘Paris agreement (=international
agreement)’? = mixed agreement, MS also parties (VN, EU + third states)
Doc.analysis.11. Which decision making procedure has been followed in order to adopt the Paris
agreement?: art. 216 TFEU: requires consent of the EP
Doc.analysis.11. What is the importance of the EU acting as a dynamic actor on the international
scene instead of the Member States separately? Much stronger negotiation power
Special calculations for voting arrangements at the Council when not all MS are involved No
such arrangements at the European Parliament, all MEPS are always involved (even if they
vote about policy where not all the MS all involved).
Commission?
Always
CJEU?
COURSE 13
The Ledra judgment is a recent preliminary ruling on the financial aid granted to Cyprus by the
European Stability Mechanism (hereafter: ESM).
The ESM is a financial support mechanism, as it is able to grant e.g. loans to States in financial
difficulties. The aim of the ESM is to safeguard the financial stability of the Eurozone as a whole and
Whenever a State requests assistance from the ESM, the Commission (in liaison with the ECB and
the International Monetary Fund - which is a non-EU organ) is mandated by the Board of Governors
of the ESM to negotiate a ‘Memorandum of Understanding’ with the assisted Member State. This
Memorandum of Understanding lays down the conditions which have to be fulfilled by the
assisted Member State if it wishes to be granted financial aid. Afterwards, the Commission signs
the Memorandum of Understanding on behalf of the ESM and subject to the conditions set out by
the Board of Governors of the ESM.
This is what happened in Cyprus: In 2012, two large Cypriot banks ran into financial difficulties. The
Cypriot government decided that is was necessary to ask financial assistance from the ESM. Assistance
was granted. One of the measures decided upon in the Memorandum of Understanding was called a
“bank deposit levy”. This meant that a levy would be applied to all bank deposits above
100.000 euro. Because of this levy many Cypriot individuals and companies lost a large amount of
their deposits. Ledra Advertising is one of these companies. Ledra therefore initiated an action
before the General Court for damages against the Commission and the ECB (the claim related to
the ECB is not further discussed in this document analysis) and an action for annulment of several
paragraphs of the Memorandum of Understanding.
The General Court dismissed both actions and the case was appealed before the Court of Justice.
Below you will find abstracts from the ruling by the Court of Justice (at the stage of the appeal) in the
Ledra case.
European Commission and European Central Bank (ECB) defendants at first instance,
By their appeals, Ledra Advertising Ltd, asks the Court to set aside, the orders of the General Court of
the European Union of 10 November 2014, Ledra Advertising v Commission and ECB, by which the
General Court declared in part inadmissible and in part unfounded their actions seeking, first,
annulment of paragraphs 1.23 to 1.27 of the Memorandum of Understanding concluded between
Cyprus and the ESM on 26 April 2013 and, secondly, compensation for the damage pleaded by the
appellants resulting from the inclusion of those paragraphs in the Memorandum of Understanding
and an infringement of the European Commission’s supervisory obligation.
The Commission and the ECB contend that the Court should:
(b) dismiss the appeals;
(c) order the appellants to pay the costs.
The General Court noted, that the Memorandum of Understanding was adopted jointly by the ESM
and Cyprus and that, the Commission signed it only on behalf of the ESM. Then […] the General Court
pointed out, that, whilst the ESM Treaty entrusts the Commission […] with certain tasks relating to
the implementation of the objectives of that Treaty, the duties conferred on the Commission […]
within the ESM Treaty do not entail any power to make decisions of [its] own and, moreover, the
activities pursued by [the Commission] within the ESM Treaty commit the ESM alone.
It should be recalled that, the Commission [was] entrusted with the task of negotiating with the
Cypriot authorities a macro-economic adjustment programme to be set out in the form of a
memorandum of understanding. When the Commission […] participated in the negotiations with the
Cypriot authorities, [it] acted within the limits of the powers granted to [it] by the ESM Treaty.
Participation of the Commission […]in the procedure resulting in the signature of the Memorandum
of Understanding does not enable the latter to be classified as an act that can be imputed to [it].
