You are on page 1of 120

EUROPEAN LAW

 GENERAL + DETAILED OUTLINES AND DOCUMENT ANALYSIS

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

TEEC : Treaty of Rome (1957) TEC


Art. 1 TEC vs Contracting parties establish EEC. The (high) contracting parties establish EU. The next
Art. 1 TEU stap in an ever closer Union.
Art. 2 TEU The Union is founded on the values of the respect for :
- Human dignity
- Democracy
- Equality
- The rule of law
- Human rights
These values are common to the Member states in a
society in which pluralism, non-discrimination,
tolerance, justice, solidarity and equality between
women and men prevail (zegevieren).
Art. 2 TEC vs The aim (doel) of the Community is The Union’s aim is to promote peace, its values and the
Art. 3 (1) TEU developping economic activities by… well-being of its peoples.
Art. 3 TEC vs The activities shall include : economic 2 : The union shall offer its citizens : an area of freedom,
Art. 3 (2)-(6) purposes security, justce,…
TEU 3 : social market economy
4 : economic and monetary Union
5 : protection of its citizens
6 : Union pursue its objectives by appropriate means of
their competences.

European Law 2016-2017 Stijn Debie 1


o What is/are the main difference(s) between the objectives in both texts (TEEC
and TEU)?
- TEU has much more ambitious objectives
- peace, social policy, monetary union, human rights, …

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

(Doc. Analysis 1: the values of the EU)


o Mean target: an ever closer Union among the people of Europe (art. 1 (2) TEU) by:
- Equality of the Member States before the Treaties & respect for their national
identities (art. 4 (2) TEU).
- Principle of sincere cooperation between the Union and the Member States (art. 4
(3) TEU).
- Principle of sincere cooperation between EU institutions (art. 13 (2) TEU)

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.

European Law 2016-2017 Stijn Debie 2


o The EU is founded on these values and these values are common to every Member
State!
 Member states have to apply to these values to become a member of the
Union (art. 49 (1) TEU)
 If a Member State threats the values: art. 7 TEU.
 Art 7 TEU:
1. The Council can (by majority of 4/5 + consent of Ep) determine a
clear risk of a serious breach after a proposal of 1/3 of the MS or by
the EP or the Ecom. The MS has the right to be heard by the EC and
may add recommendations.
2. The Council can (by unanimity) determine the existence of a serious
and persistent (aanhoudend) breach after a proposal of 1/3 of the
MS or by the Commission and the consent of the EP
3. If a serious breach is determined he EC can suspend certain rights of
the treaties for the MS.
4. The measures of 3 may be vary or revoke in response of changes in
the situation.
5. The voting arrangements are stated in art. 354 TFEU (see also 238
TFEU and 16 TEU).

SO: all values apply to the member states BUT there could be exceptions or
problems with these values (art. 7 TEU)

E.g.: Hungaria & Poland (Democracy) or UK ( no EURO etc).

B. Different models of regional integration: the choice of format?

1. Integration may have different scopes:


o Different integration ways of the values into the EU due to the various
systems of the individual Member States.
• From free trade area (free movement of goods) to a full Union
(complete integration
• Intermediary stages such as a customs union, common market,
monetary Union and political union = Part 1 of the Book:
European Union: different paths towards integration!!
 Chapter 1: the establishment of the European
Communities
 Chapter 2: intergovernmental cooperation between EC
Member States
 Chapter 3: Bringing together the parts of integration into
one European Union
 Chapter 4: From the constitution for Europe to the
Treaty of Lisbon
 Chapter 5: Amendments to the Treaties
 Chapter 6: Accession to the EU

European Law 2016-2017 Stijn Debie 3


Note: for this Part I of the detailed outline we only need Chapters 1-5
(Chapter 6 is part of part II of the detailed outline) BUT also parts of
Chapter 7: principles governing the competences of the EU (= Part 2
of the Book: jurisdiction of the EU).

2. The choice of scope depends upon the objectives identified


o Economic or political objective?
o Through the times every “union” had his own objectives
o Nowadays we have all these objectives combined in the EU Union ( see
art. 3 TEU etc.)
 These different objectives need for each objective an
appropriate scope, this is determined by the degree of EU
integration:
* EU integration = the way of political union:
Supranationalism or Intergovernmentalism (see 3.)
 OR we can have a regional integration instead of a encompassing
(=allesomvattende) EU integration:
* European Free Trade Area: EFTA
* European Economic Area (EEA, 1994)
e.g.: Norway (EEA partner) and Switzerland (EFTA
member) and the EU cooperating.
3. Integration may operate in different ways
o Intergovernmentalism: the governance of the MS’s are making the
decisions (one state, one voice)
o Supranationalism (see also Community method): the organisation (EU)
is the object itself so the organs of the organisation decides.

4. The choice of tools also depends upon the objectives identified


= The way of integration isn’t just choosing a system, we also need
“tools” to execute the integration (treaties, directives, regulations,..).

o The supranational nature of law making


 The EU as an autonomous legal system integrated to that of the
member states:
* CJEU: Costa c. ENEL, point 3: By contrast with ordinary
international treaties, the EEC Treaty (today’s TEU and
TFEU) 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 stated and which their
courts are bound to apply.
 Diversity within a single framework
* There are exceptions to supranational mechanisms at EU
level: Certain EU policies (beleidsmaatregelen) remain
dominated by an intergovernmental logic.
* Multi-speed Europe: the idea that different parts of the
European Union should integrate at different levels and
pace depending on the political situation in each
individual country

European Law 2016-2017 Stijn Debie 4


Development of economy made by E.g.: Schengen zone
Cooperation between
supranational decisionsmember states E.g. Eurozone
(intergovernmentalism)
E.g.: Enhanced cooperation between member states:
art. 20 TEU + art. 326-334 TFEU

* We will focus on the main rules, if an area of law is


particularly important, the course will provide a general
introduction.

C. Reforms of ‘constitutional’ importance for the EU legal order: the story

1. Introduction to constitutional reform at EU level


o The European Union (EU) was initially called the European Economic
Community (EEC)
o The EEC was created by an international treaty, ‘Treaty establishing the
European Economic Community’ (signed in Rome 1975): often referred to as
TEEC or Treaty of Rome.
o The TEEC has been subject to several amendments: 2 different series
i. Adjusting the material scope and tools for the process of European integration
 named after the cities they were signed in: Maastricht, Nice or
Lisbon (see below).
 These amendments lead to the EEC becoming the EU
ii. Changes to the TEEC to give effect to the incorporation of new Member States
(see part II).

2. From Zurich to Lisbon (see also synthetic overview on Europa.eu)


A. Towards creation of the EEC
o WW II: in this War and after the War the first initiatives for cooperation were
taken between states.
o Further efforts for cooperation among European states:
 Churchill (UK), Zurich speech: ‘a kind of United States’ for Europe (1946)
 Brussels Treaty (1947) lead to NATO (North Atlantic Treaty Organization or
NAVO, 1949)
 Marshall plan lead to the Organisation for Eonomic Cooperation and
Development (OECD, initially OEEC 1948)
 The Hague Congress (1948)
 Council of Europe (1949) & European Convention on Human Rights (1950)
 Shuman Declaration (1950): Europe will not be made all at once, or
according to a single plan. It will be built through concrete
achievements which first create a de facto solidarity.
 Besides the Council of Europe, there came 3 other treaties BUT they
were supranational!
• Treat establishing the European Coal and Steel Community
(ECSC) (1952-2002). Their scope was an internal market for
coal and steel, the tools were high authority + special Council
of Ministers + Assembly + Court of Justice

European Law 2016-2017 Stijn Debie 5


Note: the European Defence Community (1952-
1954) failed hich lead to a down time (stilstand) of
the cooperation in Europe.
 Spaak Report on a mandate from the Messina Resolution (1955):
The Messina Conference of the foreign ministers of the six
member states of the European Coal and Steel Community (ECSC)
would lead to the creation of…
 The European Economic Community (EEC) in 1958 established by
the Treaty of Rome (se also EURATOM Treaty), based on the
Messina Resolution.

Key objectives/ scopes?

 Common market + what is necessary for its proper


functioning (harmonisation, competition) + common
commercial policy + coordination of economic policies +
flanking policies (eg. Agriculture, transport)

Tools:

Council (of ministers) + Assembly + Commission + Court of


Justice
Note: now the Assembly is the EU parliament.
 After the “down time” of 1954, we had a relieve of cooperation with a
result of 3 different treaties (or 2?!) So we needed a “unit” of these
treaties:
 The Merger Treaty (1967) which adjusted the tools: single Commission +
single Council for the three European Communities (EEC, Euratom, ECSC) (
Council of Europe)

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

European Law 2016-2017 Stijn Debie 6


 Single European Act (1987): due to the political crisis & changes in the nature of
the treaties
Scope: intention to speed up the creation of an internal market
Tools: extension of qualified majority voting at the Council + cooperation and
assent procedures to involve the Parliament.
= Council had now more “expanded” decision making process by the
qualified majority and by the involving of the parliament (they could block
decisions)
 Treaty on EU ( Maastricht Treaty , 1993): extra third pillar to the temple with
cooperation in justice and home affairs
Scope: prepares the European Monetary Union + elements of political
union (EU citizenship, common foreign and internal affairs policy, social
policy,…)
Tools:
-EEC becomes European Community (EC): extension of qualified
majority voting at the council + introduction of co-decision procedure
to give more weight to EU parliament.

-Creation of the EU: to encompass the EC and areas of cooperation


between the Member States (Common Foreign Security Policy (CFSP)
+ justice and Home Affairs (JHA)).

 So we have now 3 pillars (Handbook 3-013-3-019, 4-009): The three


pillars of the European Union (Maastricht, 7 February 1992)

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.

European Law 2016-2017 Stijn Debie 7


Q&A Toledo: The Three Pillars?
The Maastricht Treaty added to the former European treaties a new one (the EU Treaty) that
created a European Union based on three pillars: the European Communities (with all the
former Treaties), the Common Foreign and Security Policy(CFSP) and cooperation in the field
of justice and home affairs (JHA).The Treaty of Lisbon abolished the pillar structure, the
three pillar structure thus does not exist anymore. The treaty merged the EU’s
intergovernmental field of action with all the fields now covered by EU actions including in
particular those previously covered by the Community. The EU’s competence in the field of
PJCC (as the third pillar became known after Amsterdam) was incorporated in the TFEU. The
PJCC has therefore become subject to the Community method although some small
specificities remain. In the field of the CFSP however, decision-making continues to exhibit
significant features of intergovernmentalism.

C. From the EC & EU to the European Union


o Treaty of Amsterdam (1999)
 Scope: seeks to further the objectives of the Maastricht Treaty
 Tools:
• More transparent decision making and greater use of the
co-decision procedure.
• Transfers part of the cooperation from the EU pillars
(migration and asylum) to the EC pillar to enhance their
supranational nature) (see pillars above)
o Treaty of Nice (2003)
 Adjusted tools: methods for changing the composition of the
Commission + redefining the voting system in the Council.
o Charter of fundamental rights of the European Union (CFEU, 2000)
 Not binding yet first written list of EU fundamental rights
 Drafted by a Convention
o The draft Treaty (ontwerp verdrag) for establishing a Constitution for Europe
which lead to:
 Leaken European Council (2001)
 Convention on the future of Europe (2002-2003)
 Two negative referenda: Fr & NL: 2005
 Reflection period
o Treaty of Lisbon (2009)
 Amends TEU (Treaty of Maastricht) & TEEC (now TFEU or Treaty of
Rome)2

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

European Law 2016-2017 Stijn Debie 8


 Bumps on the road to ratification: Ireland, Czech Rep, Germany
 Largely inspired by the draft Treaty establishing a Constitution for
Europe.
 One single EU + CFEU becomes binding
 !! BUT: still 2 treaties: TEU and TFEU
 Scope: nuances the former distinction between the old-EC and old-
EU pillars + seeks to make the EU better able to address global
problems
 Tools: maps out the allocation of competences + co-decision
becomes the ‘ordinary legislative procedure’ and increased weight
for the EP + ‘citizens’ initiative + voting arrangements at the Council
+ European Council as institution + permanent president of the
Euroean council / new High Representative for foreign Affair + a
new EU diplomatic service.

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:

1. In essence the EU Treaties are a contract between the Member States.


a. Who are the current parties to the Treaties?

The 28 member states of the European Union

b. Do you know which countries are potential candidates for acceding to the EU?

European Law 2016-2017 Stijn Debie 9


! candidates <-> potential candidates
Montenegro and Bosnia and Herzegovina, Kosovo, Serbia,
Albania (see: http://europa.eu/european-union/about-eu/countries_en)

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?

There is no end to the agreement


<-> Coal and Steal Treaty

2. What is the relationship between the TEU and the TFEU?

- TEU sets out the general infrastructure. TFEU contains more detailed content

- both treaties have equal value

3. How do Protocols relate to the Treaties? What is their status under EU law?

- the Protocols have the same legal value as the Treaties

- the protocols perform 2 functions


1) more detailed than the treaties
2) they specify how treaties are applied on specific member states with special
reservations

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)

b. Why would it be important to have EU law available in all these languages?

Because every European citizen needs to understand the rules

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.

European Law 2016-2017 Stijn Debie 10


Candidates: A country is deemed to be a candidate country when, having examined its
application for EU membership, the EU Council formally recognizes the country as candidate,
thus granting the country candidate status.
Acceding countries: are those candidate countries which have completed accession
negotiations and signed an accession treaty with the EU.

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

i. General characteristics of the EU Treaties:


o The two treaties
 are ratified by the Member States
 Art. 52 TEU: the current parties
 Potential candidates? See doc. Analysis 2

European Law 2016-2017 Stijn Debie 11


 Ratification: the fact that the MS officially acknowledge and
accept the Treaty. The next step will be singing the Treaty.
 Art. 53 TEU & 356 TFEU: no expiration date for EU, you can leave
whenever you want.
 The charter has the same values as the TEU & TFEU (see both art.
1).
 Relation between TEU, TFEU and protocols: see doc. analyses 2

o Internal structure of the EU Treaties


The structure of the current EU Treaties most relevant headings:

Notes:

-Remarkable document for a “Constitutional Charter’: they organise


institutions, relations,… BUT it has also a constitutional aspect, volume due to
the technical and long texts and by transferring competences in a technical &
specific material.
- Special position of the Common Foreign & Security Policy (CFSP) still in the
TEU
- The provisions on the Area of Freedom, Security and Justice are now in Part II
TFEU BUT…
- Variable geometry in the EU Treaties:
o Eurozone: art. 136-138 TFEU & Protocol 14 (Eurogroup)
o Position of the UK, Ireland (Protocol 21) and Denmark (Protocol 22) in respect of the
Area of freedom, Security and Justice.

European Law 2016-2017 Stijn Debie 12


o Schengen acquis: Protocol 19, see also UK, Ireland and Denmark
 http://europa.eu/european-union/about-eu/countries_en: Not all
members of the Eurozone/ Schengen zone or members of the EU.

o Enhanced cooperation: art. 20 (1) TEU

2. A legal order shaped by the Court of Justice of the European Union


(see Chapter 7)
o The EEC Treaty created a new legal order integrated of that of the MS:
 CJEU: Costa c. ENEL: The integration into the laws of each MS 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.
 Primacy of EU Law as understood bu the CJEU erodes the distinction (=
doet te niet) between monist and dualist MS. So the system of a
country doesn’t matter: EU law takes primacy in conflicts!!
 Q&A of Toledo: Why does the primacy of EU law as understood by
the CJEU erodes the distinction between monist and dualist
MemberStates?
Because it does not matter anymore whether a Member State is
dualist or monist, EU law will always have supremacy over
national law. From the point of EU law, it is irrelevant what
method (monist or dualist) a given Member State uses in order to
provide a basis for the primacy of EU law within its legal order,
provided that hat law actually is given precedence over domestic
law (Book: 21-020)

o EU law confers rights and creates obligations for individuals


 Normally international law only binds the States, EU law binds also
individuals OR organisations / other legal persons.
 CJEU Case Van Gend & Loos: …the Community constitutes a new legal
order of international law for the benefit of which the states have
limited their sovereign rights, albeit within limited fields, and the
subjects of which comprise not only Member States but also their
nationals. 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.

o The Treaties as ‘the basic constitutional charter’ of the EU


 CJEU: Les Verts (see also art. 236 TFEU)
 The Treaties perform a constitutional function in the legal order because
they contain certain aspects that always remain the basis.
 Notion of ‘primary’ Union Law

European Law 2016-2017 Stijn Debie 13


Note: 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)

b. Why would it be important to have EU law available in all these languages?

Because every European citizen needs to understand the rules. Otherwise they can’t be
forced to confirm the obligations and to know their rights.

3. A Legal order subject to change

o Past constitutional reforms


o Now, procedures for constitutional reform: Art.48 TEU
 Ordinary revision procedure (to increase or reduce EU competences)
= MS, EP or Commission -> proposal to Council -> submitted to
European Council by the Council ( &national parliaments notified)
 If EP & Commission are consulted and simple majority:
 Convene a Convention (if justified by the extent of
the proposed amendments
 if not? intergovernmental conference BUT In any
case, need for an intergovernmental conference
(IGC) due to paragraph 4.
 If after 2y of signature, 4/5 of Member States have ratified but
one or more Member States have difficulties: European Council

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!!