[T]he duties conferred on the Commission […] within the ESM Treaty, do not entail any power to
make decisions of [its] own. Furthermore, the activities within the ESM Treaty commit the ESM
alone. In addition, the fact that one or more institutions of the European Union may play a certain
role within the ESM framework does not alter the nature of the acts of the ESM, which fall outside
the EU legal order.
However, whilst such a finding is liable to have an effect in relation to the conditions governing the
admissibility of an action for annulment that may be brought on the basis of Article 263 TFEU, it
cannot
prevent unlawful conduct linked, to the adoption of a memorandum of understanding on behalf of
the ESM from being raised against the Commission […] in an action for compensation (or an action
for damages) under Article 268 TFEU and the second [paragraph] of Article 340 TFEU.
It follows that the General Court erred in law […] by holding, on the basis merely of the finding that
the adoption of the disputed paragraphs could not formally be imputed to the Commission […], that
it did not have jurisdiction to consider an action for compensation based on the illegality of those
paragraphs.
The appeals should therefore be upheld and the orders under appeal set aside.
3. What is the mechanism (other than annulment action) that the Court of Justice decides
to rely upon in order to ensure a certain degree of judicial review of the actions of the
Commission even outside of the EU legal order ?
EU liability in damages may be available for acts by the commission outside the legal order
V. THE UNIQUE NATURE OF THE EUROPEAN UNION LEGAL ORDER: WHY AGAIN?
= in this last section we will discuss once again (in detail) the unique legal order and how
EU law “penetrates” in our domestic law.
A. The EU legal order is ‘integrated’ in that of the Member States: EU law has unique effects in
domestic legal orders
= Chapter 21, 21-001 to 21-021 and 21-055 to 21-059 & chapter 22: 22-080 to 22-094.
1. The principle of primacy and its derivatives: EU law takes precedence over domestic
law:
EU law > domestic law
a. Primacy
o Definition:
- No legal act about it.
- Origins & rationale: CJEU, Case 6/64, Costa v. ENEL See abstracts in
doc.analysis.12.
- doc.analysis.12.What is the reasoning of the CJEU that allows it to
assert the primacy of EU law?
Article 267 TFEU, teleological reasoning: CJEU have jurisdiction to
give preliminary rulings and decided EU law above domestic law.
In that way the CJEU can underline purposes of the Treaties. The MS
have given competences to the EU so they need to comply with it.
BUT CJEU has to look and comply with the objectives of the Treaties
(art. 288 TFEU).
- doc.analysis.12.What is the difference between Union law
(Community law) and international law?
No primacy of international law, international law is dependent of
the various national systems. In EU law, Costa takes precedence
over domestic law in every case and every MS, so no distinction
between dualist & monist!
Note: Simmenthal: EU law takes primacy even over earlier national
law! MS have to implement the European acquis.
- doc.analysis.12. How does this relate to the concepts of monism and
dualism?
After Costa v. ENEL it doesn’t make a difference between monism
and dualism. EU law takes precedence over all national law.
o Reach of the primacy of EU law for the dynamics of the EU legal order
- CJEU, Case 106/77 Simmenthal [1978] ECR 629: MS constitution will
recognize EU law as primacy law.
Note: the primacy of EU law also applies to national constitutional norms for
the dynamics of the EU legal order.
SO: CJEU rules that EU law presents the constitutional courts BUT felt that
the constitutional foundations were threatened and provided ex ante and ex
post solutions:
o National authorities may not adopt rules that would run contrary to EU law (this was the
case Costa).
o National rules running contrary to EU law must be annulled or repealed:
o National rules contrary to directly effective provisions of EU law (subject to what was
discussed in sub-section 2 below) ought to be set aside
- CJEU, Case 106/77 Simmenthal [1978] ECR p.629
- CJEU, Case C-213/89 Factortame [1990] ECR p.I-2433: if there is a conflict
between Union & national law: you have to set aside the national rule, CJEU
don’t care how this system is ruled in the MS. EU law always comes first.