European Law 2016-2017 Stijn Debie 14


o Other specific amendments may be possible depending on specific Treaty provisions

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:

1. The functioning of the Union shall be founded on representative


democracy.
2. Citizens are directly represented at Union level in the European
Parliament.
Member States are represented in the European Council by their
Heads of State or Government and in the Council by their
governments, themselves democratically accountable either to their
national Parliaments, or to their citizens.
o Art. 11 (4) TEU:
Not less than one million citizens who are nationals of a significant number of
Member States may take the initiative of inviting the European Commission,
within the framework of its powers, to submit any appropriate proposal on
matters where citizens consider that a legal act of the Union is required for
the purpose of implementing the Treaties.

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.

- State of union 2016:


= Junkers Speech

- Citizen’s initiative: right to water 3


Read the following press release: http://europa.eu/rapid/press-release_IP-13-107_en.htm

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

European Law 2016-2017 Stijn Debie 15


by the European Trade Union Federation in order to put the human right to water and
sanitation on the EUagenda and prevent the liberalisation of water services.

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

What is meant by ‘direct representation’ at European level in the European Parliament by


opposition to ‘indirect representation’ in the Council?
The members of the European parliament are directly elected by EU-citizens. Governments
that represent a country in the council are mostly not directly elected, but chosen by the
national parliament.

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.

European Law 2016-2017 Stijn Debie 16


 Enlargement and internal policy: EU & international politics are very
dependent of internal policy of the MS. But on the other hand,
international & EU politics can change the internal politics.
 Useful & updated (!) overview at: http://www.cvce.eu/obj/en-
a47dfe4f-4c60-434f-80da-43ef28389166
 1980’s: Portugal, Spain,…
 1990’s: Austria, Sweden,… NOT: Swiss & Norway!!)
 2000’s: Eastern Europ countries such as Poland, Baltic
states,…
 2010’s: Bulgary, Romania, Croatia

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

European Law 2016-2017 Stijn Debie 17


changed for the entrance of the new MS.
 In practice:
- Potential candidate vs candidate: being just a potential candidate means to have
the intention of becoming a MS. If the state is a candidate, they obtained status
from the EU, is the candidate becomes acceding candidate, they already applied
their law (=completed accession negotiations) and signed an accession treaty
with the EU.
- Pre-accession tools: Financial support from the EU to candidates
Answer on Toledo: What is meant with "pre-accession tools" (p.1)
MS wishing to become a Member of the EU have to comply with the Copenhagen
criteria (see hb 6-009). The pre-accession tools are used by the EU to exercise
control over the candidate countries’ reforms and to push the candidates to
meet the Copenhagen (political) criteria in the course of the pre-accession
process.

- Negotiation with the Commission on behalf of the Council (= Council as the


negotiator for each member state to the Commission).
- Transition periods: after 2004 (10 extra MS) they’re some transition
arrangements needed so they post-pone the entrance by the “transition period”
to fulfil these arrangements.
Q&A on Toledo: Becoming a Member State of the EU treaties in practice the
transition periods are mentioned. Could you please explain what this means?
(not explained in handbook)
Transitional arrangements might be negotiated: sometimes certain rules are
phased in gradually, to give the new member or existing members time to adapt.
E.g. http://ec.europa.eu/social/main.jsp?catId=466&

o Leaving the European Union: Article 50 TEU

 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

 The procedure provided for in Article 50 TEU


 Any Member State may decide to withdraw in accordance with its own
constitutional requirements.
 Notify the European Council

European Law 2016-2017 Stijn Debie 18


 Guidelines by the European Council
 Negotiations with the EU
 Council by qualified majority + consent of the European Parliament

 arrangements for withdrawal + taking account of future relationship


 If no agreement after 2 y of triggering the procedure: Treaties cease to
apply except unanimous decision at European Council

 In practice, multiple uncertainties remain as regards ‘Brexit’:


o Multiple open questions within the UK
- What does the UK really want?
- A very divided public opinion
- The position of Scotland and Northern Ireland
- UK High Court in R (Miller) v. Secretary of State for Exiting the EU from 3
November 2016: the UK parliament shall be involved (UK Supreme
Court ruling expected in 2017)
- The ‘Great Repeal Bill’

o Multiple open questions outside the UK


- Any change to the EU Treaties other than mere withdrawal would
have to obtain approval by all Member States
- No negotiations before Art.50 TEU is triggered
- The internal market includes the free movement of persons

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.

o EU citizens and the functioning of the EU (Title II TEU on ‘Provisions on


Democratic Principles & Part II TFEU on ‘Non-discrimination and Citizenship of
the Union’)
 The functioning of the Union shall be founded on representative
democracy (art. 10 (1)(2) TEU)
 The citizens vote for the parliament members (=chosen directly)
• Doc analysis 3
• European Parliament art. 20 (2)b TFEU
• Council of ministers: council of the national ministers, chosen
indirectly in their country.
• European Council: council appointed by the directly chosen
parliamentarians.
• European ombudsman: link between administration of EU &

European Law 2016-2017 Stijn Debie 19


citizens who assures openness, transparency & dialogue.
o Citizens have the right to petition to the EU parliament +
to apply to the EUROPEAN Ombudsman + to address EU
institutions/bodies in any EU official language and
receive an answer!! (art. 20(2)b TFEU)

 Citizens’ initiative: art. 11(4) TEU


• Procedure:
o 1 million citizens from a significant (1/4) number of MS +
a minimum number of citizens in each of them (number
of MEPs for the said country x 750)
o Inviting the European commission to submit any
appropriate proposal (3 months from submission =
voorlegging)
o More details in Regulation (EU) no 211/2011 of the EU
parliament and of the Council of 16 February 2011 on the
citizens’ initiative (consolidated version)
• Scope:
o Commission must remain within the framework of its
powers
o Proposal must contribute to implementing the Treaties
= the initiative have to contribute to the objectives of the
EU.
o See doc. Analysis 3

 National Parliaments contribute actively to the good functioning of the


Union (art. 12 TEU)
• Protocol 1
• Inter-parliamentary cooperation between national Parliaments
and with the European Parliament (COSAC)
• Protocol 2
• See also doc. Analysis 3

o EU citizens as ‘beneficiaries’ of EU law: right to move and reside in other


Member States
 Related right to vote and to stand as candidates in municipal elections in
the Member State of residence (Art.20 (2)(b) TFEU)
 N.b. Right to enjoy protection of the diplomatic and consular authorities
of any Member State if yours not represented in a third country (Art.20
(2)(c) TFEU)
 Citizens are involved & beneficiaries of EU law this means the right to
move, to vote & stand even if you’re not a MS + diplomatic protection
of another state.

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

European Law 2016-2017 Stijn Debie 20


their member states. That is why there is direct representation of citizens in the EP. There is indirect
representation in the Council of ministers: in the council we have the national ministers of the MS.
These ministers have been elected by national citizens at national level. If the ministers act at EU
level in the council, the citizens are indirectly represented.

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.

o Article 17 (7) para. 3 TEU

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.

LYSIS 4 –EUROPEAN PARLIAMENT – PUBLIEKRECHT II – EUROPEAN L

- The turnout at European Parliament elections

European Law 2016-2017 Stijn Debie 21


- Press release European Parliament new British Commissioner

http://www.europarl.europa.eu/news/en/news-room/20160909IPR41739/parliament-
endorses-sir-julian-king-as-commissioner-for-security-union

1. Who does the European Parliament represent?


the Union's citizens
2. What can you deduct from the graph regarding the turnout at European Parliament
elections?
The turnout for the European election is decreasing. This means that people don’t really care
about the EU-parliament.
 By establishing European political parties, they tried to rise the interest for the
parliament.
3. 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.

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.

European Law 2016-2017 Stijn Debie 22


 Introduction to the institutions who represent a certain interest so there is
a power for each institution BUT in balance with each other.
 7 institutions
• Every institution shall act:
o Within the limits of the powers conferred on it the
Treaties
o In sincere cooperation
 Advisory committees:
• Representation of multiple interests & institutional balance

1. The European Parliament


o A concise “ID card” of the Parliament is provided for in the art. 14 TEU
o representors of the Union's citizens
o art. 10 (2) TEU & art. 14 (2) TEU

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).

Note: doc. Analysis 4: The turnout for the European election is


decreasing. This means that people don’t really care about the EU-
parliament.
 By establishing European political parties, they tried to rise the
interest for the parliament (see below).

 European political parties:


- should ‘contribute to forming European political awareness
- expressing the will of the citizens of the Union’ (art. 10(4) TEU).

 Members of the EU parliament (MEP’s)


- EU citizens have the right to stand in European elections, Member
States may extend the right to non-nationals.
- Incompatibilities (onverenigbaarheden)

European Law 2016-2017 Stijn Debie 23


- Results from the last EP election:
http://www.europarl.europa.eu/elections2014-results/fr/election-
results-2014.html.

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:

in the ratio population/number of seats, each MEP ‘from a more populous


Member State represents more citizens than each Member from a less
populous Member State and, conversely, that the larger the population of a
Member State, the greater its entitlement to a large number of seats.’

o EU citizens voting in each Member States shall be represented by 6 to 96


seats per Member State

 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

iv. Internal organization


o Rules of Procedure of the European Parliament (8th parliamentary term - July
2014)
 Officers of Parliament
- President
- 14 Vice-Presidents
- 5 Quaestors

 Main bodies
- Bureau (= administrative function)
- Conference of Presidents (= President of the EU Parliament & other
ministers related for that certain political subject)

 Organisation of MEPs in political groups (=different member states but


same interests/ affinities)
- by political affinities
- MEPs from at least ¼ of Member States + min.25 in total

European Law 2016-2017 Stijn Debie 24


- Non-attached Members (= don’t fulfil the conditions BUT are elected,
so less support, less funding,… mostly administrative support: see
below).

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.

 Daily work of the EP takes place in Committees


- Examine the questions for the MEP’s (= “behind the scenes”)
- Mini version of the EU parliament: working together for texts &
negotiating.

European Law 2016-2017 Stijn Debie 25


- Standing committees shall examine questions referred to them by the
Parliament
- Members of the committees shall be elected after nominations have
been submitted by the political groups and the non-attached Members
(on a proposal from the Conference of Presidents)
- Non-attached Members do not constitute a political group within the
meaning of Rule 23 and they cannot therefore designate coordinators,
who are the only Members entitled to attend coordinator meetings.’

 Languages: documents/speeches shall be translated/interpreted


simultaneously into all the official languages.

v. Voting arrangements

o ‘Save as otherwise provided (tenzij anders bepaald) in the Treaties, the


European Parliament shall act by a majority of the votes cast.’ (Art.231(1)
TFUE)
o Quorum: 1/3 of MEPs present (Rules of Procedure)
o Examples of alternative voting arrangements include:
Eg. Art.7 TEU (threats to EU values in Art.2 TEU), the EP shall act by a 2/3
majority of the vote cast representing a majority of its component
Members
Eg. Art.49 TEU (accession), the EP shall act by a majority of its component
members.

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.

Q&A on Toledo: Concerning the chapter about the European Council, it


isn’t clear to me who gives the legal effect to the
decisions/conclusions of the European Council. Page 478 of the
handbook says that the Council gives legal effect on what the EC
decides. In the detailed outlines (and doc. an. 4) is however suggested
that the Commission is invited to give legal effect to the political
initiative. Is this a different procedure or do the Council and the
Commission interact?

Hb p 478 = before the Lisbon Treaty

Since the Lisbon Treaty decisions:

European Law 2016-2017 Stijn Debie 26


The Commission has the power of legislative initiative. The European
Council together with Council has a further role in representing the
interests of the Member States. See art. 10(2) TEU. In that sense the
Council further indeed represents the views of the European Council in
the legislative process for instance.

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

- Other(milder) forms of political control of other institutions and bodies


legal action against other institution (see last section of the course):
• temporary Committee of Inquiry (Art.226 TFEU)
• European Ombudsman (Art.228 TFEU) = link between
citizens & institutions, of citizens have a problem, he can
fix it!
• hearings of other institutions or entities (Arts.230(3)
TFEU, 235(2) TFEU, 36(2) TEU)
• reporting by president of European Council (Art.15(6)(d)
TEU)

- EP involved in various ways in ‘Constitutional’ functions


Eg. Accession procedure
Eg. Exit procedure
Eg. Art.7 TEU procedure
Eg. Treaty revision procedures

vii. Seat

o Protocol 6 on the location of the seats of the institutions and of certain bodies,

European Law 2016-2017 Stijn Debie 27


offices, agencies and departments of the European Union, Art.1

- seat in Strasbourg: 12 periods of monthly plenary sessions, including


the budget session.
- additional plenary sessions: Brussels + committees shall meet in
Brussels.
- General Secretariat: Luxembourg

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.

- EU Council: Article 17 (2) TEU:


2.Union legislative acts may only be adopted on the basis of a Commission
proposal, except where the Treaties provide otherwise.


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.

European Law 2016-2017 Stijn Debie 28


o Indirect link between the EU energy security and the Paris Agreement: While the
Paris Agreement does not directly deal with Energy security, the agreement has
implications for the EU's climate and energy policies.

Conclusion:

1. What is the main difference between the European Council and the Council of the European
Union?

- European council has no legislative power (<-> council of the EU)

- 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)

2. What are European Council Conclusions? (http://www.consilium.europa.eu/en/european-


council/conclusions/ )

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

European Law 2016-2017 Stijn Debie 29


out political directions
 They make conclusions: documents to identify specifi issues of concern for
the EU & they outline particular actions to take or goals to reach.
Q&A on Toledo: About the European Council Conclusions. I found at the
website of the EU that these conclusions can set a deadline to present a
legislative initiative. Doesn't this mean that the Commission is obliged to
make a legislative proposal? I was a little confused because in class was
told that the European Council has a political initiative but cannot force
the Commission to make a proposal, only invite to do so.
Hb 13-026-13-027, 16-015
It is correct that the European Council sets political priorities. What is on the
website of the European Council is a general statement, they can strongly
encourage the Commission and from a political perspective, the Commission
is likely to be follow up. However from a legal perspective, the Commission
cannot be forced to draft a legislative proposal.
 The EU council invites the Commission to take legislative action (= initiative
power)
 The EU Counsel is also a safety net for fundamental rights of the member
states.

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

o President of the European Council


- elected by qualified majority by its members
- 2.5y, renewable once
- incompatibility: shall not hold a national office.

o Role of the President (Art.15(6) TEU)


- Chair it and drive forward work of the European Council.
- Preparation and continuity of the work of the European Council (with
President of the Commission and on the basis of the work of the
General Affairs Council)
- Facilitate cohesion and consensus within the European Council
- present a report to the European Parliament after each of the meetings
of the European Council
- External representation of the Union on issues concerning its common
foreign and security policy, without prejudice to the powers of the High
Representative of the Union for Foreign Affairs and Security Policy

c. Decision making

European Law 2016-2017 Stijn Debie 30


o Meeting…
- In principle, meets twice every six months on invitation by the
President
- The President may convene special meetings
- Not public

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:

i. Acts of the European Council may produce legal effects vis-à-vis


(tegenover/voor) third parties and can be challenged in an annulment action
(Art.263(1)TFEU).

ii. European Council Decision 2011/199/EU of 25 March 2011 amending Article


136 of the Treaty on the Functioning of the European Union with regard to a
stability mechanism for Member States whose currency is the euro (OJ 2011 L
91, p. 1) has been the subject of a preliminary ruling (antwoord o/e prejudiciële
vraag) calling into question its validity, see further the last section of the course
(CJEU, Case C-370/12, Pringle ECLI:EU:C:2012:756)

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

see also for:


- the power of the European council:
http://www.consilium.europa.eu/en/european-council/
- the difference with the Council of Europe?
http://www.coe.int/en/web/about-us/who-we-are

d. Functions
o EU Council sets out political directions and priorities (art. 15 (1) TUE, eg. Arts.

European Law 2016-2017 Stijn Debie 31


121 & 148 TFEU on economic and social governance; see also art. 26 TUE on
CFSP)
o ‘conclusions’? Documents that to identify specific areas of issues of concern for
the EU and they outline particular actions to take or goals to reach

o 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

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

o Also as a ‘safety net’ when a Member State considers that ‘fundamental


aspects of its […] system’ (eg. Arts.82(3)-83(3) TFEU on Judicial Cooperation in
Criminal Matters) or ‘vital and stated reasons of national policy’ (eg. Art.31(2)
TEU on CFSP) may be affected by EU decision-making
Q&A on Toledo: A function of the European Council is that it is a safety net, so
that puts on hold the decision making procedure when there are vital and
stated reasons; but I don’t really understand this.
Page 3 detailed outline 5: when a MS considers that ‘fundamental aspects of its
system’ (e.g. 82(3)-83(3) TFEU) or’ vital and stated reasons of national policy’
(e.g. art. 31(2) TEU) may be affected by EU decision-making
Handbook 13-026: with regards to CFSP, the Treaty of Amsterdam
institutionalized the practice of having politically sensitive discussions/issues
being transferred from the Council to the European Council. It provided that a
vote was not to be taken if a member of the Council declared that, for
important and stated reasons of national policy, it intended to oppose a
measure which would otherwise be adopted by a qualified majority. The
Council (acting by QMV) requests that the matter be referred to the European
Council for decision by unanimity.
So, this means that the European Council in limited matters
acts as a safety net because sensitive matters may (in limited
cases) be sent from the Council (decision by QMV) to the
European Council which will decide about this matter by
unanimity.
See also paragraph 13-027 footnote 125 and the concerning
text in paragraph 13-027.
o Important constitutional functions (together with the Council)

Eg. Art.7 TEU procedure (see section I.A.)