Q&A Toledo: Professor Muir stressed the fact that there is a distinction between the expiry of the
transposition period and the date of the entry into force of a directive. I don’t really see what it is
important for, except for the duty of consistent interpretation (adeneler case) (only applicable
before the expiry of the transposition period) and the fact that there is only direct effect of a
directive possible after the expiry of the transposition period.
Certain forms of Direct effect of Directives: after the expiry of the transposition/implementation
period = correct
107 As is apparent from the grounds of the order for reference, this question is essentially designed
to determine – where a directive is transposed belatedly into a Member State’s domestic law and the
relevant provisions of the directive do not have direct effect – the time from which the national
courts are required to interpret rules of domestic law in conformity with those provisions.
Specifically, the referring court is unsure whether the relevant point in time is the date on which the
directive in question was published in the Official Journal of the EuropeanCommunities and which
corresponds to the date on which it entered into force for the Member States to which it was
addressed, the date on which the period for transposing the directive expired or the date on which
the national provisions implementing it entered into force.
108 When national courts apply domestic law, they are bound to interpret it, so far as possible, in
the light of the wording and the purpose of the directive concerned in order to achieve the result
sought by the directive and consequently comply with the third paragraph of Article 249 EC (see,
inter alia, Joined Cases C-397/01 to C-403/01 Pfeiffer and Others [2004] ECR I-8835, paragraph 113,
and the case-law cited). This obligation to interpret national law in conformity with Community law
concerns all provisions of national law, whether adopted before or after the directive in question
(see, inter alia, Case C-106/89 Marleasing [1990] ECR I-4135, paragraph 8, and Pfeiffer and Others,
paragraph 115).
109 The requirement for national law to be interpreted in conformity with Community law is
inherent in the system of the Treaty, since it permits national courts, for the matters within their
jurisdiction, to ensure the full effectiveness of Community law when they determine the disputes
before them (see, inter alia, Pfeiffer and Others, paragraph 114).
123 It follows that, from the date upon which a directive has entered into force, the courts of the
Member States must refrain as far as possible from interpreting domestic law in a manner which
might seriously compromise, after the period for transposition has expired, attainment of the
objective pursued by that directive.
124 In light of the foregoing reasoning, the answer to the first question must be that, where a
directive is transposed belatedly into a Member State’s domestic law and the relevant provisions of
the directive do not have direct effect, the national courts are bound to interpret domestic law so far
as possible, once the period for transposition has expired, in the light of the wording and the purpose
of the directive concerned with a view to achieving the results sought by the directive, favouring the
interpretation of the national rules which is the most consistent with that purpose in order thereby
to achieve an outcome compatible with the provisions of the directive.
Q &A Toledo: Is it correct to say that you only can have state liability on damages, if the
norm you are calling upon has direct effect? If the norm hasn’t direct effect you won't be
able to call upon it ? Or are there other possibilities ? So if a directive its implementing
period has been over, and the norm was not correctly implemented this means that the
only way to obtain reparation is via state liability? But first we need to be sure that that
norm has direct effect ? Otherwise we cannot use state liability?
In order to be granted damages and hold a Member State liable, three cumulative conditions
have to be fulfilled (Judgments in Brasserie du Pecheur and Factortame):
Need for a direct causal link between the breach and the damage suffered by the injured
parties
In order to be capable of producing direct effect, a provision of EU law must satisfy two
cumulative effects:
This means that there is an overlap in the conditions required for direct effect and for state
liability. However in order to be granted state liability the provision does not have to have
direct effect.!
COURSE 14
Detailed outline 14
2. The principle of direct effect: EU law may be invoked directly before domestic courts
o The principle of direct effect = fundamental principle
o Definition:
The ability of a provision of EU law to confer rights and obligations to
individuals which may be enforced (directly) before national courts.
E.g.: Easier way to claim damages from the state because then you only have
to prove a sufficient serious breach.
o Origins & rationale: CJEU, Case 26/62, van Gend & Loos:
“To ascertain whether the provisions of an international treaty extend so far
in their effects it is necessary to consider the spirit, the general scheme and
the wording of those provisions.