Eg. Treaty revision procedures (see section I.D.)
Eg. Accession procedure (see section II.A)
Eg. Exit procedure (see section II.A.)

o Further influences the organisation & composition of other institutions

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.

European Law 2016-2017 Stijn Debie 32


Composition of the European Parliament (Art.14(2) TEU)
Eg. Decides on configurations and presidency of the Council (Art.236 TFEU)

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.
[…]

9. The Presidency of Council configurations, other than that of Foreign Affairs,


shall be held by Member State representatives in the Council on the basis of
equal rotation, in accordance with the conditions established in accordance
with Article 236 of the Treaty on the Functioning of the European Union.’

- Council Decision 2016/1316 of 26 July 2016 amending Decision


2009/908/EU, laying down measures for the implementation of the
European Council Decision on the exercise of the Presidency of the
Council, and on the chairmanship of preparatory bodies of the Council
(OJ 2.8.2016, L 208/42
o available at http://eur-lex.europa.eu/legal-
content/EN/TXT/PDF/?uri=CELEX:32016D1316&from=EN
o See pdf file

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.

- how are big/medium/small countries and countries from north/south/east/west of the EU


represented in each group?

European Law 2016-2017 Stijn Debie 33


Each group has small as well as bigger counties that are all from another region of the EU. This is to
ensure that all kind of states have a representation each year and a half.

- for how long does the presidency of one country last?

Half a year (total presidency per group: 1 year and a half)

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?

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

- 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

3. The Council of the EU (= council of ministers)

 European Council (= council of Head of States)


 Council of Europe (= council outside the EU)

o A concise ‘ID card’ of the Council is provided for in Article 16 TEU


o Reminder:
- Historical evolution:
‘Member States are represented […] in the Council by their
governments, themselves democratically accountable either to their
national Parliaments, or to their citizens.’
(Art.10(2) al.2 TUE)

a. Composition

o According to Article 16(2) TEU:


- Council = 1 representative for every Member State at ministerial level
(who may commit the government and cast its vote)
- The ministers represent their member state & they are accountable
before their national parliaments
- SO in the EP you are representing your citizens, in the Council of the EU
you are representing your member state and especially the
government.

b. Internal organisation

European Law 2016-2017 Stijn Debie 34


o Configurations
o The Council meets in different ‘configurations’ (Art.16(6) TEU)
o Full list of Council configurations defined by European Council (qualified majority
voting, Art.236(a) TFEU):

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 Coreper and other preparatory bodies


o A Committee of Permanent Representatives (= Coreper (franse afkorting)) of the
Governments of the Member States prepares the work of the Council (Art.16(7)
TEU) SO they prepare the background work of the council (weekly meeting for
COREPER I & II).
- Coreper I = regulating the daily life of the EU: politics
- Coreper II = sensitive affairs such as finances and therefore the coreper
II exist of diplomats.

Note: Council has 28 ministers, one for every state.

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)

European Law 2016-2017 Stijn Debie 35


- The rotation is organised by groups of 3 countries (see doc. analysis 6):
each group has the presidency for a half year so a group has the
presidency for 1,5 year.

Note: Secretary-General (appointed by Council, qualified majority voting) and the


General Secretariat): The General Secretariat of the Council (GSC) is led by its
Secretary-General. His main roles are to assist the Council and to manage the GSC. He is appointed
by the Council by qualified majority. The Secretary-General is responsible for the overall organisation of
the GSC. He ensures the execution of services provided by the GSC to the presidencies of the Council
and its preparatory bodies, and to the president of the European Council. He is also responsible for the
administrative management of the GSC in terms of its human and financial resources.
The Secretary-General takes part in Council meetings as appropriate. His role is essentially to ensure the
continuity and progress of the Council's work and to advise the Council.
The Secretary-General of the Council is also the Secretary-General of the European Council. He attends
European Council meetings and takes all measures necessary for the organisation of its proceedings.
The current Secretary-General is Jeppe Tranholm-Mikkelsen. He was appointed on 21 April 2015 for the
period 1 July 2015 - 30 June 2020.

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

- Specific arrangements (Art.16(4) TEU) in case:


• the Council does not vote on a proposal from the Commission or High
Representative of the Union for Foreign Affairs and Security Policy
(Art.238(3) TFEU, eg. Art.50 TEU)
• not all the members of the Council participate in voting (Art.238(3)
TFEU, eg. Art.121(4) TFEU on warning to a MS the context of
economic governance)

4
There were transitional arrangements prior to 31.10.2014.

European Law 2016-2017 Stijn Debie 36


- Special arrangements until 31.3.2017:
• When an act is to be adopted by QMV, a member of the Council may
request that it be adopted in accordance with the qualified majority
as defined before 1.11.2014 (Protocol on transitional provisions,
Art.3(2))
•In fact, the rules on ‘blocking minority’ are adjusted
(Declaration 7 on Article 16(4) TEU and Article 238(3)
TFEU): if at least 3/4 of the population or 3/4 of the
number of Member States necessary to constitute a
blocking minority within the meaning defined above, the
Council shall further discuss...
- Special arrangements as from 1.4.2017
• In fact, the rules on ‘blocking minority’ are adjusted
(Declaration 7 on Article 16(4) TEU and Article 238(3) TFEU): if
at least 55% of the population or 55% of the number of
Member States necessary to constitute a blocking minority
within the meaning defined above, the Council shall further
discuss...

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)

Also look at detailed outline 12: differentiated decision making: there


are special calculations for voting arrangements at the Council when
not all MS are involved.

The blocking minority in art. 16 (4) TEU, does it consist of 4 members


of the council that constitute 35 % of the members? 35 % is not
mentioned in the article but I thought it was mentioned in the lecture.
Is the blocking minority in art. 238 TFEU sub. b the same as in art. 16
(4) TEU?
No. Art.16(4) TEU says that that there should be (among other
conditions) votes from MS representing at least 65% of the population
to have a QM so this implies that if countries representing more than
35% of the population are against then you have a blocking minority.
Read carefully 238(2) and (3) TFEU they provide for special
arrangements in specific circumstances.

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!

Daarnaast zijn de “uitzonderingen” op de QMV:

European Law 2016-2017 Stijn Debie 37


- Council mag niet stemmen over FASP en hiervoor geldt ook een andere
QMV (art. 238 (3) TFEU)
- Protocol on transitional provisions, Art.3(2) voorziet dat voor 31.3.2017,
leden van de Council kunnen vragen voor de QMV van voor 1.11.2014,
om te zorgen dat er toch een echte QMV zou zijn ipv een act aan te
nemen omdat er geen blocking minority wordt gevormd.
- Die blocking minority is aangepast door Declaration 7 on Article 16(4)
TEU and Article 238(3) TFEU: ofwel 4 Council members, ofwel ¾ voor
31.3.2017 ofwel 55% van de EU bevolking of 55 % van de Lidstaten
(vanaf 1.4.2017) hebben die tegen zijn om een blocking minority te
vormen.

Zie ook Hb 16-009.

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.

It came up again during the negotiations about the Treaty of Lisbon on


21 and 22 June 2007 in Brussels. From 2014 a new version of the 1994
"Ioannina Compromise" should take effect, which would allow small
minorities of EU states to call for re-examination of EU decisions they
do not like (= 55% ipv ¾ )

Note: QMV in practice


- See voting calculator: http://www.consilium.europa.eu/en/council-
eu/voting-system/voting-calculator/

ii. Other voting arrangements


- Simple majority
= majority of component members (Art.238(1) TFEU)
- Unanimity
= Abstentions shall not prevent adoption (Art.238(4) TFEU)

iii. Publicity
o ‘The Council shall meet in public when it deliberates and votes on a
draft legislative act.’ (Art.16(8) TEU)

o This can be read a contrario... (= if the counsil doesn’t vote, the


meeting is not public?!)

European Law 2016-2017 Stijn Debie 38


d. Functions
o Policy coordination (eg. Art.121 TFEU on broad economic guidelines)

o Legislative functions
- Ordinarily co-decider (with European Parliament)
- Stronger role in special decision-making procedures (eg. Art.19 TFEU)

o Budgetary functions (co-decider with European Parliament)


o Conclusion of international agreements (eg. Art.218 TFEU))
o Occasional implementing function
o Strong role in the Common Foreign & Security Policy (together with
European Council, eg. Arts.24 & 26 TEU)
o Relationship with other institutions, see Chapter 13.

Note: special link with European Council: see HB 13-010.

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.

e. Seat (= Parliament is directly by citizens, council is indirectly)


o (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(b))
o Seat in Brussels.
o During the months of April, June and October, the Council shall hold its
meetings in Luxembourg.

4. The European Commission


o The composition of the Commission is different than the Parliament or the
Council: first we chose the President, than the members of the Commission. In all
other institutions, they first chose members, than president, chosen by
members.
o A concise ‘ID card’ of the Commission is provided for in Article 17 TEU.
o Reminder: Historical evolution
‘The Commission shall promote the general interest of the Union’ (Art.17(1) TEU)

European Law 2016-2017 Stijn Debie 39


a. Designation (=benoeming)
o Selection criteria: general competence + European commitment + independence
(Art.17(3) TEU)
o A procedure in 2 stages (Art.17(7) TEU)
i. Election of President of the European Commission
…according to Art.17(7) TEU:
- European Council (qualified majority voting) => proposes a candidate to
the EP ‘taking into account the elections to the European Parliament’.
Note: before 2014 the election of the President were in the hands of the Head of States
in consultation with governances.
Now all the different political parties identify the “leader” of their party (=
Spitzencandidates), the EP chose the President out of these Spitzencandidates.
- EP elects the president (majority of its component members for a
democratic basis, at least the EP is chosen directly, the Council isn’t.)
- If required majority not reached at EP => EU council (qualified majority
voting => proposes new candidate (within one month)

…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).

ii. Appointment of the European Commission as a body (art. 17 (7) TEU)

- Commissioners ‘shall be selected, on the basis of the suggestions made


by Member States’
- Council + (by common accord) President of the European Commission
=> proposes a list of Commissioners
- Commission President + High Representative of the Union for Foreign
Affairs and Security Policy (more on this below) + other members of the

European Law 2016-2017 Stijn Debie 40


Commission -> ‘subject as a body to a vote of consent by the European
Parliament’
- European Council finally appoints (qualified majority voting) the
Commission

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

Additional question to doc.analysis.7. Observe the discrepancy between the


explanations just given on today’s composition of the Commission and the wording
of Art.17(4) and (5)
TEU. How is such discrepancy possible and what could explain the current state
of affairs?
Art 17(4): one commissioner per member state
Art 17(5): two thirds of the number of Member States have a commissioner,
rotation-system
=> art 17(5) is not applied yet

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

European Law 2016-2017 Stijn Debie 41


Note: authority of the President over Members: involved in designating the list of
members + may reshuffle the allocation of responsibilities among Members (Art.248
TFEU) + may request individual resignation.

o The President and other entities (Rules of procedure of the European


Commission) Secretariat-General
- 7 Vice-presidents Groups of Members (= surrounding & support of the
President’s activiteies)
- Members of the Commission
- Directorates-General (=national ministers with a specific portfolio)

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

Note: meetings are not always necessary to make decisions

Deciding… (as a ‘College’)


o
- proposals from one or more Members
- decisions by majority of the number of Members if a Member requires
a vote
g. Functions
o In principle, exclusivity of legislative initiative within the TFEU
- (Art.17(2) TEU, counter example in Art.76(b) on PJCC, also not for CFSP)
- Recommendations (Art.292 TFEU general power) & opinions (eg.
Art.156 TFEU on social policy)
- Commission’s annual ‘general report on the activities of the Union’
(Art.249 TFEU) (=every year a rapport about activities & the debates).

o Coordination & management functions (Art.17(1) TEU)


o Delegated and implementing acts (Arts.290-291 TFEU)
- Legal acts that are binding BUT not legislative acts!
o Execution of budget (Art.17(1) TEU)
o Monitors the application of EU law (Art.17(1) TEU): ‘Guardian of the Treaties’
(not so in the CFSP)
- Link with CJEU, in particular for infringement actions (see below):
together they oversee the application of Union law
o Union’s external representation except Common Foreign & Security
Policy and where Treaties provide otherwise (Art.17(1) TEU)
- The Commission adcts on a mandate of the Counsil, mostly negociation
& reporting to the Counsil.

European Law 2016-2017 Stijn Debie 42


h. The High Representative of the Union for Foreign Affairs and Security Policy (or ‘High
Representative)
o In-between the Council and the Commission: ‘two hats’
- Presides over the Foreign Affairs Council (Art.18(3) TFEU, see section on
Council of the EU)
- Is one of the Vice-Presidents of the Commission (Art.18(4)TFEU, as
explained above)
o Designation: (Art.18(1) TFEU)
- European Council (qualified majority voting) + (with the agreement of)
President of the Commission -> appoint the High Representative
- Reminder: the High Representative together with other Commission
members is subject to a vote as a body (Art.17(7) last paragraph:
consent of EP + appointment by European Council at qualified majority)
= possibility to block!

o Supported by the European External Action Service (Art.27(3) TEU,


known as ‘EEAS’)
- ‘This service shall work in cooperation with the diplomatic services of
the Member States’
- EEAS = officials from General Secretariat of the Council + of the
Commission + staff seconded from national diplomatic services of the
Member States (post Lisbon body) => collaborates with diplomatic
bodies of MS.
- More details available in: Council Decision 2010/427 of 26 July 2010
establishing the organisation and functioning of the European External
Action Service
o Functions reflect its ambiguous institutional status (=reflection of its two
“hats”):
- Carry out the Union's Common Foreign and Security Policy (on mandate
from the Council) + proposals for its development (Art.18(2) TFEU)
- External relations of the Commission and coordination of other aspects
of the Union's external action as Vice-President of the Commission
(Art.18(4) TEU)
o Complex relationship with other EU institutions & presidents of such
institutions
- eg.: external representation for CFSP (Art.15(6) ante-penultiem
paragraph on the President of the European Council & Art.18(2) TEU on
the High Representative)
- eg. termination of its term only through Art.18(1) TEU unlike
Commissioners (Art.17(6) TEU)
- eg. in case of motion of censure against the Commission, the High
Representative only resigns from the duties he/she carries out in the
Commission (voir 17(8) TFUE)
- SO High represantives is halve commission & halve Council.

European Law 2016-2017 Stijn Debie 43


i. Seat
o (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(c)
o Commission’s seat: Brussels

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.