The objective of the EEC Treaty, which is to establish a common market, the
functioning of which is of direct concern to interested parties in the
Community, implies that this Treaty is more than an agreement which
merely creates mutual obligations between the contracting states. […]
[…][T]he 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.
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.
B. The EU legal order is developing special relationships with other international legal orders:
The EU is increasingly asserting itself on the international scene
Keep in mind that the reason why EU law is so special is that it has an
enormous weight on the international scene, not only its internal
mechanism: EU is unique: 28 MS speaking with one voice!
1. Three types of international agreements interact in various ways with the EU legal
order
a. International agreements concluded by the EU are binding on the EU and its
Member States (see section on ‘secondary law’)
b. International agreements signed by the Member States before accession to the EU
may have an influence on EU law (see section on ‘Other specific sources of law
relevant for the EU legal order’).
c. EU States may conclude international agreements outside of the EU Treaties (see
section on ‘Beyond EU states and institutions?’).
2. The unique position of the EU legal order cuts across these various settings: examples
a. The EU & international human rights instruments (see section on the European
Convention for Human Rights in ‘The protection of fundamental rights in the EU
legal order’).
b. The EU and the law of the United Nations (see section on ‘Other specific sources of
law relevant for the EU legal order’)
c. The EU and international economic law (see above on the conditions for direct
effect of international agreements)
d. The EU and international financial crisis (eg. see the materials discussed in
document analysis 13, below)
o Reminder:
- EU implementing acts set uniform conditions for implementing legally
binding Union acts
- See discussion of implementing acts and procedure for their adoption
iii. Infringement actions once before the CJEU (Article 260 TFEU)
o Finding of an infringement of EU law by the CJEU
o Limited defenses available to the Member
States: best argument the MS can do: dispute on
the interpretation: I just understand the EU law
the same way the commission does.
o What if the State does comply during the procedure?
o Failure by a Member State to comply with a ruling of the
CJEU: declarates: you are in breach with EU law.
o 2nd infringement action
o Simplified procedure: no need for a reasoned
opinion
o Lump sum and/or penalty payment (per day) (no
annulment of national measures!: CJEU is neer
competent to annul national acts but can impose
a lump sum: fine).
o Reminder:
- primacy (its consequences) & direct effect
- national judges as ordinary union judges -> may suspend the
proceedings before them and turn to the CJEU as follows (=may decide
at any time to put the proceedings at hold and turn on the CJEU to ask
preliminary questions).
iv. …may NOT ask the CJEU to solve the domestic dispute
o Can only clarify the EU interpretation + is it valid or not?
v. Possibility v. obligation for national court or tribunal to refer : may or must?
o In principle, referral is optional (eg. no duty to refer on request by
the parties) + domestic rules may not hinder the possibility to refer
o By way of exception, there is however a duty to refer when:
Questions raised before a court or tribunal against whose
decisions there is no judicial remedy: Article 267 (5) TFEU
(Court or tribunal of least instance? Then there is a duty to ask
a preliminary question).
Questions challenging the validity of an EU act (CJEU, Case
314/85, Foto-Frost): if the question relates to the validity of an
EU act.
Note:
Extra questions:
• The detailed outline, under the part of centralised monitoring, says that the EU legislature
can decide to regulate the implementation of EU law. I don’t really understand how this
works. Does this relate to the implementing acts of the Commission?
In essence, it is for the EU legislature to decide on whether or not to confer implementing powers to
the Commission. In certain cases, the legislature may decide to itself provide guidance on how
implementation should take place at national level (eg. By suggesting the use of criminal sanctions in
cases of breaches of certain provisions of EU environmental legislation)
• About the enforcement action. The CJEU is still able to continue the procedure when the
member state complies during the procedure. I don’t really understand why. In class was
said that this was because of the possibility to award a lump sum, but isn’t this only
possible when the member state fails to comply with the judgment and a second
infringement action is brought by the commission?
See if failure relates to non-notification of transposition measures (next question). Another added
value may be that a finding of a breach of EU law by the CJEU may facilitate and action in damages at
national level under the Francovich doctrine for interested parties.