- Video fragment on Spitzenkandidaten

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

5. The Court of Justice of the European Union or CJEU


o A concise ‘ID card’ of the CJEU is provided for in Article 19 TEU
o Reminder:
- Guest lecture by Professor Koen Lenaerts (zie notities)
- Historical overview and recent (!) reform of the CJEU:
• ‘The Court of Justice of the European Union […] shall
ensure that in the interpretation and application of the
Treaties the law is observed.’ (Art.19(1) TFEU)
o In addition to Treaty provisions, the organisation and functioning of the CJEU are also
defined by:
- Protocol 3 on the statute of the CJEU (as amended several times and
last in 2016)
- Rules of Procedure of the CJEU (also recently amended)

European Law 2016-2017 Stijn Debie 44


o The CJEU is a multi-layered structure (Art.19(1) TEU):
- Court of Justice (or CJ)

+ General Court or GC (Art.256 TFEU)


In principle, a first instance court with appeal on points of law to the CJ
Except for ... (see below allocation of tasks CJ v. GC)

CJEU + Specialised courts (Art.257 TFEU)


EP + Council -> may establish specialised courts
GC (There existed a ‘Civil Service Tribunal’ the existence of which has been
repealed as of 1.9.2016 and whose competences have now been
SC’s
transferred to the General Court)

 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

- for members of the General Court (Art.254 TFEU)


‘independence is beyond doubt’ + ‘ability required for appointment to
high judicial office’
• less difficult than CJ.
- Procedure for members of both CJ and GC (Arts.253 & 254 TFEU)
common accord of the governments of the Member States +
consultation of a panel of ‘wise men’
• A panel (Art.255 TFEU) to give an opinion on candidates'
suitability before the governments of the Member States make
the appointments
• 7 persons (former members of the CJEU, members of national
supreme courts and lawyers of recognized competence (=wise
men with experience).
- Term: 6y with partial replacement every 3y (Art.253 TFEU)

ii. Composition (see Article 19 TEU & Article 252 TFEU)


o Court of Justice = 1 judge/Member State + 11 Advocates-General
- Advocates-General or AGs
‘acting with complete impartiality and independence, to make, in
open court, reasoned submissions’ (Art.252 TFEU)

European Law 2016-2017 Stijn Debie 45


o Why one judge/MS? Equality between states and in every case there has
to be a “national” judge for every member state due to the influence of
the CJEU ruling on national level
o What explains the rule according to which there is one Judge by
Member State at the Court of Justice?
Every ruling ca have a big political and legal importance in a member
state. A judge from your own country can explain to the other judges that
have to decide what chamber will rule the importance of a ruling in the
national order (e.g. Belgian judge explains the difficult federal structure
in Belgium). This way a case will be ruled by the full chamber, the grand
chamber or an ordinary chamber in order to its importance.
(see lecture Koen Lenaerts)

o General Court = at least one judge/Member State, 47 as from 1.9.2016


and up to 56 as from 1.9.2019 (a judge may be called upon to perform
the function of an AG)

iii. Status of members


- Impartial, conscientious, preserve secrecy of deliberations
- Immunity
- Incompatibilities

iv. Internal organization


o Both courts: Full Court, Grand Chamber & chambers (+ single Judge at
GC)
- Eg. CJ (full court) Opinion 2/13 on EU’s accession to the ECHR (see final
section of this course)
o Both courts: 1 President, 1 Vice-president, Presidents of Chambers,
Registry (see course K. Lenaerts & above)
o Judicial procedures triggered by writing to the Registrar + in principle,
both a written and an oral stage + important role of the ‘Judge-
Rapporteur’
o All Member States, the Commission and the actual EU institution(s)
concerned shall be informed of preliminary questions on the
interpretation or validity of EU law (see also last section of the course)
o Right to intervene for the Member States and EU institutions
o Special procedures & tools
- (eg. expedited and accelerated procedures for the area of freedom,
security and justice, see Art.23a of Protocol 3 on the statute of the CJEU
as last amended in July 2016)
o All official languages may be used to approach the Court but the working
language in the institution is French

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)

European Law 2016-2017 Stijn Debie 46


- Why do you think that the secrecy of the deliberations at the CJEU are
considered to be of extreme importance?
It is important to insure the independence of the judges from the
member states. (after the decision is made the judges can give their
opinion in public.

o Judgements shall state reasons on which they are based + names of


judges who took part in deliberations (= not who voted in favor and
who not

o Collegiality of final decision (No dissenting opinions) (= “together”)

vi. Functions of the CJEU


o The CJEU shall (Art.19(3) TEU, more details on specific procedures in the
last section of the course):
- review the legality of EU acts,
- ensure that the Member States comply with obligations under the
Treaties, and -interpret EU law at the request of the national courts and
tribunals (= clarify what EU law is)
o Limits to the jurisdiction of the CJEU:
- Not competent for Common Foreign & Security Policy (Article 24 TEU,
except for Article 40 TEU and Article 275(2) TFEU)
- Not competent for certain aspects of the Area of Freedom, Security and
Justice (Article 276 TFEU : validity or proportionality of law-
enforcement services or the exercise of responsibilities of Member
States as regards maintenance of law and order and internal security)
o Allocation of tasks between the Court of Justice and the General Court
- CJ: preliminary rulings + MS v. MS + most MS v. Institutions and
Institutions v. Institutions cases + appeals
- GC: all other cases (eg. individuals v. Institutions) at first instance

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?

European Law 2016-2017 Stijn Debie 47


6. The European Central Bank or ECB
o A concise ‘ID card’ of the ECB is provided for in Article 282 TFEU
o Key features include:
- The ECB, together with the national central banks of the Member States
whose currency is the euro, conduct the monetary policy of the Union
- he primary objective is to maintain price stability (safeguarding the
value of the Euro) + it shall support the general economic policies in the
EU
- The ECB (= control on economy and banks) alone may authorise the
issue of the euro + shall be independent in the exercise of its powers
and in the management of its finances
SO whenever EU law has impact on economy, the ECB has to be
consulted!!
- Within the areas falling within its responsibilities, the ECB shall be
consulted on all proposed Union acts (and all proposals for regulation at
national level)

7. The Court of Auditors


o Details on this institution can be found at Arts.285-287 TFEU
o = looking at the way money is spend and can sue ministers or others if money
isn’t well spend
o Key features include:
- The Court of Auditors shall carry out the Union's audit (Art.285 TFEU), it
shall examine the accounts of all revenue and expenditure of the Union
(Art.287 TEU)

8. Union’s advisory bodies


- Details on these bodies can be found at Arts.300-307 TFEU

a. The Economic and Social Committee (= ECOSOC)


o Composed of:
- max.350 representatives of organisations of employers, of the
employed, and of other parties representative of civil society, notably in
socio-economic, civic, professional and cultural areas (Art.300(2) TFEU)
o Consultative function (Art.304 TFEU):
• shall be consulted by the EP, by the Council or by the
Commission where the Treaties so provide
• may be consulted by these institutions in all cases in
which they consider it appropriate
• it may issue an opinion on its own initiative

b. The Committee of the Regions


o Composed of:
- max.350 representatives of regional and local bodies who either hold a
regional or local authority electoral mandate or are politically
accountable to an elected assembly (Art.300(3) TFEU)

European Law 2016-2017 Stijn Debie 48


o Consultative function (Art.307 TFEU):
- shall be consulted by the EP, by the Council or by the Commission
where the Treaties so provide
- may be consulted by these institutions in all cases in which they
consider it appropriate (eg. cross-border cooperation)
- it may issue an opinion on its own initiative

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.

1. The EU, an actor as such


- The EU has legal personality (Art.47 TUE)
- Engage legal acts as an entity (= the Comission acts) SO EU law is
binding.
2. Third states
E.g.: Canada (CETA)

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

4. EU member states’ actions outside of the EU Treaties


Eg. Treaty on Stability, Coordination and Governance in the Economic and Monetary
Union also known as ‘Fiscal Compact’ has been signed by 25 EU Member States.
Eg. Treaty Establishing the European Stability Mechanism or ‘ESM’ signed by Euro
area countries

D. Conclusion

Vertical (Art.4(3) TEU) as well as horizontal (Art.13(2) TEU) duties of sincere cooperation

European Law 2016-2017 Stijn Debie 49


COURSE 8

Document analysis 8 – SUBSIDIARITY AND THE ROLE OF NATIONAL PARLIAMENTS

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.

- Protocol n° 1 on the Role of National Parliaments: Article 3


National Parliaments may send to the Presidents of the European Parliament, the Council and the Commission a reasoned
opinion on whether a draft legislative act complies with the principle of subsidiarity, in accordance with the procedure laid
down in the Protocol on the application of the principles of subsidiarity and proportionality.

- Protocol No 2 on the application of the principles of subsidiarity and


proportionality: Article 6
Any national Parliament or any chamber of a national Parliament may, within eight weeks from the date of transmission of
a draft legislative act, in the official languages of the Union, send to the Presidents of the European Parliament, the Council
and the Commission a reasoned opinion stating why it considers that the draft in question does not comply with the
principle of subsidiarity. It will be for each national Parliament or each chamber of a national Parliament to consult, where
appropriate, regional parliaments with legislative powers.

- Protocol No 2 on the application of the principles of subsidiarity


and proportionality: Article 7

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.

European Law 2016-2017 Stijn Debie 50


After such review, the Commission or, where appropriate, the group of Member States, the
European Parliament, the Court of Justice, the European Central Bank or the European Investment
Bank, if the draft legislative act originates from them, may decide to maintain, amend or
withdraw the draft.
Reasons must be given for this decision.

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.

Example of a yellow card procedure – Posted workers Directive

(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

European Law 2016-2017 Stijn Debie 51


applicable definition of a posted worker. The Enforcement Directive also lays down provisions to
improve administrative cooperation between national authorities in charge of posting. For instance, it
provides for an obligation to respond to requests for assistance from the competent authorities in
other Member States within two working days in the case of urgent requests for information and
within 25 working days in non-urgent cases. Moreover, the Directive lists national control measures
that the Member States may apply when monitoring compliance with the working conditions
applicable to posted workers and requires that appropriate and effective checks and monitoring
mechanisms are in place and that national authorities carry out effective and adequate inspections on
their territory in order to control and monitor compliance with the provisions and rules laid down in
Directive 96/71/EC. The full effects of the Directive should become tangible as of mid-2016, as Member
States have until 18 June 2016 to transpose the Directive.

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)

2. What is the minimum number of votes required to trigger a yellow card


procedure?
One third of all the votes allocated to the national Parliaments. Every member
state has 2 votes (if bicameralism: 1 vote per chamber) -> so 19 votes required to
trigger yellow card procedure

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.

European Law 2016-2017 Stijn Debie 52


The Commission carefully analysed the subsidiarity concerns voiced by the national Parliaments and discussed all issues
raised in an open political dialogue with them before drawing its conclusions. The purpose of the review of the arguments
raised was to determine whether the objective of the proposed amending Directive can indeed be better achieved at Union
level. Today, the Commission reaffirms that it is appropriate to define at EU level the rules applicable to the posting of
workers, as it has been the case since 1996. The proposal seeks to ensure that workers carrying out work at the same
location are protected by the same mandatory rules, irrespective of whether they are local workers or posted workers. The
obligation for all Member States to apply the rules in all sectors of the economy cannot be established at national level but
must be laid down at Union level. The proposal furthermore fully and explicitly respects the competence of Member States
to set wages in accordance with national practices.
While, according to the subsidiarity control mechanism, the Commission's review of arguments was confined to the
question of subsidiarity, it is also sending individual replies to the national Parliaments addressing their specific remarks and
concerns which are not strictly related to subsidiarity. These letters will be made public here over the coming days. Given
their political relevance, the Commission will continue its political dialogue with the Parliaments on this file in the coming
months throughout the legislative process. The decision today should open the way for further progress on the file in
Council and in the European Parliament.

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.

European Law 2016-2017 Stijn Debie 53


Detailed outline 8

III. The normative function of the EU: what does the EU do?

A. The original source of EU law: primary law: primary law provides a


road map

1. The EU Treaties as the starting point (TEU & TFEU) (reminder


from I.D of the course)

o The EU treaties perform a ‘constitutional’ function in the EU


legal order
o Secondary law = law adopted on the basis of the treaties
o Tertiary law = law adopted from secondary law

2. The policies of the European Union


The Treaty on the Functioning of the European Union (or TFEU) ‘determines the areas
of, delimitation of, and arrangements for exercising its competences’ (Article 1(1) TFUE)
+ Common Foreign & Security Policy in the TEU).

The EU is active in a wide range of policy areas, overview available at


https://europa.eu/european-union/topics_en + these topics explained in the treaties.

B. Defining the existence of an EU competence: what can the EU do?

1. The principle of conferral (art. 5 (1)-(2) TEU)

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 (Reminder: Art.13(2) TEU on conferred powers & EU institutions)

2. The choice of legal basis

b. Importance of the choice of legal basis

o A legal basis is a provision of the EU Treaties or of EU secondary law that


enables EU institutions to take action.
Eg. Compare Article 2 TEU with Article 18(2) TFEU: Art. 18(2) TFEU
specifically enables that the EU institutions to act BUT Art. 2 TEU just states
fundamental values

o A legal basis performs several functions, it…


- Defines existence of an EU competence (EU v. MS)
- Defines the procedure to be used to indeed exercise this competence

European Law 2016-2017 Stijn Debie 54


(which EU institution is involved and how).
- defines the type of EU instrument that may be used (see below section
on sources of EU legal constraints)

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)

> Enhances legal certainty

c. Principles governing the choice of legal basis

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)

i. Identify the main objective of a specific EU initiative

‘[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’

- Eg. scan through the table of contents of the TFEU

o What if several provisions could serve as a legal basis?

- Opt for the most specific one

- In any case, no circumvention of an exclusion of harmonization


(eg. exclusion in Art.153(5) TFEU)

o What if an initiative pursues several objectives?

- Look for the legal basis matching the predominant objective (‘centre of
gravity’) (CJEU, Case 36/98, Spain v Council on ‘Danube River’)

- Yet, if several objectives do have the same importance and are


inseparably linked:
• Use multiple legal bases (CJEU, C-165/87, Commission v.

European Law 2016-2017 Stijn Debie 55


Council on ‘tariff and statistical nomenclature’, before this case,
one legal bases per action).
• But, if different legal bases have different procedures…
o Dual basis not possible if procedures are incompatible
(CJEU, Case 300/89, Commission v. Council on
‘titanium dioxide’).
o Double check the interplay between the legal bases,
one may give way to the other (CJEU, Case 300/89,
Commission v. Council on ‘titanium dioxide’)
o Further complex case law (see advanced course on
external relations of the EU)

d. The dynamics of EU competences

i. Certain legal bases have a particularly large scope (=ruim


toepassingsgebied)
Eg. Article 114(1) TFEU
Eg. Commission Proposal from 14.9.2016 for a Directive on certain
permitted uses of works and other subject-matter protected by copyright
and related rights for the benefit of persons who are blind, visually
impaired or otherwise print disabled.
Note: try to look at the most important objective!

ii. Implied powers (& EU external relations)

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

o EU external competences, eg. Art.216(1) TFEU (see also Art.3(2) TFEU on


the nature of the competence):
‘ The Union may conclude an agreement with one or more third countries
or international organisations where the Treaties so provide or where the
conclusion of an agreement is necessary in order to achieve, within the
framework of the Union's policies, one of the objectives referred to in the
Treaties, or is provided for in a legally binding Union act or is likely to affect
common rules or alter their scope’

iii. Article 352 TFEU: the so-called ‘flexibility clause’

 Article 352 (1) TFEU


‘If action by the Union should prove necessary, within the framework of
the policies defined in the Treaties, to attain one of the objectives set
out in the Treaties, and the Treaties have not provided the necessary
powers, the Council, acting unanimously on a proposal from the
Commission and after obtaining the consent of the European
Parliament, shall adopt the appropriate measures. Where the measures
in question are adopted by the Council in accordance with a special
legislative procedure, it shall also act unanimously on a proposal from
the Commission and after obtaining the consent of the European
Parliament.’

European Law 2016-2017 Stijn Debie 56


Limitations:

- national parliaments’ attention (Art.352(2) TFEU) (Commission has the duty to


inform the Parliament who act as whatchdog).
- respect for exclusion of harmonization (Art.352(3) TFEU)
- CFSP (Art.352(4) TFEU)
- Declaration 42: art. 40 second paragraph TEU

iv. Primacy and direct effect

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

- Examples listed in Art.3 TFEU


e.g.: c: monetary competence, competence rule for economy (= EU zone)

ii. Shared competences

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 Pre-emption: The Member States shall exercise their competence to the


extent that the Union has not exercised its competence + again to the extent
that the Union has decided to cease exercising its competence.
= whatever is left over by the EU, is for the MS. (default category: art. 4 (1)
TFEU).
 Examples listed in Art.4(2) TFEU

o Certain areas of EU shared competences however operate without pre-


emption, examples in Art.4(3-4) TFEU (compare it with the federal
governance& communies in Belgium)

European Law 2016-2017 Stijn Debie 57


iii. Support, coordination or supplement competences

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’

Note: without thereby superseding MS competence in these areas + no


harmonisation of Member States' laws or regulations
 Examples listed in Art.6 TFEU, e.g. culture.

= only support what a MS is doing, no replacement in any way!

iv. Specific common policies and related competences

o The Member States shall coordinate their economic and employment


policies (Art.2(3) TFEU, and further guidance in Art.5 TFEU)
Eg. European Semester (more for those interested at
https://ec.europa.eu/info/european-semester_en)

o CFSP (Art.2(4) TFEU, and further guidance in TEU)


Eg. illustrations of latest developments in that field available at
https://eeas.europa.eu/topics/common-foreign-security-policy-cfsp_en

‘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)

C. Framing the exercise of an EU competence: Necessity and extent of EU intervention

o Art.5(1) TEU:

- 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.
- Draft legislative acts shall be justified with regard to the principles of
subsidiarity and proportionality + with detailed statement making it possible
to appraise compliance with the principles indeed (Protocol 2, Art.5)

1. Subsidiarity

o Function: “[Subsidiarity] defines whether or not action must be taken at


[European Union] level” (T.Tridimas)
o Definition (Article 5(3) TEU):
- 2 stages evaluation of efficiency:
 ‘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’

European Law 2016-2017 Stijn Debie 58


 & ‘can rather, by reason of the scale or effects of the
proposed action, be better achieved at Union level’

- Only for non-exclusive competences (if there is a exclusive


competence, the subsidiarity rule isn’t necessary).
- Control over the implementation of the principle
= national Parliaments can read if there is a breach of the principle
of 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

See further http://www.ipex.eu/IPEXL-WEB/about/aboutIpexl.do

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)

2. What is the minimum number of votes required to trigger a yellow card


procedure?
One third of all the votes allocated to the national Parliaments. Every member
state has 2 votes (if bicameralism: 1 vote per chamber) -> so 19 votes required to
trigger yellow card procedure

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.

! Explanation of difference + impact see Handbook: 7-031:


- These new Protocol on the principles of subsidiarity and proportionality concerns the
control of the national parliaments over the application of the principle of subsidiarity:
- Any Commission proposal or other draft legislative act or any position
taken by the EU Parliament and the Council in the course of a legislative
process will be sent to these national parliaments (= art. 4 of the protocol,
see also Prot. 1)
- IF this act is based on the flexibility clause (art. 352 TFEU) this use also
have to be mentioned to the Parliaments (art. 352 (2) TFEU).
- Within 8 weeks:
Yellow card  Any national Parliament may send an
opinion stating the reasons why the draft doesn’t comply
procedure with the principle (note: art. 6 for the regional

European Law 2016-2017 Stijn Debie 59


Parliaments!, see 14-010 for Belgium which has Regions
and Communities on the same level).
- The Commission, the EU Parliament and the Council take account of the
reason.
- The act must be reviewed where reasoned opinion on non-compliance
have to obtain at least 1/3 of the votes of national Parliaments (1/4 In
case of Commission proposal or an initiative from a group of MS).
- After this review, the Commission,… may maintain, amend or withdraw the
opinion.

- The Lisbon Treaty didn’t introduced the red procedure:


- IF a 2/3 majority of the national Parliaments votes for the reasoned
Orange card opinion, will it force the Commission the withdraw or amend the proposal.
procedure - But the Protocol on the principles of subsidiarity and proportionality did in the name of a
“orange card”:
- In case of simple majority, the Commission must review the proposal.
- The Commission votes after this review, and in case of 55% of members of
the MS or majority of the EU parliament, the legislative proposal shall not
be given further consideration.
- Every national parliament has 2 votes. (a bicameral parliament has 1 vote
per parliament).

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.

European Law 2016-2017 Stijn Debie 60


Tridimas)
o Definition (Article 5(4) TEU): ‘the content and form of Union action shall not
exceed what is necessary to achieve the objectives’
o Suitability to achieve the objectives (adequacy)
o & No excess (necessity stricto sensu, less restrictive alternative?)
= 2 steptest: 1 = adequacy test, 2 = necessity stricto sensu!!

o Implementation of the principle:


o See Protocol 1 on the Role of National Parliaments & Protocol No 2 on
the application of the principles of subsidiarity and proportionality

3. Mainstreaming duties

o Articles 7 to 17 TFEU: number of political priorities (= “mainstreamed”)

Eg. Overall consistency of Union action (Art.7 TFEU)


Eg. Equality between men and women (Art.8 TFEU) and non-discrimination
more generally (Art.10 TFEU)
Eg. Environmental protection (Art.11 TFEU)

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

European Law 2016-2017 Stijn Debie 61


of the TFEU does not exclusively list all the shared competences contained in all the legal bases of the
TFEU but indeed there is no EU competence if there is no legal base.
What is the difference between the supporting competences and the shared competences without
pre-emption in art. 4 (3-4) TFEU? In the supporting competences the member states can also
regulate the matter, but they cannot adopt acts against EU law, isn't this the same as in the shared
competences without pre-emption?
Handbook 7-024-7-025
No.
- Pre-emption means that in areas of shared competence MS may only act to the extent that
the EU has not exercised its competence. Some shared competences however operate
without pre-emption, these can be found in Art.4(3-4) TFEU. This means that even though
the EU would have exercised its competence, the MS may still exercise their competence.
- Supporting competences means that the competence is still in the hands of the MS. The
Union can only support, coordinate or complement the actions of the MS. These areas are
not shared competences.
- Shared competence without pre-emption: EU has competence + MS has competence also
when EU acted
- Supporting competence: MS retains competence + EU can only support, coordinate or
complement

COURSE 9

Document analysis 9 - Secondary law – Treaty articles

CHAPTER 2 LEGAL ACTS OF THE UNION, ADOPTION PROCEDURES AND OTHER PROVISIONS

SECTION 1 THE LEGAL ACTS OF THE UNION

- Article 288 TFEU


To exercise the Union's competences, the institutions shall adopt regulations, directives, decisions, recommendations and
opinions.

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.

Recommendations and opinions shall have no binding force.

- 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.

3. Legal acts adopted by legislative procedure shall constitute legislative acts.

4. (…)

European Law 2016-2017 Stijn Debie 62


- Article 290
1. A legislative act may delegate to the Commission the power to adopt non-legislative acts of general application to
supplement or amend certain non-essential elements of the legislative act.
The objectives, content, scope and duration of the delegation of power shall be explicitly defined in the legislative acts.
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.

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.

- Data Protection Directive


 Main content of the Directive: The Data Protection Directive for the police and criminal justice sector will ensure that
the data of victims, witnesses, and suspects of crimes, are duly protected in the context of a criminal investigation or a
law enforcement action. At the same time more harmonised laws will also facilitate cross-border cooperation of police
or prosecutors to combat crime and terrorism more effectively across Europe.
 Please read below the selected parts of the new Data protection Directive, which you can find below:

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

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,


Having regard to the Treaty on the Functioning of the European Union, and in particular Article 16(2) thereof,
Having regard to the proposal from the European Commission,
After transmission of the draft legislative act to the national parliaments,
Having regard to the opinion of the Committee of the Regions,
Acting in accordance with the ordinary legislative procedure,
(…)

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.
(…)
(…)

European Law 2016-2017 Stijn Debie 63


90. In order to ensure uniform conditions for the implementation of this Directive, implementing powers (as described in
Article 291(2) TFEU, The Commission has to practically implement the rules of the original legislation, in casu this Directive)
should be conferred on the Commission with regard to the adequate level of protection.

(…)

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

CHAPTER I General provisions

Article 1 Subject-matter and objectives

Article 2 Scope

Article 3 Definitions

CHAPTER II Principles

CHAPTER III Rights of the data subject

CHAPTER IV Controller and processor

Section 1 General obligations

Section 2 Security of personal data

Section 3 Data protection officer

CHAPTER V Transfers of personal data to third countries or international organisations

CHAPTER VI Independent supervisory authorities

CHAPTER VII Cooperation

CHAPTER VIII Remedies, liability and penalties

CHAPTER IX Implementing acts

Article 58 Committee procedure

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.(…)

CHAPTER X Final provision

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.

Article 64 Entry into force

This Directive shall enter into force on the day following that of its publication in the Official Journal of the
European Union.

European Law 2016-2017 Stijn Debie 64


Article 65 Addressees

This Directive is addressed to the Member States.

Questions document analysis 9

1. What is the legal base?

Article 16(2) TFEU


 see preamble directive: there is always the legal basis

! art. 288 TFEU is not the legal basis: it’s just an article that explains the types of acts

2. Is this a Directive or a Regulation?

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

3. Is this a legislative or a non-legislative act?

It’s a legislative act: in title no mentioning of delegated or implementing act

! directive is not always a legislative act: it can also be a delegated or implementing act

4. What is the deadline for implementation?

6 May 2018 (art 63): date of publishing = date of entry into force (art 64)

Detailed outline 9

D. Overview of the sources of EU legal constraints: What EU legal instruments are


really out there?
= Chapter 22 HB: sections 22-001 to 22-022, 22-036 to 22-038, 22-043 to 22-044, 22-047
to 22-048, 22-059 to 22-079, 22-095 to 22-101
1. Primary law and rules having a high rank in the EU legal order?
a. Primary law and rules having a high rank in the EU legal order: Overview of EU
primary law

o “The Treaties” : TUE + TFUE


o Reminder: this includes amending/accession treaties: if states become
member & EU have to add something to the treaties or add the treaties to
their law.
o Reminder: Protocols (Art.51 TEU) + Charter of Fundamental Rights of the
EU (Art.6(1) TEU)
o Unwritten source: general principles of EU law
e.g.: arrest Costa-Unal
o The origins:
‘respect for fundamental rights forms an integral part of the general
principles of law protected by the Court of Justice. The protection of such

European Law 2016-2017 Stijn Debie 65


rights, whilst inspired by the constitutional traditions common to the
Member States, must be ensured within the framework of the structure
and objectives of the Community.’ (CJEU, Case 11/70 Internationale
Handelsgesellschaft)
o BUT these contitutional traditions sometimes have to be ensured, e.g.
fundamental rights, see b. below.
o Examples: fundamental rights and others

b. The protection of fundamental rights in the EU legal order


i. Article 6 TEU maps out the various sources for the protection of
fundamental rights in the EU (e.g. protection for personal data, see doc.
Analysis):
- Charter of Fundamental Rights of the European Union (Art.6(1) TEU)
- Legal value: identical to EU Treaties (THIS IS NOT ECHR !!!)
- Overview: xml file!
Note : Protocol 30 on the special position of UK and Poland +
European Council conclusions of 29-30 October 2009 on the
application of this protocol to the Czech Republic

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’.

- …to an international agreement binding on the EU?


- Duty set by Art.6(2) TEU: The Union shall accede to the ECHR
- Draft agreement providing for the accession of the European Union to the
Convention for the Protection of Human Rights and Fundamental
Freedoms (10 June 2013)
- But, process put on hold by Opinion of the Court (Full Court) of 18
December 2014

iii. General principles of EU law (Art.6(3) TEU) According to Art.6(3) TEU:


- ECHR + constitutional traditions common to the Member States
- General principles remain relevant today (eg. CJEU, Case C-555/07 Kücükdeveci )

iv. How do these sources interact?


- This is complex, see CFEU
- Rights protected in the Charter which correspond to rights guaranteed by
the ECHR: meaning and scope shall be the same as those laid down by the
In art. 53 CFEU we have a
ECHR; Union law may provide more protection (Art.52(3) CFEU)
repetition the principles in art.
52 as a general description.
- Rights protected in the Charter which correspond to
constitutional traditions common to the Member States: rights shall be
interpreted in harmony with those traditions (Art.52(4) CFEU)

European Law 2016-2017 Stijn Debie 66


= if there’s an overlap, than the Charter will be interpret below the
standards (= standstill”)
- Nothing in the Charter ‘shall be interpreted as restricting or adversely
affecting human rights and fundamental freedoms as recognized, in their
respective fields of application, by Union law and international law and by
international agreements to which the Union or all the Member States are
party, including the ECHR, and by the Member States' constitutions’
(Art.53 CFEU)
= Charter is there to offer more protection!
Note:
 there exists specific explanations providing further
guidance in the interpretation of the Charter. (= how to
read the Charter).
 the relationship between the various sources has led to a
complex case law explored in more advance courses on
EU law
 some fundamental rights are also protected by specific
provisions of the EU treaties and/or EU secondary law
(Eg. 18 TFEU and EU anti-discrimination Directives)
and/or as part of international law to which all Member
States or the EU as such are bound (Eg. United Nations
Convention on the Rights of Persons with Disabilities,
reminder: EU is UN member.)

The difference between a legislative and a non-legislative act once more?

There are three ways to distinguish between legislative and non-legislative acts:

Legislative act Non-legislative act


Legal base In the TFEU In a legislative act
Procedures for adoption On the basis of legislative On the basis of non-
procedure legislative procedure
Title of the act Does not mention anything Mentions: delegated or
specific implementing

COURSE 10
Document analysis 10 – VI.A. Internal Decision Making

- Abstract of article 289 TFEU


Article 289 (1) TFEU

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.

- Commission proposal for a Directive


Abstract of Commission proposal for a Directive amending Council Directive 91/477

European Law 2016-2017 Stijn Debie 67


“Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Council Directive 91/477/EEC
on control of the acquisition and possession of weapons

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 114 thereof,

Having regard to the proposal from the European Commission,

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.

(3)Certain issues in Directive 91/477/EEC need further improvement.

[…]

(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.

(19)Directive 91/477/EEC should therefore be amended accordingly”

- Which stage in the procedure?


- Legal basis: Commission: TFEU/art 114 ; TFEU/art 294
- 18/11/2015 : Adoption by Commission, TFEU/art 114 ; TFEU/art 294,
procedure: Co decision procedure (COD)
- 24/11/2015 : Discussions within the Council or its preparatory bodies:
Ordinary legislative procedure (COD)
- 15/12/2015 : Discussions within the Council or its preparatory bodies
- 27/01/2016 : Discussions within the Council or its preparatory bodies
- 29/01/2016 : Discussions within the Council or its preparatory bodies
- 04/02/2016 : Discussions within the Council or its preparatory bodies
- 04/03/2016 : Discussions within the Council or its preparatory bodies
- 21/03/2016 : Discussions within the Council or its preparatory bodies
- 27/04/2016: European Economic and Social Committee opinion
- 18/05/2016 : Discussions within the Council or its preparatory bodies,
Procedure: Ordinary legislative procedure (COD)
- 23/05/2016 : Discussions within the Council or its preparatory bodies
- 08/06/2016 : Discussions within the Council or its preparatory bodies

Questions:

European Law 2016-2017 Stijn Debie 68


What is the legal base for the proposal for this Directive?
Article 114 TFEU (see preamble)
 this indicates what kind of adoption procedure that should be followed
2. Which legislative procedure has been followed?
Ordinary legislative procedure:
- name: council and parliament
- in accordance with the ordinary legislative procedure
3. Which institutions are involved?
- proposal by commission
- opinion by European Economic and Social Committee
- decision-making by council and parliament
4. At which stage is the proposal for the Directive at this moment?
the commission has put forward a proposal, but Council and parliament haven’t adopted yet

Detailed analysis 10
2. Secondary law
= sets out on primary law
= 2 big categories: international agreements between EU and third states and
legislative acts.

a. International agreements between the EU and third states


o The EU may conclude international agreements (Article 216(1) TFEU)
o International agreements concluded by the EU are binding on the EU and its
Member States (by virtue of EU law, Art.216(2)TFEU)-> rank higher than other
forms of secondary law
o Role of the CJEU in assessing the compatibility of an international agreement
with EU primary law
o Ex-ante (Article 218(11) TFEU): before it gets binding, the CoJ may decide that
the agreement will breach EU law on a question of the contracting parties. If the
CoJ rule against the agreement, the parties can only amend the agreement OR
revise the Treaties!
o Ex-post: annulment action – more in the last section of the course - against the
EU institutions’ decision to conclude an international agreement: if COJ annul
that the agreement breaches EU law, the agreement must be anulled.

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’

European Law 2016-2017 Stijn Debie 69


Note: own classification, this is most often presented as a form of secondary law

o An EU (legislative) act may delegate powers to… (subject to specifics of Art.290


TFEU, see further below)
o or confer implementing powers on the Commission (subject to specifics of Art.291
TFEU, see further below):
- These ‘non-legislative acts’ may also take the form of legal acts described
in Article 288 TFEU (see below)
= this is more technical BUT there is no legislative procedure
required!
- BUT: delegated & implementing acts will be inserted in the title of the
corresponding type of act
= SO if delegated or implementing action isn’t mentioned, than it’s just
ordinary legislation or secondary law!

4. Other specific sources of law relevant for the EU legal order:


Note: specific provisions for the CFSP

i. Case law of the CJEU


= Same legal value as the act of EU law it interprets

ii. International law as such


- Certain rules of international law are binding on all EU Member States and
thus have special significance in the EU legal order:
 EU may be competent to actually implement Member
States’ international obligations
 Or international obligations may constitute a source of
inspiration for the discovery of general principles of EU
law
Eg. Customary international law
Eg. UN Charter
- Possible conflicts with EU law & autonomy of the EU legal order
 Eg. CJEU, C-584/10 P, C-593/10 P and C-595/10 P,
Commission and others v. Kadi:

‘European Union measures implementing restrictive measures


CoJ will check if the measures for
decided at international level enjoy no immunity from jurisdiction
the UN charter do not infringe the
[...]. [W]ithout the primacy of a Security Council resolution at the
EU law: UN is a very important
international level thereby being called into question, the
organization: so the EU will take
requirement that the European Union institutions should pay due
measures in case measures for the
regard to the institutions of the United Nations must not result in
international breaches EU law so
there being no review of the lawfulness of such European Union
the EU law is conform the
measures, in the light of the fundamental rights which are an integral
international law!.
part of the general principles of European Union law.’

European Law 2016-2017 Stijn Debie 70


5. EU legal acts: a nomenclature (= naamgeving, een systematisch overzicht van de EU
acts).

i. Legal acts described in Article 288 TFEU

- As stated above, EU legislative acts (which form part of EU secondary law)


as well as EU ‘tertiary’ acts may take the form of legal acts defined in
Article 288 TFEU:
 Regulation: general application + binding + directly
applicable in all Member States
 Directive: binding as to the result to be achieved upon
each Member State to which it is addressed + but choice
of form and methods transposition period (specified at
the end of the said instrument)
 Decision: binding + a decision which specifies those to
whom it is addressed shall be binding only on them

 Recommendations & opinions: no binding force


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.
We discussed that the case law of the CJEU is a source of law for the EU legal order
and that the case law has the same legal value as the EU act it interprets. Does this
mean that primary law would for example take precedence on the interpretation
of the CJEU on secondary law? Also, as the CJEU is such an important source of EU
law, is it bound by precedent?
Yes to the first question.
No to the second question, the CJEU is not bound by precedent. The CJEU is allowed
to review or alter its point of view on a certain matter.