The procedure of article 260(2) TFEU must be distinguished from that of article 260(3) TFEU
260 (2) TFEU concerns a second action before the Court concerning a member State’s alleged non-
compliance with the first judgment finding an infringement
260 (3) TFEU is situated in the context of the first action brought under 258 TFEU concerning a
Member State’s failure to notify measures transposing a legislative directive whereby the
Commission may ask the Court to find an infringement and to impose a pecuniary sanction at the
same time; hence, a reasoned opinion is required for 260 (3)
• Is it possible to explain the notion of 'dual vigilance'? I don’t understand the concept of
Dual vigilance. Because Professor Muir said something about two branches, but I don’t
understand that.
Dual vigilance means that either a Member State or institution can be sued by another Member State
or institution before the CJEU, but also that an individual can challenge a Member State in their
national court for breaching EU law (Van Gend and Loos).
It thus means that Union law can be enforced at the Union level or at the national level.
• Is a State liable when it takes new actions that are not in compliance with a directive when
the transposition period is not over yet? With other words, a consequence of the primacy
of EU law is that MS may not adopt rules that would run contrary to EU law; are these
(transposition period not over yet) directives already considered as EU law?
Yes, Member States must refrain from doing so. Directives are considered Union law as from the
moment they are published in the Official Journal. (is not the same as transposition period under
which Member States must transpose the Directive in their national legislation)
• What are the differences between the vertical and horizontal direct effect of the ECHR and
the Charter of the Fundamental Rights? Is there even direct effect on the ECHR (signed by
the MS and not by the EU)?
This is a very interesting question but not within the scope of this course as the ECHR is not strictly
speaking binding as such on the EU but as general principles of EU law.
• Are the grounds of annulment of art. 263 par.2 TFEU only for the privileged applicants or
also for the quasi-privileged?
Ascending vertical direct effect of Directives: individual vs State, Van Duyn 41/74
No descending vertical direct effect of Directives: C-91/92 Faccini Dori: State vs individual, this
means that a State cannot rely, against an individual, upon a provision of a directive which has not
been implemented into national law. The state cannot benefit from its own breach (i.e. the fact that
it failed to implement the directive) against an individual
• Could you explain what "the discretion of the Commission" means? It is stated in detailed
outline 14 on page 6.
This means that the Commission is free to decide whether or not it wants to follow up on a Member
State which has failed to fulfil its obligations. E.g. If a person complains to the Commission, the
Commission is not obliged to follow up on that complaint and is not obliged to initiate infringement
action.
• I don't understand why the CJEU can decide on non-infringement of the Member State if it
has another interpretation about the EU act, because we have seen and in the book it's
noted that the interpretation of EU law should be the same in every Member State.
if may be that the Commission and the MS have different understandings of an EU obligation, if such
divergence persists it can be addressed by the Court in the context of an infringment action...
D. The EU legal order, the rule of law and fundamental rights: A unique legal order ought to
comply with the rule of law and fundamental rights
1. The rule of law in the EU: EU institutions and the Member States are subject and
accountable to the law
a. Action for annulment against an EU act before the CJEU: Articles 263 & 264
TFEU
i. Reviewable acts (Art.263 para.1 TFEU)
Requirements related to the author(s) of the act (= only from Eu
institutions).
Requirements related to the actual nature of the act: acts intended
to produce legal effects vis-à-vis third parties (= allows the CJEU to
challenge any legal acts).
(2) Proceedings brought against a regulatory act 5 (a), that does not entail
implementing measures (b) and which is of direct concern to them (c)
o Doc.analysis.13. Why do you think that the Court of Justice (as well as the
General Court) dismissed the action for annulment under Article 263 TFEU?
= if the MS didn’t needed to implement but just take it over, than annulment is
impossible.
5
You’ve to prove it.: in the regulation isn’t mentioned what is meant, afterwards explained in the P. Invit Case.
6
MS didn’t needed to implement the act but just take it over Than annulment is impossible!