- Reminder: ‘delegated’ & ‘implementing’ acts will be inserted in the title of


the corresponding type of act

European Law 2016-2017 Stijn Debie 71


Doc.analysis.9.
1. What is the legal base?
Article 16(2) TFEU
 see preamble directive: there is always the legal basis
! art. 288 TFEU is not the legal basis: it’s just an article that explains the types of acts
2. Is this a Directive or a Regulation?
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
3. Is this a legislative or a non-legislative act?
It’s a legislative act: in title no mentioning of delegated or implementing act
! directive is not always a legislative act: it can also be a delegated or implementing
act
4. What is the deadline for implementation?
6 May 2018 (art 63): date of publishing = date of entry into force (art 64)

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)

Note: pre-Lisbon, specific legal instruments could be adopted in the framework of


the third pillar of the EU. Some of these instruments still exist although this is less
and less frequent (eg. Framework Decision 2002/584/JHA of 13 June 2002 on the
European arrest warrant)

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

SECTION E WILL NOT BE DISCUSSED IN CLASS, IT MERELY PROVIDES FURTHER ILLUSTRATIONS OF


ELEMENTS ALREADY DISCUSSED IN SECTION III.

1. ‘The Union shall establish an internal market’ (see Chapter 9)


o (Art.3(3) TEU)
o Art.26(1-2) TFEU:
‘1. The Union shall adopt measures with the aim of establishing or ensuring
the functioning of the internal market, in accordance with the relevant
provisions of the Treaties.
2. The internal market shall comprise an area without internal frontiers in
which the free movement of goods, persons, services and capital is ensured in
accordance with the provisions of the Treaties.’

European Law 2016-2017 Stijn Debie 72


2. Examples from the free movement of goods
a. Example of a legal base
o Art.114(1) TFEU
o Example of an instrument adopted thereupon

Directive 2016/2102 of the European Parliament and of the Council of 26 October


2016 on the accessibility of the websites and mobile applications of public sector
bodies (http://eur-
lex.europa.eu/legalcontent/EN/TXT/?qid=1481111256320&uri=CELEX:32016L210,
doesn’t exist anymore!)

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 […]’

The combined effects of these provisions on domestic competences is well


illustrated by CJEU, Case 121/85, Conegate [1986] ECR 1007, only paragraphs 1 to 3
and 13 to 21

C-121/85 - Conegate v HM Customs & Excise (Abstracts)

1. By an order of 30 November 1984, which was received at the Court on 29 April


1985, the High Court of Justice, Queen's Bench Division, referred to the Court
for a preliminary ruling under Article 177 of the EEC Treaty (now Article 267 TFEU) a
number of questions concerning the interpretation of Articles 36 (now Article 36 TFEU) and
234 of the EEC Treaty in order to enable it to assess the compatibility with Community law of
certain provisions of domestic customs legislation.

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.

3 Following a complaint laid by the customs authorities, the Uxbridge Magistrates


Court ordered the forfeiture of the goods. That decision was upheld by the

European Law 2016-2017 Stijn Debie 73


Southwark Crown Court. Conegate appealed by way of Case Stated against the
Crown Court's decision to the High Court, contending that in the particular
circumstances the forfeiture of the goods in question constituted an infringement
of Article 30 of the EEC Treaty (now Article 34 TFEU) which could not be justified on
grounds of public morality within the meaning of Article 36 of the Treaty (now Article 36
TFEU).

[…]

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

European Law 2016-2017 Stijn Debie 74


possible to conclude from the applicable rules, taken as a whole, that their purpose
is, in substance, to prohibit the manufacture and marketing of those products.

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.

3. Examples from EU citizens’ rights in the internal market


= Chapter 8: 8-008 to 8-011
a. Example of Treaty provisions creating rights for EU citizens and referring to further
legislation to specify their scope
o Article 20 TFEU (ex-Article 17 TEC)
‘1. Citizenship of the Union is hereby established. Every person holding the
nationality of a Member State shall be a citizen of the Union. Citizenship of
the Union shall be additional to and not replace national citizenship.
2. Citizens of the Union shall enjoy the rights and be subject to the duties
provided for in the Treaties. They shall have, inter alia:
(a)
the right to move and reside freely within the territory of the Member

European Law 2016-2017 Stijn Debie 75


States; […]These rights shall be exercised in accordance with the conditions
and limits defined by the Treaties and by the measures adopted thereunder.’

o Article 21(1-2) TFEU (ex-Article 18 TEC)


‘1. Every citizen of the Union shall have the right to move and reside freely
within the territory of the Member States, subject to the limitations and
conditions laid down in the Treaties and by the measures adopted to give
them effect.
2. If action by the Union should prove necessary to attain this objective and
the Treaties have not provided the necessary powers, the European
Parliament and the Council, acting in accordance with the ordinary legislative
procedure, may adopt provisions with a view to facilitating the exercise of
the rights referred to in paragraph 1.’

b. Example of an instrument adopted on multiple legal bases to that effect including


Art.21 TFEU (or ex-Art. 18 TEC) (as discussed in the exercise session with Dr. V.
Verbist)

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.

European Law 2016-2017 Stijn Debie 76


COURSE 11
Document analysis 11 IV. B. EXTERNAL DECISION MAKING

o Abstracts of Treaty articles


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

- Article 218 (1) (2) (3) (6) (10) (11) TFEU


1. Without prejudice to the specific provisions laid down in Article 207, agreements between the Union and third countries
or international organisations shall be negotiated and concluded in accordance with the following procedure.

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.

o The Paris agreement on climate change


Have a look at Council Decision on the conclusion, on behalf of the European Union, of the Paris Agreement adopted under
the United Nations Framework Convention on Climate Change via the following link:
http://data.consilium.europa.eu/doc/document/ST-12256- 2016-INIT/en/pdf

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

European Law 2016-2017 Stijn Debie 77


strengthening of the global response to climate change. The Paris Agreement replaces the approach taken under the 1997
Kyoto Protocol. The Paris Agreement, inter alia, sets out a long-term goal in line with the objective to keep the global
temperature increase well below 2°C above pre-industrial levels and to pursue efforts to keep it to 1.5°C above pre-
industrial levels.

Questions document analysis 11

1. Which type of legal instrument is the so-called ‘Paris agreement’?

mixed agreement

2. Which decision making procedure has been followed in order to adopt the Paris agreement?

ordinary legislative procedure

3. What is the importance of the EU acting as a dynamic actor on the international scene instead of
the Member States separately?

it allows EU and member states to have a stronger negotiation power

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.

European Law 2016-2017 Stijn Debie 78


Regulation (EU) No 182/2011 lays down the general principles concerning mechanisms for control by
EU countries of the Commission's exercise of implementing powers. It put into practice Article 291 of
the Treaty on the Functioning of the European Union (TFEU) on implementing acts.

Under the Regulation, the committees use two types of procedures:

• 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.

 This procedure is mentioned in Detailed Outline 12, page 2

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?

Article 114 TFEU (see preamble)

=> this indicates what kind of adoption procedure that should be followed

1. Legislative procedures: adopt legislative acts


o Article 289(1-2) TFEU: two types of legislative procedures
- ordinary legislative procedure: ordinary + joint adoption by the European
Parliament and the Council
- special legislative procedure: in specific cases provided for by the
Treaties + adoption by the Council with the participation of the European
Parliament (or by the European Parliament with the participation of the
Council)
o Legal acts adopted by any of these 2 legislative procedure shall constitute legislative acts

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)

European Law 2016-2017 Stijn Debie 79


- The Commission may also be softly invited to act: by EP (Art.225 TFEU)
or Council (Art.241 TFEU) or EU citizens’ initiative (Art.11(4) TEU)
Note: they (institutions & citizens) can only invite the Commission, not
oblige them!!

o Control by the Commission over its proposal?


- Council can only amend the Commission proposal by unanimity
(Art.293(1) TFEU, with exceptions such as in conciliation/third reading of
the ordinary legislative procedure below) + within the scope of the
initial proposal
= the Council can disagree with the proposal BUT if they want to change
the proposal, they can only change it within the purpose of the
proposal.
- As long as the Council has not acted (= until the negotiations are
advanced), the Commission may (= steering role):
 alter its proposal (Art.293(2) TFEU)
 withdraw its proposal but conferral of powers & institutional
balance require it to state reasons and comply with duty of loyal
cooperation (CJEU, C-409/13, Council v. Commission on
‘Macro-financial assistance’)
 these powers stop when the proposal reaches the second
reading of the ordinary legislative procedure

- 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)

b. The ordinary legislative procedure


o Article 294 TFEU explains the various stages of this procedure
o It is best read in conjunction with the following interactive scheme (note click on
small clock and V items for more details on time limits and voting
arrangements):
http://www.europarl.europa.eu/aboutparliament/en/20150201PVL00004/Legis
lative-powers (zie afgedrukte pdf & schema).
1. Start = Commission proposal
2. transmitted to the EP for a first reading without a time limit (=
examination and possible amendment or adaptation)
3. EP sends it to the Council: they can agree with the proposal (which can be
amend/adapt in the meantime by the EP), amend it or disagree. After the
Council’s reading it will be send back to the EP, also when the Council don’t
agree.
4. 2nd reading in the EP (WITH TIME LIMIT: 3 months): they can accept the
Council’s amendments or reject it. BUT EP can also make new
amendments, in this case the Council has a 2nd reading.

European Law 2016-2017 Stijn Debie 80


5. 2nd reading Council: in case the Council accept the new proposal, the
proposal is adopted, if not the proposal goes to the Conciliation
Committee
6. Conciliation Committee: equal members of the EP and Council
representatives to reach an agreement on a joint text. If not: the legislative
proposal is not adopted. If they do reach an agreement: 3rd reading in EP
7. 3rd reading in EP: voting in plenary (amendment or adaptation is
impossible!)
8. 3rd reading in Council

SEE HB Chapter 16 & art. 294 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

c. The special legislative procedures


o Specific Treaty provisions provide for a different interplay between Council &
EP: one adopts the act and the other only ‘participates’ in the adoption (often to
the detriment of the EP)
o The consent procedure
- no possibility to propose amendments
- consent of the Counsil required
- EP lesser role BUT the most influence
- but (threat of) veto
- Eg. Art.19 TFEU, Art.352(1) TFEU
o The consultation procedure
- Council must consult (and again if substantial changes are made to
initial proposal) + must exhaust all possibilities to obtain an opinion +
wait for it before adopting its final position + state that it took it into
account (CJEU, Case 138/79 SA Roquette Frères v Council)
- EP has a duty of sincere cooperation: only his consultation is required
and the EP gives his opinion which is not binding for the Council.

d. Formal requirements for legislative acts to finally enter into force (Art.297(1) TFEU)

European Law 2016-2017 Stijn Debie 81


o Signed by (each of) the President(s) of the institution(s) who adopted the act
o Publication in the Official Journal of the European Union
- Publicly available: at http://eur-lex.europa.eu/oj/direct-access.html
- 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
o Reminder: distinguish from implementation/transposition periods for
directives: transposition period is to implement an act in the national
system (circa 2 years).

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?

Ordinary legislative procedure:

- name: council and parliament


- in accordance with the ordinary legislative procedure3. What is the importance of the EU
acting as a dynamic actor on the international scene instead of the Member States
separately?

Doc.analysis.10. Which institutions are involved in the adoption of this Proposal and in which
ways?

- proposal by commission

- opinion by European Economic and Social Committee

- decision-making by council and parliament

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

European Law 2016-2017 Stijn Debie 82


COURSE 12
Document analysis 12- PRELIMINARY RULING AND INFRINGEMENT ACTION

A. The EU legal order is ‘integrated’ in that of the Member States


i
A. EU law has unique effects in domestic legal orders

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]

European Court report English special edition Page 00585

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 an interpretation is not necessary


The complaint is made that the Milan Court has requested an interpretation of the Treaty
which was not necessary for the solution of the dispute before it. Since, however, Article 267
TFEU is based upon a clear separation of functions between national courts and the Court of
Justice, it cannot empower the latter either to investigate the facts of the case or to criticize

European Law 2016-2017 Stijn Debie 83


the grounds and purpose of the request for interpretation.

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

European Law 2016-2017 Stijn Debie 84


the rights and obligations arising under the Treaty carries with it a permanent limitation of

their sovereign rights, against which a subsequent unilateral act incompatible with the concept
of the Community cannot prevail. 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; […]

Questions document analysis 12


1. What is the reasoning of the ECJ behind its decision?
Article 267 TFEU, teleological reasoning
2. What is the difference between Union law (Community law) and international law?
No primacy of international law
3. 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.
4. Can you explain the notion of ‘dual vigilance’?
There are 2 parties that need to be vigilant (waakzaam) on the implementation and
enforcement of EU law:
- EU institutions + member states
- individuals

European Law 2016-2017 Stijn Debie 85


EXTRA: direct effect in international law vs. EU law
International law only direct effect possible in international tribunals. EU law has direct
effect in all national courts.

Detailed Outline 12

2. Non-legislative procedures: how do EU institutions adopt non-legislative acts?

Note: triple check we talk about a non-legislative act


 First: legal basis: the Leg. Act is based on TEU or TEU, the non-leg. act is
based on a leg. Act
 Second: procedure of adoption: a leg. Act is adopted by a legislative
procedure, a non-legislative act by a non-legislative procedure.
 Third: the title: by a legislative act there is nothing in the title, by a legislative
act there’s a implementation or a delegation.

a. Adoption of delegated acts


o Reminder: ‘tertiary sources of EU law’
o Definition of delegated act (Art.290(1) TFEU)
 A legislative act may delegate to the Commission (normally no legislator) the
power to adopt (cumulative):
• non-legislative acts
• of general application
• to supplement or amend
• certain non-essential elements of the legislative act

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 (Art.290(2) TFEU)


o legislative acts shall explicitly lay down the conditions to which the
delegation is subject; these conditions (condition must be possible to revoke
the delegation of powers at all times) may be as follows:
• EP shall act by a majority of its component members + Council by QMV)
o Exchanges with and control by EU legislative institutions (MS (are informerd
of how commission will lose his delegated powers) consulted,
Interinstitutional agreement on better law making, 2016)
o Example:
• Legislative act providing for the adoption of delegated acts (see Articles
219(1) & 228 thereof): Regulation (EU) No 1308/2013 of the European

European Law 2016-2017 Stijn Debie 86


Parliament and of the Council of 17 December 2013 establishing a
common organisation of the markets in agricultural products (available:
see pdf)

• Delegated act adopted thereupon: Commission Delegated Regulation


(EU) 2016/1614 of 8 September 2016 laying down temporary exceptional
measures for the milk and milk products sector in the form of extending
the public intervention period for skimmed milk powder in 2016…
(available: see pdf)

b. Adoption of implementing acts


o Reminder: ‘tertiary sources of EU law’: delegated act = looks up,
implementing act = looks down: how should MS implement the law?
o Definition of implementing (=uitvoerende) act (Art.291(1-2) TFEU: to provide
uniform conditions of how EU law shall be implemented).
• Implementation is normally for the MS (see also Art.4(3) TEU & last
section of the course)
• Yet, it may be necessary to ensure uniform conditions for implementing
legally binding Union acts at EU level -> EU implementing act

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

When? acts of general scope, programmes with substantial


implications (see also: agriculture, fisheries, environment, security
and safety, health or safety common commercial policy, taxation)

How? If negative opinion by the committee -> Commission shall not


adopt -> amend or appeal (special rules in case no opinion by
committee)

European Law 2016-2017 Stijn Debie 87


ii. Advisory procedure

When? cases not covered in the list above or justified

How? Commission decides taking the utmost account of the


conclusions drawn from the discussions within the committee (but
commission is not bound to the committee!).

• Exchanges with and control by Member States (EP or Council informed


and may signal an excess of implementing powers in certain
circumstances)
• Example:
o Legislative act providing for the adoption of implementing acts
(see Articles 57(4) & 58(2) thereof): Regulation (EU) No 952/2013
of the European Parliament and of the Council of 9 October 2013
laying down the Union Customs Code (see pdf file)
o Implementing act adopted thereupon: Commission
Implementing Regulation (EU) 2016/2223 of 5 December 2016
concerning the classification of certain goods in the Combined
Nomenclature (see pdf file)

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.

When: read detailed outline 12 page 2 (no need to know more)

Handbook: 17-013, 17-015

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)

Reminder: distinguish from implementation/transposition periods for directives

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).