- Interpretative straightjackets
See also extracts from R. Schütze, an introduction to EU law (CUP, 2015° pp.198-213
(scanned version on Toledo).
o How to ensure compliance of acts of the Member States with the fundamental
values of the EU (Art.2 TEU) and in particular EU fundamental rights standards
- Ex-ante = before they become MS they have to accept & comply
with these right & standards.
- Ex-post = measures after new EU rulings/acts.
- Interpretative techniques
- Soft-law and funding
- Specific scope and nature of the Article 7 TEU procedure,
contrast with enforcement (infringement) actions
= mechanism that never is used so for BUT may be used now by
the Commission.
Eg. The ‘Hungarian’ & ‘Polish’ cases
See doc.analysis.13. and the recent ruling in CJEU, Joined Cases C-8/15 P to C-10/15 P,
Ledra
(End.)
• Concerning the chapter about rule of law and the different types of applicants I asked
myself if the Kadi-case wasn’t an example of an act that was brought against a person (in
the category of non-privileged applicants), because the only purpose of the act is to
specifically freeze the assets of Mr. Kadi. Then the conditions of direct and individual
concern wouldn’t no longer be applicable.
See previous question
• What if you want, as a legal/natural person, to challenge an act as written in art. 236 TFEU,
but the 2 months of art. 263 par. 6 TFEU are passed? Can you use the preliminary way
before your national court (like we can before the Belgian Constitutional Court)?
Yes, when the time limit has elapsed individuals can use the preliminary reference procedure which
is called the indirect route. Article 263 TFEU accordingly is called the direct route to the CJEU.
• And what is the usefulness of those 2 months if art. 277 TFEU state that you can use all the
means of art. 263 TFEU? I do not understand exactly what is meant in art. 277?
Article 277 TFEU is called the plea of illegality. It can only be invoked as an ancillary plea. That is
where applicants in support of an action which challenges implementing measures addressed to
them or to a third person, plead the illegality of the general measure upon which the implementing
measures are based. Article 277 is therefore an indirect action, because it challenges indirectly the
validity of a measure on the basis of which a subsequent measure has been adopted. The plea of
illegality allows avoidance of the strict requirements of Article 263 TFEU for access to the EU Courts
(i. e. locus standi and time limits). Article 277 however can only be invoked in the course of other
proceedings for example to challenge an underlying regulation on which a contested act is based.
Plea of illegality/ exception illegality: something that frames in a main action, main action
must be a direct action (applicant vs defendant)! Not a preliminary reference!
The outcome on the plea of illegality needs to be decisive for the outcome of the main
action.
is only for acts of general application
• In the context of the regulatory acts (like implementing/delegating acts), where can you
put the recommendations and advices? Because they aren’t written down in art. 289 TFEU
that describes the legislative acts, neither in art. 294 that explains which procedure you
Recommendations and opinions are in principle not binding so unlikely to be 'reviewable acts'. If they
are however, they would be regulatory acts indeed as not adopted through legislative procedures.
• Can you always use the preliminary ruling ? Is it correct to say that there is no time limit ?
So if a norm already exists 2 years you can still use this procedure against that norm ?
You can indeed always use the preliminary ruling procedure. Please remember that there does not
exist a right to have a preliminary question asked to the Court of Justice. It is the national court/
judge who decides whether or not it wants to ask a preliminary question to the CJEU. If a norm exists
2 years, you can use Article 267 TFEU against that norm.
• “EU fundamental rights are binding on the MS when they are acting within the scope of
Union law”. Does this mean that we have to look if the EU has a (exclusive/shared)
competence on that matter to check in the fundamental rights are respected? If the EU has
no competence, does this mean that EU can’t punish the MS when breaching an EU
fundamental right (sounds quite unlogical)?
Charter of fundamental rights is binding:
On Member States: only when they are acting ‘within the scope of Union law’ (judgment in
Akerberg Fransson)
On EU institutions: at all times!
You do not have to check whether the EU has exclusive or shared competence in a certain situation.
The EU and its institutions are always bound by the Charter.
When the Member States breach fundamental rights, protected under the Charter, when they are
acting within the scope of Union law, they can be punished.
Varia
• Question about the combination of direct effect, direct applicability, monism and dualism
and primacy. Is it correct to say : There was first the arrest of Van Gend en Loos voor CJ in
1963. There is decided that the MS have with the European Union constituted a special
legal order, also called a supranational legal order, this means that first of all the EU law is
directly applicable in the MS, there is no need for a transformation of the European law
into national law. Which means that monism and dualism aren’t relevant here. (1)
Secondly there was decided that EU law might have direct effect, which means that EU
citizens can rely upon it before national courts. => They can directly rely upon European
law. (2) In 1964 van Gend and Loos was followed by the costa and enel case ( CJ). Is it
correct to say that the court here reaffirmed its former decision in van Gend and Loos? (3)
Van Gend en Loos 26/62: direct effect
Costa/ENEL 6/64: supremacy of Union law
• But here was decided something else, namely that EU law takes precedence over national
law. And that it binds every national court, which means that every national court has the
ability to ( om het te toetsen aan EU law? )
Every national court (lower and Supreme Courts) can check whether its national legislation is in
accordance with Union law. When national legislation conflict with European law, every national
court is entitled to set aside its national legislation. See page 2 of the detailed outline for more
consequences of primacy.
• In the courses the professor sometimes said that the costa and enel case decided that EU
law was supranational? But isn’t it the Gend and Van Loos case that decided that? Or can
you combine both cases to just find that idea?
The Costa v ENEL case is indeed considered to be the judgment in which the Court of Justice
explained that Union law takes precedence over national law (supremacy).In Van Gend and Loos the
Court also explained that the Member States had created a supranational legal order. These
judgments have indeed to be read together. As explained above the principle of direct effect (Van
Gend en Loos) is developed to guarantee the supremacy of Union law( Costa v ENEL).
• In the courses there was also said that the primacy of the EU law is the reason why monism
and dualism aren’t that relevant. But I don’t really understand why, because I always
thought that is was because of the direct applicability that monism and dualism aren’t
relevant? Is my assumption wrong?
See also answer above. What was said in the lecture is correct. Monism and dualism are used to
describe the reception of international law into national law. It describes the relationship between
international and European law. Direct effect is a principle which states that Union law confers
rights on individuals which can be enforced in national courts.
• In the chapter about direct effect is a scheme provided that says that you first have to
check consistent interpretation. If this is not possible you have check direct effect, and if
that is not possible state liability for damages can be applied. I don’t understand how the
two last steps can be separated. I understood that the way to enforce the direct effect was
the possibility to hold the state liable for this breach.
Direct effect and state liability in damages have different objectives: obtaining the actual right v.
damages for not having obtained the said right
• When exactly are procedures incompatible in the case we use multiple legal bases? (the
explanation in the book is unclear to me)
Handbook: 7-016. multiple legal bases can only be used when the procedures are compatible and
• Can the EP reject a Commission proposal in the first reading and what is the consequence
of this?
Article 294 (1)-(6) TFEU = first reading
Article 294 (7)-(9) TFEU = second readingThere is also no obligation to move forward in the first
reading (no deadlines) so that in practice what happens is that they keep discussing and not doing
anything and in the end the commission withdraws it proposal.
See scheme on page 665 in your handbook)
• Can the Council reject a Commission proposal in the first reading and what is the
consequence of this?
No. after the EP’s position is adopted the Council may decide to accept EP’s position (act is adopted)
or amend EP’s position (proposal returns to EP in second reading). In the second reading the Council
can approve EP’s amendments or not approve all amendments.
• Are there still any specialized courts in the Court of Justice of the European Union, after
the repeal of the Civil Service Tribunal?
No.
• In question 2.2, I was wondering how you could know that a certain amendment doesn’t
increase the competences of the Union. Here, for example, I didn’t know that this
budgetary council would not increase the competences. Is it sufficient to mention that the
• I do not understand the concept of adverse repercussions and the concept of triangular
relationship.
This question relates to the Wells judgment.
A triangular relationship means that three parties are involved in a certain situation.
Adverse repercussions: an unfavorable (most of the times indirect) effect, influence, or result
produced by an event or action