European Law 2016-2017 Stijn Debie 88


B. External decision making: How make Eu institutions decisions that bind the EU and third
states?
o Examples:
 EU & ECHR? EU Is not a party but accepts it
 EU & CETA
 EU & Paris agreement
o In brief, see Article 218 TFEU:
 Other than for the Common Commercial Policy & CFSP (more specific
clauses),
 Council (QMV, save in certain circumstances such as accession to the ECHR)
shall authorise the opening of negotiations, adopt negotiating directives,
authorise the signing of agreements and conclude them (al the big decisions
in the hands of the council).
 Commission shall submit recommendations to the Council
 European Parliament
• immediately and fully informed at all stages of the procedure (new
from the Treaty of Lisbon)
• gives its consent in settings of constitutional importance or where
covering fields to which ordinary legislative or consent procedure
apply
• or in other cases is merely consulted

Note: EP (has to give their consent) has in these circumstances also a say in external
relations.

Reminder: control ex-ante of the legality of international agreement by the CJEU

Note: EU competences in the field of external relations may either be exclusive or


shared (see Art.3(2) TFEU), this may result in the conclusion of so-called ‘mixed
agreements’ where both EU and Member States are parties;
EU + MS are competent: see CETA: both for signature as for entry into force

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.

European Law 2016-2017 Stijn Debie 89


(2) This is possible, see handbook 25-006: example of an exclusive competence where
nevertheless, Member States where entitled to take part in the negotiation and conclusion of a
trade agreement.

DOCUMENT ANALYSIS 11 NOT BE DISCUSSED IN DETAIL CLASS, IT MERELY PROVIDES FURTHER


ILLUSTRATIONS OF ELEMENTS ALREADY DISCUSSED IN SECTIONS III & IV

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

C. Differentiated decision-making: Some important decisions only involve certain Member


States

Reminder: variable geometry in the EU Treaties


Eg. Eurozone: Art.136-138 TFEU & Protocol 14 (Eurogroup)
Eg. Position of the UK &, Ireland (Protocol 21) & Denmark (Protocol 22) in respect of
the Area of Freedom, Security and Justice
Eg. Schengen acquis: Protocol 19, see UK, Ireland and Denmark
Eg. Enhanced cooperation: Art.20 (1) TEU -> special authorization procedure (not all
MS are always involved)

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

Document analysis 13 - THE RULE OF LAW AND FUNDAMENTAL RIGHTS IN THE EU


LEGAL ORDER
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

- Abstracts from the Treaties

European Law 2016-2017 Stijn Debie 90


o Article 263 TFEU (Annulment actions against EU acts)
o The Court of Justice of the European Union shall review the legality of legislative acts,
of acts of the Council, of the Commission and of the European Central Bank, other
than recommendations and opinions, and of acts of the European Parliament and of
the European Council intended to produce legal effects vis-à-vis third parties. It shall
also review the legality of acts of bodies, offices or agencies of the Union intended to
produce legal effects vis-à-vis third parties.
o It shall for this purpose have jurisdiction in actions brought by a Member State, the
European Parliament, the Council or the Commission on grounds of lack of
competence,
o infringement of an essential procedural requirement, infringement of the Treaties or
of any rule of law relating to their application, or misuse of powers.(…)
o Any natural or legal person may, under the conditions laid down in the first and
second paragraphs, institute proceedings against an act addressed to that person or
which is of direct and individual concern to them, and against a regulatory act which
is of direct concern to them and does not entail implementing measures.(…)
o The proceedings provided for in this Article shall be instituted within two months of
the publication of the measure, or of its notification to the plaintiff, or, in the
absence thereof, of the day on which it came to the knowledge of the latter, as the
case may be.

o Article 268 TFEU (liability in damages of the EU)


o The Court of Justice of the European Union shall have jurisdiction in disputes relating
to compensation for damage provided for in the second and third paragraphs of
Article 340.

o Article 340 (The specific case of non-contractual liability)


o In the case of non-contractual liability, the Union shall, in accordance with the
general principles common to the laws of the Member States, make good any
damage caused by its institutions or by its servants in the performance of their
duties.

Abstracts from the Ledra judgment

Background: helping EU states in financial difficulties v. protecting individual rights

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

European Law 2016-2017 Stijn Debie 91


the financial stability of the Member States.
The ESM is a Treaty signed by 17 EU Member States. It is very important to bear in mind that the
ESM Treaty was signed outside the framework of the EU and accordingly is not part of EU law
although all its members are EU Member States too. The signatories of the ESM have agreed to
request assistance to EU institutions, the Commission and the European Central Bank (hereafter:
ECB), to implement the objectives of the ESM but in that context these institutions are acting
outside of their traditional EU competences.

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.

JUDGMENT OF THE COURT (Grand Chamber) 20 September 2016

In Joined Cases C-8/15 P to C-10/15 P,

Ledra Advertising Ltd, (Cyprus) (C-8/15 P), (…) appellants,

the other parties to the proceedings being:

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.

European Law 2016-2017 Stijn Debie 92


[…]Forms of order sought
The appellants claim that the Court should:
set aside the orders under appeal […];
send the cases back to the General Court.

The Commission and the ECB contend that the Court should:
(b) dismiss the appeals;
(c) order the appellants to pay the costs.

Arguments of the appellants


The appellants complain that the General Court erred in law in holding, that the duties conferred on
the Commission […] do not entail the exercise of any power to make decisions of [its] own. In so
doing, the General Court […] disregard[ed] the fact that the Commission signed the Memorandum of
Understanding although it contains an unlawful condition. Thus, it is the Commission […]that [is]
truly responsible for the bail-in of the Cypriot banks concerned. The Commission and the ECB dispute
the merits of the appellants’ arguments.

Findings of the Court


By their plea, the appellants call into question the General Court’s assessment concerning the role of
the Commission […] in the adoption of the Memorandum of Understanding. They submit in
particular that [the Commission] [is] the true [author] of the bail-in implemented in Cyprus and that
the General Court erred in law when examining their argument that the Commission failed to ensure
that the Memorandum of Understanding was in conformity with EU law.

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.

European Law 2016-2017 Stijn Debie 93


It should be pointed out that the tasks conferred on the Commission […] within the ESM Treaty do
not alter the essential character of the powers conferred on those institutions by the EU and EU
Treaties. […] As regards the Commission in particular, it is stated in Article 17(1) TEU that the
Commission ‘shall promote the general interest of the Union’ and ‘shall oversee the application of
Union law’ (Pringle). Furthermore, the tasks allocated to the Commission by the ESM Treaty oblige it,
to ensure that the memoranda of understanding concluded by the ESM are consistent with EU law
(Pringle). [In particular, the Commission should pay due regard to Article 17(1) of the Charter of
Fundamental Rights of the EU according to which everyone has the right to own his or her lawfully
acquired possessions.] Consequently, the Commission, retains, within the framework of the ESM
Treaty, its role of guardian of the Treaties as resulting from Article 17(1) TEU, so that it should refrain
from signing a memorandum of understanding whose consistency with EU law it doubts.

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.

Questions document analysis 13


1. What is the link between the General Court and the Court of Justice? How is that link
reflected in the abstracts of the ruling in the Ledra case?
The general court and court of justice of 2 parts of one institution. If a case is first brought to
the general court, you can appeal to the court of justice.
- The annulment-procedure by non-privileged actors is first handled in general court and
appeal is possible in court of justice
- the annulment-procedure by privileged actors is directly handled by the court of justice
2. Why do you think that the Court of Justice (as well as the General Court) dismissed the
action for annulment under Article 263 TFEU?

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

European Law 2016-2017 Stijn Debie 94


Detailed outline 13

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.

o National constitutional courts and the primacy of EU law.

European Law 2016-2017 Stijn Debie 95


- Framing the problem: Kompetenz-Kompetenz & fundamental rights
- Solutions: ex-ante & ex-post
 CJEU, Case 11/70 Internationale Handelsgesellschaft [1970]
ECR 1125: fundamental rights: sort of condition, these has
to be the same: compliance by EU with fundamental rights +
komp-komp.: German Court said: as long as the EU
accomplish with this, we will follow it BUT we keep an eye
on these conditions.
 Ongoing dialogues (eg. debates surrounding the Data
Retention Directive): constitutional courts are concerned:
• This is also a sort of checks & balances
• Constant improvement rather than a threat.

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:

- Some MS have an article in their constitution that provides the


primacy of EU law (= ex ante)
- Some countries still hesitates:
 Kompetenze-Kompetenz: constitutional court sort of
“acknowledged” the primacy but the ultimate arbiter
remains under the competent of the constitutional national
system (= acceptance within the conditions which we
define). This has as result that sometimes there are
adaptations necessary after EU acts/rulings. (= ex post)
o Declaration 17 annexed to the final act which adopted the Lisbon Treaty (?)

b. Consequences of the primacy of EU law over national law

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.

o Duty of consistent interpretation


- CJEU, Case C-106/89 Marleasing [1990] ECR p.I-4135: all national authorities are
under a duty to interpret national law in conformity with EU law, a way that is
consistent with Union law.
 May be a solution, manner to solve or avoid conflicts.
 Flexible: in any way interpret in a Union way if it’s not interpreted contra
legem!

European Law 2016-2017 Stijn Debie 96


- CJEU, Case 212/04, Adeneler [2006] ECR p.I-6057: before expiry of transposition
period of Directives,
‘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’
= you cannot interpret nat law in a manner which might seriously threaten Union
law in the future.
- No interpretation contra legem (CJEU, C-334/92, Wagner Miret) + no
determination/aggravation of criminal liability (CJEU, Case 80/86 Kolpinghuis
Nijmegen)

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.

Adjusted duty of consistent interpretation (Adeneler): applicable before expiry of transposition


period

Certain forms of Direct effect of Directives: after the expiry of the transposition/implementation
period = correct

Abstracts from Adeneler C-212/04

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).

European Law 2016-2017 Stijn Debie 97


115 Accordingly, where a directive is transposed belatedly, the general obligation owed by national
courts to interpret domestic law in conformity with the directive exists only once the period for its
transposition has expired.

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.

o State liability in damages sufficiently serious breaches of EU law


- Origins
 CJEU, Joined Cases C-6/90 and C-9/90, Francovich [1991] ECR p.I-5357: MS
have to pay the damages caused under their “obligation”.
- Rationale (= motivering)
 Cumulative conditions
• CJEU, Joined Cases C-46/93 & C-48/93, Brasserie du Pêcheur &
Factortame [1996] ECR I-1029:
i. The provision of EU law that has been breached must be intended
to give rise to rights for individuals.
ii. The must be a sufficiently serious breach of EU law: whether the
Member State manifestly and gravely disregarded the limits on its
discretion.
iii. There must be a direct causal link between the breach of the
obligation borne by the State and the damage sustained by the
injured parties.
o State liability of breaches of EU law by which state organs? (eg. Judiciary, CJEU, Case C-
224/01, Köbler [2003] ECR I-10239): certainly legislative power,… (?).

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):

European Law 2016-2017 Stijn Debie 98


The provision of EU law that has been breached must be intended to give rise to rights for
individuals
The breach must be sufficiently serious

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:

Intended to confer rights on individuals

Sufficiently clear, precise and unconditional

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.

European Law 2016-2017 Stijn Debie 99


[…][T]he vigilance of individuals concerned to protect their rights amounts to
an effective supervision in addition to the supervision entrusted by articles
169 and 170 to the diligence of the commission and of the member states.”

o doc.analysis.12. Can you explain the notion of ‘dual vigilance’?


o There are 2 parties that need to be vigilant (waakzaam) on the
implementation and enforcement of EU law to ensure the good
functioning of the EU legal order:
 EU institutions + member states
 Individuals
o Fundament l idea of the EU: we should pay attention that EU law
is correctly enforced.
o In order to be capable of producing direct effect, a provision of EU law
must be:
i. intended to confer rights on individuals (e.g.: art. 157 TFEU)
ii. sufficiently clear, precise and unconditional

o Different functions of direct effect: vertical & horizontal


o Direct effect of the different sources of EU law
o The Treaties
 Vertical direct effect: CJEU, Case 26/62, van Gend &
Loos: an individual uses the EU law against a stat/ public
authority (in this case an importer company against the
Netherlands).
 Horizontal direct effect: CJEU, Case 43/75, Defrenne II: if
you want to Treaty provisions (=necessary!!) against
another private entity, e.g. your employer, an
undertaking,… (in this case art. 157 TFEU).
Note: this distinction is important for e.g. directives
because it has never horizontal direct effect BUT you can
claim damages from a State for the non-fulfillment of the
directive.

o The Charter of Fundamental Rights of the EU


 Rights v. Principles (no direct effect): Art.52(5) CFEU
• Principles are more abstract and therefore has no
direct effect (art. 52 (5) CFEU)
• Art. 51 (1) CFEU: states that the Charter is addressed
to EU institutions, agencies and MS. SO can be used
against the MS: vertical. BUT no evidence in the text
of the Charter, that it can create obligations for
private parties. Horizontal? Not sure.
 Vertical v. Horizontal effects (?): Art.51(1) CFEU
o General principles of EU law
 Eg. the general principle of non-discrimination on
grounds of age given expression in Directive 2000/78
may be relied upon to set aside contravening domestic

European Law 2016-2017 Stijn Debie 100


rules in a dispute between private persons (CJEU, Case C-
555/07 Kücükdeveci)
o International agreements between the EU and third states
 Examine ‘the spirit, the general scheme and the terms of
the general agreement’ in addition to the classic criteria
(CJEU, Joined cases 21 to 24/72, International Fruit)
Agreements concluded under GATT/WTO: in principle,
no direct effect
o Legislative & non-legislative acts
 Directives (delegations of result for the MS’s):
• Directives that are properly implemented take effect
through national implementing measures
• Directives may have no direct effects before expiry
of the transposition period (= to give the MS some
time it doesn’t have its full effect before expire
time).
• Directives that are not (properly) implemented, after
expiry of the transposition period:
o ‘Ascending (“upward”) vertical’ direct effect &
no horizontal direct effet (CJEU, Case 41/74,
Van Duyn)
 Individuals can rely on the
directive against the State, the
State can’t rely on the directives
to individuals.
 Logic? Directives are addressed
to States and they have
obligations, the individuals
haven’t (only if the state fulfil
their obligations and “transform”
the directive).

 Broad definition of ‘State’:

- qua employer or public authority : CJEU,


Case 152/84, Marshall v Southampton and
South-West Hampshire Health Authority:
hospital (public entity, part of the state: public
employer).

-“a body, whatever its legal form, which has


been made responsible, pursuant to a
measure adopted by the State, for providing a
public service under the control of the State
and has for that purpose special powers
beyond those which result from the
normalrules applicable in relations between

European Law 2016-2017 Stijn Debie 101


individuals is included in any event among the
bodies against which the provisions of a
directive capable of having direct effect may
be relied upon” (CJEU, Case C-188/89, Foster)

!!SO ascending vertical effect is actually


applicable in a “broad way”.

o No ‘descending vertical’ direct effect: CJEU, Case


C-91/92, Faccini Dori:
 You cannot rely on a directive against
another private party same logic (see
above)
 Note:
-Ascending vertical direct effect may have
adverse repercussions (negatieve
gevolgen) on (private) third parties in so-
called ‘triangular’ relationships (CJEU,
Case C-201/02, Delena Wells): a private
party entity used a public entity: vertical
ascending because of this challenge, the
public entity could not perform his
contrat with a third party: indirect effect
of Delena Well’s charge: still we can rely
on the directive even if there is on
adverse repercussion on a third.
-Reminder on the principle of primacy (=
even if no direct effect): duty of
consistent interpretation & liability in
damages (above + further complex case
law beyond the scope of this course).

 Decisions: both vertical and horizontal effect if they are


sufiiciently clear, precise and unconditional.
3. Conclusion
o Complementarities of primacy and direct effect
 Eg. check if:
(i) consistent interpretation possible,
(ii) if not, direct effect and
(iii) if not, state liability in damages?
 ‘Dual vigilance’ for the enforcement of EU law
 Crucial role of national lower jurisdictions: main/ normal judge of EU law
is the national judge (applies EU law on a daily basis).
 Important role of the preliminary ruling procedure (Art. 267 TFEU) to
ensure the junction between national courts and CJEU ( further discussed
below): every national judge has to rely on Union law: correctly interpret
EU law ask guidance to the CJEU.

European Law 2016-2017 Stijn Debie 102


 Note: CFSP: CFSP measures in the CFSP are not entitled with direct
effect!!! Special system (but not discussed in this course).

B. The EU legal order is developing special relationships with other international legal orders:
The EU is increasingly asserting itself on the international scene

= Chapter 22, 22-049 to 22-058.

THE ELEMENTS BELOW CONSTITUTE A MERE REMINDER. RELATED EXPLANATIONS


HAVE BEEN MADE ELSEWHERE IN THE COURSE. THESE ELEMENTS ARE BROUGHT
TOGETHER HERE TO ILLUSTRATE THEIR COMPLEMENTARITY FOR THE PURPOSE OF
ILLUSTRATING THE EU’S ROLE 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!

o The EU has legal personality (Article 47 TEU).


o The Common Foreign and Security Policy

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)

C. The EU possesses a remarkable implementation and enforcement machinery: The


sophisticated multi-layered implementation & enforcement system of the EU

= Chapter 17, 17-001 to 170-005 & Chapter 13, 13-078 to 13-086.

European Law 2016-2017 Stijn Debie 103


1. Decentralized implementation and enforcement tools: Implementation and
enforcement primarily rely on domestic systems
o Member States shall adopt all measures of national law necessary to
implement legally binding Union acts (Article 291(1) TFEU).
= MS: a positive obligation to give full effect to EU law, not only a negative
obligation to not breach EU law: national legal systems have the responsibility
to implement & enforce (=give effect to EU law: obligation of means).

a. EU law takes effect in and through domestic legal systems


o Reminder: primacy (and its consequences) + direct effect
o Member States are under a duty (negative but also positive):
- to give full effect to EU law through their domestic legal systems
(Article 291(1) TFEU)
- to provide remedies sufficient to ensure effective legal protection in
the fields covered by Union law (Art.19(1) TEU)
o The main fora for disputes on the interpretation and implementation of EU law
are domestic courts or tribunals:
- Duty of sincere cooperation binding on all domestic authorities (Article
4(3) TEU).

b. The principle of national procedural autonomy and its limits


o The principle of national procedural autonomy (CJEU, Case 33/76 Rewe and
Case 45/76 Comet)… (decentralized implementation + enforcement, MS are
free to decide any procedural mechanism to use to implement EU law BUT
centralized monitoring is necessary, see 2.)
Example: EU regulation to prevent pollution, France and Belgium can choose their
own legal rules: in Belgium very high fine, in France 6 months imprisonment.
o… is framed by the requirement that national procedural law provide:
- effective protection of EU rights & a protection equivalent to that of
national rights (CJEU, Case 33/76 Rewe and Case 45/76 Comet): MS
hve freedom of procedure if the procedure is effective: 1EUR fine is
useless.
- complies with EU fundamental rights (CJEU, Case C-617/10, Fransson):
MS used criminal la<, then this must comply with EU fundamental
rights.

2. Centralized monitoring ….under the careful supervision of the European


Commission & CJEU
See also extracts from R. Schütze on Toledo: p.192-196 & 182-188
= Commission & CJEU as monitors by using enforcement actions & preliminary
rulings.
Note: the EU legislature may itself decide to regulate certain aspects of the
implementation and enforcement of EU law

a. Certain EU institutions are in charge of monitoring implementation,


interpretation and application of EU law

European Law 2016-2017 Stijn Debie 104


o Reminder:
- Commission as guardian of the EU Treaties (Art.17(1) TEU)
- CJEU shall ensure that in the interpretation and application of the
Treaties the law is observed (Art.19(1) TUE)

b. The Commission (or the Council in exceptional cases) may be empowered to


adopt implementing acts at EU level (Article 291 TFEU).

o Reminder:
- EU implementing acts set uniform conditions for implementing legally
binding Union acts
- See discussion of implementing acts and procedure for their adoption

c. Enforcement actions against Member States before the CJEU


o ‘Dual vigilance’: infringement (= enforcement action against the MS wo does
not comply with EU law + enforcement to do so ) actions (institutional and
‘objective’ enforcement) & role of private parties litigating EU law before
domestic courts (private enforcement).
i. Procedure initiated by the Commission as the ‘guardian of the Treaties’
(Article 258TFEU)
 Commission will trigger an infringement action:
 If the Commission considers that a Member State has
failed to fulfil an obligation under the Treaties… (by a
duty of report or complains of individuals,…):
o Discretion (“ naar goeddunken” very important!!)
of the Commission (importance of complaints
brought to its attention) = gives the Comm. To
possibility to investigate the MS
o A broad definition of ‘a Member State’ (see
above).

o A failure to fulfil an EU law obligation & link with


State (Eg. CJEU, Case C-265/95 Commission v
France on ‘Angry farmers’): preventing the
import from products from Spain: failure of the
French authorities to prevent breaches
 … the Commission ‘shall’:
o Informal stage (simple letter: we are concerned..)
= Letter of formal notice
o Reasoned opinion: … if the State does not
comply, the Commission may (not obliged) take
the matter before the CJEU. (= setting a deadline
for the MS to comply with + legal arguments.
o Commission discretion on the need to pursue the
procedure at all stages
o Time limits (duty for the commission to set these
limits).

European Law 2016-2017 Stijn Debie 105


o Rights of defense : legal framework of the
dispute set in the pre-litigation stage &
possibility to respond

ii. Procedure initiated by a Member State (Article 259 TFEU)


o MS taking another MS to Court: very sensitive matter/
delicate procedure! Does not happen a lot.
o Possibility for the Member States to initiate infringement
actions (rare)
o Duty to bring the matter before the Commission
beforehand : Commission may decide to take the lead
but Member State not bound by the Commission’s
position if silence or refusal to proceed

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 Simplified 1st infringement action if the


infringement of EU law lies in a failure to notify
measures requested for the transposition of
(legislative) directives (Art.260(3 TFEU): lump
sum and/or penalty payment as from the first
infringement action.
= fast back infringement procedure idea: it is a
basic duty MS need to notify how they
implement directives: because otherwise how do
we know? You are implementing?

d. The preliminary ruling procedure leading to a dialogue between domestic


courts and the CJEU (Article 267 TFEU)

European Law 2016-2017 Stijn Debie 106


= link between national judges and the CJEU to control, to ensure the consistent
interpretation of EU law.
‘Dual vigilance’: infringement actions (institutional and ‘objective’ enforcement) &
role of private parties litigating EU law before domestic courts (private enforcement)

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).

i. Any court or tribunal of a Member State…


The CJ looks at ‘whether the body is established by law, whether it is
permanent,whether its jurisdiction is compulsory, whether its
procedure is inter partes, whether it applies rules of law and whether it
is independent’ (CJEU, Case C-54/96 Dorsch Consult)

ii. ... may/must ask a question on the interpretation of EU acts of EU


institutions, bodies, offices or agencies
o See for instance the procedure in CJEU, Case 6/64, Costa v. ENEL
(doc.analysis.12.)
o See for instance the procedure in CJEU, CJEU, Case 121/85,
Conegate (Section III.E. of the course)

iii. …. may/must ask a question on the validity of EU acts of EU institutions,


bodies, offices or agencies (see also below, as a complement to actions in
annulment)
Eg. CJEU, Joined Cases C-92/09 and C-93/09, Schecke (violation of the
right to data protection)

Eg. CJEU, Case C-236/09, Test-Achats (violation of the right not to be


discriminated against on the ground of sex)

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.

European Law 2016-2017 Stijn Debie 107


o The obligation to refer is mitigated by the ‘acte clair’ doctrine (CJEU,
Case 283/81, CILFIT):
“16 [...] the correct application of [EU] law may be so obvious as to
leave no scope for any reasonable doubt as to the manner in which
the question raised is to be resolved.”

vi. The CJEU’s response


o Preliminary rulings by the CJEU must be necessary in order to enable
the national court or tribunal to give judgment (possibility for the
CJEU to decline the reference) or else the Court may decline to
answer the preliminary question.
Eg. CJEU, Case 104/79, Foglia [1980] ECR 745
o All national courts and authorities must apply EU law as it results
from the ruling by the CJEU: a CJEU ruling is binding & uniform for all
MS
o (Different styles of preliminary rulings by the CJEU)

Note:

- Article 267 last paragraph TFEU on minimum delays if person in custody


- Does not apply to CFSP.

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.

European Law 2016-2017 Stijn Debie 108


• Also about the enforcement action: there is a simplified first infringement action possible
when the member state has failed to notify the transposition measures of a directive. So
then a lump sum/ penalty payment is then already possible. I was wondering if there also
isn’t a reasoned opinion necessary (as in the simplified procedure of the second
infringement action).

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?

European Law 2016-2017 Stijn Debie 109


The grounds of annulment in the second paragraph of Article 263 hold true for all applicants
(privileged, quasi-privileged and non-privileged).

• What does ascending vertical direct effect mean exactly?

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...

• Degressively national representation:


o Bigger states have a smaller representation than they should have, smaller states
have a bigger representation then they should have.
• Recommendations:
o Policy instrument to try & influence actors in specific field.
• Opinions:
o Act which is adopted in a specific legislative procedure.

European Law 2016-2017 Stijn Debie 110


COURSE 15
Detailed outline

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

o A complete system of legal remedies & procedures (?)


- CJEU, Case 294/83, “Les Verts”
“23 It must first be emphasized [...] that the [European Union] is [...] based on the
rule of law, inasmuch as neither its Member States nor its institutions can avoid a
review of the question whether the measures adopted by them are in conformity with
the basic Constitutional Charter, the Treat[ies]. [...][T]he Treat[ies?] established a
complete system of legal remedies and procedures [...]” (see further below)

1. The rule of law in the EU: EU institutions and the Member States are subject and
accountable to the law

a. The three dimensions of the rule of law in the EU


- The ‘rule of Union law’: to ensure compliance by Member States with Union law as
requested by virtue of the principle of primacy (see section on primacy above) (= MS
has to state in a certain way with Union law)
- The ‘rule of law for the Union itself’: to ensure compliance by EU institutions and
bodies to the hierarchy of EU norms (= Union should comply with the rules itself).
- The ‘Rule of Law within the Union’: Member States’ shared constitutional values
and foundation for membership of the Union (see Art.2 TEU) (= the idea that MS
have agreed on the values in a constitutional way).

b. The question of the scope of the protection of EU fundamental values in the


EU: EU institutions and the Member States ought to respect the fundamental
values but…
o Reminder:
 sources for the protection of EU fundamental rights (see section on
EU primary law)
 principle of attributed competences
o EU Fundamental Rights law (as defined by the sources discussed above) is
binding on:
 EU institutions, bodies, offices and agencies of the Union
• ‘Rule of law’ for the Union itself’
 Member States when they are acting within the scope of Union law
(CJEU, Case C-617/10, Fransson):
E.g. when they are implementing Union law
= Rule of Union law
 How about compliance with Art.2 TEU?
= ‘Rule of Law within the Union’

European Law 2016-2017 Stijn Debie 111


2. Judicial enforcement of the rule of law for the Union itself
= Chapter 22, 22-023 to 22-035
Note: the special case of the CFSP
Reminder: EU law (including EU fundamental rights) is binding on the Member States
by virtue of the principle of primacy (see sections on primacy, direct effect and the
relevant implementation and enforcement machinery)

o How do we ensure that EU institutions themselves comply with the hierarchy of


EU norms?

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).

ii. Time limit (Art.263 para.6 TFEU) : within 2 months

iii. Different types of applicants

 Privileged applicants (Art.263 para.2 TFEU)


 Quasi-privileged applicants (Art.263 para.3 TFEU)
 Non-privileged applicants (Art.263 para.4 TFEU)

(1) Proceedings brought against an act addressed to that person


(3) Proceedings brought against an act which is of direct concern (a)
and individual concern (b) to the applicant

(a) Direct concern (= if the EU increases tariff on importing


products from third countries): When the act directly affects
the legal position of the applicant (CJEU, Case 41-44/70,
International Fruit)

(b) Individual concern:


CJEU, Case 25/62, Plaumann:
“persons other than those to whom an [EU act] is addressed
may only claim to be individually concerned if that [act]
affects them by reason of certain attributes which are
peculiar to them or by reason of circumstances in which they
are differentiated from all other persons and by virtue of
these factors distinguishes them individually just as in the
case of the person addressed.”
= failed the test of individual concern.

European Law 2016-2017 Stijn Debie 112


The fact that the number of impacted persons is small or
known in advance is not in itself sufficient if the act is worded
in abstract terms (CJEU, Cases 789 and 790/79, Calpak)

Examples of circumstances in which individual concern has


been accepted:

Eg. CJEU, Case C-309/98, Cordorniu

Eg. CJEU (General Court), T-315/01, Kadi I

(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)

Historical background: attempts to broaden the rules on


standing for non-privileged applicants

A regulatory act is any act “of general application apart from


legislative acts” (formal/procedural definition: CJEU, Case C-
583/11 P Inuit et al.v Parliament and Council) (= NO
legislative act).

Example of a regulatory act that does not entail


implementing measures: Commission [Implementing]
Decision prohibits the marketing of materials and Articles
containing triclosan intended to come into contact with
foodstuffs and leaves no discretion to the Member States
(CJEU (General Court), T-262/10, Microban)

= you need to show that this regulatory act not implement


measures & challenges this in the MS based on these act 6.
The national judge can ask a question to the CJEU.

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.

iv. Grounds for annulment (Art.263 paras.2-3 TFEU)


- Lack of competence
- Infringement of an essential procedural requirement
- Infringement of the Treaties or any rule of law relating to their
application Misuse of powers

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!

European Law 2016-2017 Stijn Debie 113


v. Effect of the ruling by the CJEU in an annulment action (Art.264 TFEU)

- Reminder: General Court & Court of Justice: Doc.analysis.13.


What is the link between the General Court and the Court of
Justice? How is that link reflected in the abstracts of the ruling in
the Ledra case?

= 2 parts of 1 institution, if the case is brought by institutions +


MS = CoJ, non- privileged parties = GC.

- Finding of a breach of EU higher ranking law -> annulment


(possible provisional adjustment of legal effects)
Eg. Kadi saga (reminder)

- Interpretative straightjackets

b. Action against an EU institution for failure to act: Article 265 TFEU

- Before the CJEU


- In essence, it is the mirror image of annulment actions (against
an EU act) but for failure to act

c. Calling into question the validity of an EU act in a dispute against another EU


act before the CJEU : Plea of illegality, Article 277 TFEU
A parasitical claim: challenge the validity of secondary law in the context of a
challenge against tertiary law
= questioning the validity of the EU act.

d. Preliminary references calling into questions the validity of an EU act in a


dispute before domestic courts: Article 267(b) TFEU above
o Reminder: dispute before domestic courts + duty to refer to CJEU
o Note: useful complement to the narrow access to the CJEU for non-
priviledged applicants (see above)

e. Seeking the EU (non-contractual) liability in damages for breaches of EU law


before the CJEU: Article 268 & 340(2-3) TFEU
o Parallel with State liability in damages (see above): 3 conditions
o CJEU, Case C-352/98 P, Bergaderm: same criteria as to find a MS
liable for damages.

Doc.analysis.13. What is the mechanism (other than annulment


action) that the Court of Justice decides to rely upon in order to

European Law 2016-2017 Stijn Debie 114


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

3. Political monitoring of the Rule of Law within the Union

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

4. A complete system of remedies?

= Chapter 6, section 6-017

See doc.analysis.13. and the recent ruling in CJEU, Joined Cases C-8/15 P to C-10/15 P,
Ledra

(End.)

LOL not the end:

Q&A: Detailed outline 15

European Law 2016-2017 Stijn Debie 115


• Can you say that when mr. Kadi (who was put on the list of dangerous people of the UN
Security Council) is not individually concerned? Because he, but also all other people on
that list, are concerned with the measures taken by EU due to that list. Or has CJEU
accepted the “individually concern” of mr. Kadi only because his name was wrongly put on
that list?
Kadi: the EU act was addressed to Member States but he was named in the annex so individually
concerned still.

• 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

European Law 2016-2017 Stijn Debie 116


need to follow. So can you state that recommendations and advices are regulatory acts?
And if not, what are they?

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

European Law 2016-2017 Stijn Debie 117


(1) Correct
(2) Correct
(3) Yes, The principle of direct effect is namely a technique developed to guarantee the
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

European Law 2016-2017 Stijn Debie 118


where the use of two legal bases is not liable to undermine the rights of the parliament.
Procedures are incompatible when:
 This leads to an encroachment upon the EP’s rights.
 Unanimity cannot be combined with qualified majority (e.g. art. 113, 115 and art. 114 TFEU)
Procedures are compatible when:
 The combination of the procedural requirements assured the highest degree of involvement
for the EP
 OLP can be combined with qualified majority (e.g. Art. 114 TFEU with art. 207 TFEU)

• 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.

Exam review session


• In question 2.2, I had also found ‘Tourism’ (art. 135 TFEU) as a legal basis for the regulation.
It also requires an ordinary legislative procedure, so the procedures of the three legal bases
are compatible. Is this also correct?
Handbook 7-016. When the three prescribed procedures are the OLP then it is correct to state that
the three legal bases are compatible. However keep in mind that a single legal base is preferable to
multiple ones. This must also be justified by the fact that the different objectives are equally
important and that they are inseparably linked. Otherwise you should apply the centre of gravity
theory which means you must look for the legal base that has a more predominant role.

• 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

European Law 2016-2017 Stijn Debie 119


simplified revision procedure cannot increase the competences, but that you don’t know
the outcome?
An increase of competences would mean that the Union can act in a certain area in which the
competence still lies in the hands of the Member States. It would mean that the Union will be able to
act whereas this power is not conferred by the Member States. Articles 3-6 TFEU enumerate the
competences of the EU and the Member States. Indeed in this case it is difficult to know whether the
budgetary council would increase the Union’s competences. In your answer you should explain that
the simplified revision procedure cannot increase the competences of the Union and that you
consider this will / will not (you make a decision on the exam) be the case in casu. (i.e. you make a
hypothesis)

• 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

European Law 2016-2017 Stijn Debie 120